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Martin Paul Eve

Professor of Literature, Technology and Publishing at Birkbeck, University of London

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The problem with non-lawyers, like me, speculating on legal matters is that there’s a risk of scaremongering or just plain inaccuracy. Not that this really ever stops the practice – and it won’t here. In any case, I wanted to re-state the question that I raised yesterday and that I’d like addressed about CC BY and defamatory attribution.

Let us say that I have written an article about an important historical topic, for instance: the Holocaust.

A bad actor then modifies the article to make out that I am a Holocaust denier and attributes the modified version to me in a way that is damaging to my reputation. They indicate at the end of the modified version that they have made changes.

Traditionally, with no open licensing: In this case, I would sue the bad actor for violation of my moral rights (in UK law: the right to object to derogatory treatment of the work and the right to object to false attribution [although is the attribution actually false if they say that it was modified?]) and probably also for libel, for attributing words to me that I did not utter. I could also probably resort to suing over economic rights, here, as the bad actor had no permission to modify and redistribute the work.

Under a CC BY license: I assume that, in this case, I cannot sue the bad actor for violation of my moral rights as I have waived these. Specifically, on moral rights, the CC BY 4.0 international license asserts that “to the extent possible, the Licensor waives and/or agrees not to assert any such rights held by the Licensor to the limited extent necessary to allow You to exercise the Licensed Rights, but not otherwise”. In this instance, I must waive the moral right to object to derogatory treatment of the work, in order to allow modifications. I must also waive the right to object to false attribution, so that the original can be credited to me. (Again, note also, the attribution here is not technically false if the bad actor has said that they have modified the original.)

A further point: the CC BY license specifies (clause 3.a.3) that, “If requested by the Licensor, You must remove any of the information required by Section 3(a)(1)(A) [attribution] to the extent reasonably practicable”. The “to the extent reasonably practicable” is there because if something is already in print, it may not be reasonably practicable to pulp 200 copies of a book. However, I could imagine a situation where one specifies, alongside the CC BY license, that “if modifications are made to this work, it shall not be attributed to the original author, but the modified version must prominently display a link to the original version”. This could then ensure against false attribution while also allowing readers to view the original work for verification.

The questions for me are:

  1. Could I still sue the bad actor for defamation/libel or any other reputational damage through their modification under the CC license? What would be the chances of success? Is this separate from the moral rights of copyright that I have waived?
  2. How likely is it that bad actors will take advantage of this? Cases like the Irving libel trial lead me to believe that there are real-world instances where this could matter.
  3. Could a pre-emptive non-attribution clause protect against such bad actors?