Subject: Re: Jurisdictional neutrality (was Re: Copy-Back License draft for discussion)
From: David Ryan <david@einet.com.au>
Date: Wed, 27 Apr 2005 14:10:33 +1000

Brendan Scott wrote:

> Gregory Aharonian wrote:
>
>> Larry rosen responds to:
>
>
> [Discussion about 17 USC 102(b) etc]
>
>
> This discussion may be relevant in the US, but to the rest of us is 
> not all that relevant. (well - at least not until it's imposed 
> domestically by the next Bilateral [!F]TA).
>
> It would be preferable (IMO) for OSI to adopt a position of 
> jurisdictional neutrality in licenses, or, at least, encourage 
> jurisdiction specific material to be included in a severable portion 
> of the relevant license.  This would mean drafting licenses by 
> reference to actions, rather than legal constructions (eg 
> "modification" rather than "production of a derivative work").  To the 
> extent (eg in the US) a modification doesn't constitute a derivative 
> work, the actor does not need to rely on the license to create the 
> modification. 


While discussing the OVPL/OVLPL licenses with Alex, I questioned if it 
were possible to do the same.  ie to include a serverable potion of the 
license specific to jurisdiction.  For now, I'm having assessed the 
validity of the license in Australia and what changes are required to 
meet Australian law.  This will solve the problem for Australia, but 
does not solve it for other jursdictions.

I have not yet seen a license which accomplishes the method you suggest 
in a license, and would be interested if anyone has seen such 
provisions.  Assuming that Aharonian's comment "By statute or caselaw, 
neither Paris nor Berne nor TRIPS are self-executing." is true, then 
this is going to be a problem for licenses that place the jurisdiction 
to that of the author.

Regards,
David.