instituto brasileiro arte e cultura
2016 - ano martins pena

Martins Pena
 
LICENCAS
 
 
 
 
 
CCPL

Creative Commons Public Licence.

Dear iCommons Brazil participants,

Below is the superb and amazingly helpful re-translation of the license by Ronaldo Lemos da Silva Júnior of FGV, the project lead for iCommons Brazil and the moderator of this discussion from forward.

The idea of this particular document is to make clear to us at Creative Commons what substantive legal aspects of the license have changed in the process of creating the first draft of the translation/adaptation. It will prove useful both in the iCommons Brazil exercise, but also as an artifact for comparing the iCommons experience in various countries. It will also serve as a great example for other iCommons countries to follow.

I am only kicking this discussion off, but I will chime in from time to time with advice and questions specific to Creative Commons corporate policy.

In a moment I'll send another email with a few humble recommendations and pointers for having a successful discussion. Then i'll get out of the way.

Thanks,

Glenn

(re-translation below)

------------------------------------
Glenn Otis Brown
glenn at creativecommons.org
Executive Director
t +1.650.723.7572
(cc) creativecommons f
+1.650.723.8440


Attribution – NonCommercial – [Share by the same license] 1.0

[ShareAlike = Share by the same license. In Portuguese, ShareAlike cannot be translated properly.]

THE [ENTITY] CREATIVE COMMONS IS NOT A LAW FIRM AND DOES NOT PROVIDE LEGAL SERVICES. DISTRIBUTION OF THIS DRAFT LICENSE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. CREATIVE COMMONS PROVIDES THIS INFORMATION ON AN "AS-IS" BASIS. CREATIVE COMMONS MAKES NO WARRANTIES REGARDING THE INFORMATION PROVIDED, AND DISCLAIMS LIABILITY FOR DAMAGES RESULTING FROM ITS USE.

[CORPORATION = ENTITY. The term Corporation does not have a perfect translation in Portuguese.]

License

THE WORK (AS DEFINED BELOW) IS PROVIDED UNDER THE TERMS OF THIS CREATIVE COMMONS PUBLIC LICENSE ("CCPL" OR "LICENSE"). THE WORK IS PROTECTED BY COPYRIGHT AND/OR OTHER APPLICABLE LAW. ANY USE OF THE WORK OTHER THAN AS AUTHORIZED UNDER THIS LICENSE IS PROHIBITED. BY EXERCISING ANY RIGHTS TO THE WORK PROVIDED HERE, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE. THE LICENSOR GRANTS YOU THE RIGHTS CONTAINED HERE IN CONSIDERATION OF YOUR ACCEPTANCE OF SUCH TERMS AND CONDITIONS.

1. Definitions

a. "Collective Work" means a work, such as a periodical issue, anthology or encyclopedia, in which the Work in its entirety in unmodified form, along with a number of other contributions, constituting separate and independent works in themselves, are assembled into a collective whole. A work that constitutes a Collective Work will not be considered a Derivative Work (as defined below) for the purposes of this License.

b. "Derivative Work" means a work based upon the Work or upon the Work and other pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which the Work may be recast, transformed, or adapted, except that a work that constitutes a Collective Work will not be considered a Derivative Work for the purpose of this License.

c. "Licensor" means the individual or entity that offers the Work under the terms of this License.

d. "Original Author" means the individual or entity who created the Work.

e. "Work" means the work of authorship [able to be protected by copyright] offered under the terms of this License.

[Copyrightable = able to be protected by copyright. In Portuguese, copyrightable cannot be translated by a single word.]

f. "You" means an individual or entity exercising rights under this License who has not previously violated the terms of this License with respect to the Work, or who has received express permission from the Licensor to exercise rights under this License despite a previous violation.

2. Legitimate Use Rights.

Nothing in this license is intended to reduce, limit, or restrict any rights arising from [legitimate use], first sale or other limitations on the exclusive rights of the copyright owner under copyright law or other applicable laws.

[Fair Use Rights = Legitimate Use Rights. There is no legal translation for “fair use rights” neither in the Brazilian legal system, nor in Portuguese.]

