Thomas Dalton writes:
>> This must be your own idiosyncratic application of the term "moral
>> right." In copyright, "moral rights" refers to inalienable legal
>> rights that are recognized in law. If you are in a jurisdiction that
>> does not recognize "moral rights," then you don't have them, by
>> definition.
>
> The idea behind moral rights is that they are rights that everyone has
> automatically and the law is just recognising that.
I understand what the *rhetoric* of moral rights is. But in the
absence of law establishing and protecting moral rights, you don't
have any.
> If you are in a
> jurisdiction that doesn't recognise moral rights then (from that POV)
> you still have moral rights, the state is just immoral and doesn't
> enforce them.
A more nuanced and accurate view of the term "moral rights" is that it
is a term of art relating to copyright and other rights in creative
works.
> There is a fundamental difference between a right
> granted by law and a pre-existing right recognised by law.
Is this difference based on anything in the physical world?
> That
> difference is irrelevant in a courtroom, which is probably why you
> dismiss it, but there is a difference.
It's true that religious beliefs don't have great force in Western
courtrooms. I dismiss this particular religious belief not because
it's irrelevant in a courtroom, however, but because there is no
evidence in the physical world that this difference exists.
Thomas, you may believe that the longstanding debate between natural
law and positivists has been resolved in favor of the former, but
there's no sign that this is true with regard to copyright. If what
you were saying were widely accepted, it would be odd that "moral
rights" obtain as to copyright/creative expression but not as to
things like property ownership and personal liberty.
--Mike
Thomas Dalton writes:
>> I understand what the *rhetoric* of moral rights is. But in the
>> absence of law establishing and protecting moral rights, you don't
>> have any.
>> [snip]
>
> There is a world outside the legal profession, Mike. Either learn
> that, or restrict the recipients of your emails to other lawyers. I,
> for one, don't care about your extremely narrow minded views.
I'm sorry, Thomas, but until people learn to use jurisprudential
concepts such as "moral rights" properly, I have a moral obligation to
point out where they are used mistakenly. This is not a question of
"the world outside the legal profession" (and, indeed, if you were a
member of the legal profession -- or a philosopher -- you wouldn't
make the mistake of supposing this). Philosophy of law is accessible
to people who aren't lawyers -- even you. But it's clear that the word
"moral rights" is being thrown around here by people who are only
casually familiar with the concept. When you have actually given some
study to jurisprudential philosophers (see, e.g., H.L.A. Hart and Lon
Fuller) and can offer some more sophisticated philosophical analysis
than you offer here, I will be able to take your pronunciamentos more
seriously.
Do you understand what the term "term of art" means?
By the way, most members of the legal profession are not students of
the philosophy of law. It is your misfortune that, in me, you have
come across someone who is. I'm not disqualified from pointing out
philosophical mistakes merely because I can hang out a shingle.
--Mike
Anthony writes:
> A legal right is recognized by law. A moral right may not be.
This must be your own idiosyncratic application of the term "moral
right." In copyright, "moral rights" refers to inalienable legal
rights that are recognized in law. If you are in a jurisdiction that
does not recognize "moral rights," then you don't have them, by
definition.
> Sure, but I'm not in a jurisdiction that indisputably recognizes the
> right
> to attribution.
Okay, so why are you invoking rights that you don't have?
> Barring a license to use my content in that way, sure. Just like a
> film
> director has a basis to demand "the last solo credit card before the
> first
> scene of the picture".
Excuse me? Film directors don't have any legal right to such a
"credit card" (I assume you mean "credit"). They may negotiate for
such a credit through contract, but they don't have it in the absence
of a contract.
>> So you're saying your legal rights are defined by "common sense"?
>
> To some extent, sure. Not entirely by common sense, of course, but
> legal
> rights can't be understood without employing common sense.
They can't be understood without knowledge of the law, either.
--Mike