3. License Grant.

Licensor hereby grants You a license valid worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright) subject to the terms and conditions of this License, to the exercise of the rights in the Work as stated below:

[I had to rephrase the paragraph above, because otherwise it could not be translated correctly into Portuguese.]

a. to reproduce the Work, to incorporate the Work into one or more Collective Works, and to reproduce the Work as incorporated in the Collective Works;

b. to create and reproduce Derivative Works;

c. to distribute copies or [records of the work,] display publicly, perform publicly, and perform publicly by means of a digital audio transmission the Work including [when] incorporated in Collective Works;

[Phonorecords = records. In Portuguese, there is no specific translation for phonorecords. I understand that phonorecords has a generic meaning, i.e., both a CD-rom, or a magnetic tape can be considered as a phonorecord. Therefore, the term “record” (gravações) is more appropriate in Portuguese.]

[As = when. The term “as” cannot be translated with the same meaning into Portuguese. I had to use “when”. Let me know if you think it is too strict.]

d. to distribute copies or [records of derivative works,] display publicly, perform publicly, and perform publicly by means of a digital audio transmission Derivative Works;

The above rights may be exercised in all media and formats whether now known or hereafter devised. The above rights include the right to make such modifications as are technically necessary to exercise the rights in other media and formats. All rights not expressly granted by Licensor are hereby reserved.

[4. Restrictions.

The license granted in Section 3 above is expressly subject to and limited by the following restrictions:

I had to rephrase the sentence above because “made subject” does not make sense in Portuguese.]

a. You may distribute, publicly display, publicly perform, or [publicly perform by digital means] the Work only under the terms of this License, and You must include a [copy of this license, or the Uniform Resource Identifier for this License] with every copy or phonorecord of the Work You distribute, publicly display, publicly perform, or publicly perform [by digital means]. You may not offer or impose any terms on the Work that alter or restrict the terms of this License [or the exercise of the rights hereunder granted to the recipients]. You may not sublicense the Work. You must keep intact all [the information] that refers to this License and to the disclaimer of warranties. You may not distribute, publicly display, publicly perform, or publicly [perform by digital means] the Work with any technological measures that control access or use of the Work in a manner inconsistent with the terms of this License Agreement. The above applies to the Work as incorporated in a Collective Work, but this does not require the Collective Work apart from the Work itself [to be subject] to the terms of this License. If You create a Collective Work, upon notice from any Licensor You must, to the extent practicable, remove from the Collective Work any reference to such Licensor or the Original Author, as requested. If You create a Derivative Work, upon notice from any Licensor You must, to the extent practicable, remove from the Derivative Work any reference to such Licensor or the Original Author, as requested.

[I had to rephrase several items above, because their English construction do not translate into Portuguese. Also, I have changed “notifications” to “information”, because “notification” has a specific and restrictive legal meaning in Portuguese.]

b. You may distribute, publicly display, publicly perform, or publicly [perform by digital means] a Derivative Work only under the terms of this License, and You must include a copy [of this license,] or the Uniform Resource Identifier [for this] License with every [copy or record] of each Derivative Work You distribute, publicly display, publicly perform, or publicly perform [by digital means.] You may not offer or impose any terms on the Derivative Works that alter or restrict the terms of this License or [the exercise of the rights hereunder granted to the recipients,] and You must keep intact all [information] that refer to this License and to the disclaimer of warranties. You may not distribute, publicly display, publicly perform, or publicly perform [by digital means] the Derivative Work with any technological measures that control access or use of the Work in a manner inconsistent with the terms of this License Agreement. The above applies to the Derivative Work as incorporated in a Collective Work, but this does not require the Collective Work apart from the Derivative Work itself to be made subject to the terms of this License.

c. You may not exercise any of the rights [above granted] to You in Section 3 in any manner that is [primordially] intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.

[I changed the order of “above” in order to make sense in Portuguese. Primarily = Primordially – Primarily has no corresponding translation into Portuguese.]

d. If you distribute, publicly display, publicly perform, or publicly perform [by digital means] the Work or any Derivative Works or Collective Works, You must keep intact [all information relating to the copyright of the Work] and give the Original Author credit reasonable [in relation to] the medium or means You are utilizing by conveying the name (or pseudonym if applicable) of the Original Author if supplied; the title of the Work if supplied; in the case of a Derivative Work, a credit identifying the use of the Work in the Derivative Work (e.g., "French translation of the Work by Original Author," or "Screenplay based on original Work by Original Author"). Such credit may be implemented in any reasonable manner; provided, however, that in the case of a Derivative Work or Collective Work, at a minimum such credit will appear where any other comparable authorship credit appears and in a manner at least as prominent as such other comparable authorship credit.

5. Representations, Warranties and Disclaimer

a. By offering the Work for public [diffusion] under this License, Licensor represents and warrants that, to the best of Licensor's knowledge [and] after reasonable inquiry:

i. Licensor [congregates] all rights in the Work necessary to grant the license rights hereunder and to permit the lawful exercise of the rights granted hereunder without You having any obligation to pay any royalties, compulsory license fees, residuals or any other payments;

ii. The Work does not infringe the copyright, trademark, [publicity rights, common law rights] or any other right of any third party or constitute defamation, invasion of privacy or other tortious injury to any third party.

[Release = Diffusion. The literal translation of the word “release” does not have an appropriate meaning for this context. The reference to “common law” does not make sense in Brazil. Also, we do not have publicity rights here.]

b. EXCEPT AS EXPRESSLY STATED IN THIS LICENSE OR OTHERWISE AGREED IN WRITING OR REQUIRED BY APPLICABLE LAW, THE WORK IS LICENSED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING THE CONTENTS OR ACCURACY OF THE WORK.

6. Limitation on Liability.

EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, AND EXCEPT FOR DAMAGES ARISING FROM LIABILITY TO A THIRD PARTY RESULTING FROM BREACH OF THE WARRANTIES IN SECTION 5, IN NO EVENT WILL LICENSOR BE LIABLE TO YOU [ON ANY LEGAL THEORY] FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF THIS LICENSE OR THE USE OF THE WORK, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

[The sentence “On Any Legal Theory” does not make legal sense in Brazil.]

7. Termination

a. This License and the rights granted hereunder will terminate automatically upon any breach by You of the terms of this License. Individuals or entities who have received Derivative Works or Collective Works from You under this License, however, will not have their licenses terminated provided such individuals or entities remain in full compliance with those licenses. Sections 1, 2, 5, 6, 7, and 8 will survive any termination of this License.

b. Subject to the above terms and conditions, the license granted here is perpetual (for the duration of the applicable copyright in the Work). Notwithstanding the above, Licensor reserves the right to [diffuse] the Work under different license terms or to stop distributing the Work at any time; provided, however that any such election will not serve to withdraw this License (or any other license that has been, or is required to be, granted under the terms of this License), and this License will continue in full force and effect unless terminated as stated above.

[Release = Diffuse. The word “release” has a specific meaning in Portuguese which is not appropriate in this context.]

[8. Other Provisions]

[Miscellaneous = Other Provisions. The literal translation of the word “miscellaneous” is not usual in Portuguese.]

a. Each time You distribute or publicly perform [by digital means] the Work or a Collective Work, the Licensor offers to the recipient a license to the Work on the same terms and conditions as the license granted to You under this License.

b. Each time You distribute or publicly perform [by digital means] a Derivative Work, Licensor offers to the recipient a license to the original Work on the same terms and conditions as the license granted to You under this License.

c. If any provision of this License is invalid or unenforceable under applicable law, it shall not affect the validity or enforceability of the remainder of the terms of this License, and without further action by the parties to this agreement, such provision shall be reformed to the minimum extent necessary to make such provision valid and enforceable.

d. No term or provision of this License shall be deemed waived and no breach consented to unless such waiver or consent shall be in writing and signed by the party to be charged with such waiver or consent.

e. This License constitutes the entire agreement between the parties with respect to the Work licensed here. There are no understandings, agreements or representations with respect to the Work not specified here. Licensor shall not be bound by any additional provisions that may appear in any communication from You. This License may not be modified without the mutual written agreement of the Licensor and You.

Creative Commons is not a party to this License, and makes no warranty whatsoever in connection with the Work. Creative Commons will not be liable to You or any party on any legal theory for any damages whatsoever, including without limitation any general, special, incidental or consequential damages arising in connection to this license. Notwithstanding the foregoing two (2) sentences, if Creative Commons has expressly identified itself as the Licensor hereunder, it shall have all rights and obligations of Licensor.

Except for the limited purpose of indicating to the public that the Work is licensed under the CCPL, neither party will use the trademark "Creative Commons" or any related trademark or logo of Creative Commons without the prior written consent of Creative Commons. Any permitted use will be in compliance with Creative Commons' then-current trademark usage guidelines, as may be published on its website or otherwise made available upon request from time to time.

Creative Commons may be contacted at http://creativecommons.org/.

 

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