On 4/20/07, Delphine Ménard <notafishz(a)gmail.com> wrote: In many countries, the moral rights can't be waived or renounced (in Mexico you can't). But those are not the rights that licenses deal with, but "patrimonial" (not sure about the proper translation) rights. No matter how free is the image, the author will always remain the author. That's nothing to do with freeness.

--- Pedro Sanchez <pdsanchez(a)gmail.com> wrote: Sorry I missed this comment on first reading. Authorship is not the moral right in question. The question is about the moral rights effecting derivatives which might be seen as distorting or mulitating the work or somehow insulting the honor of the author. While the definition of freedom says derivative must be allowed "regardless of the intent and purpose of such modifications" Birgitte SB __________________________________________________ Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com

So the question is: When the right to take back a release in the event of a derogatory derivative is reserved is it "free content"? Birgitte SB --- Mark Williamson <node.ue(a)gmail.com> wrote: http://lists.wikimedia.org/mailman/listinfo/foundation-l http://lists.wikimedia.org/mailman/listinfo/foundation-l __________________________________________________ Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com

Hello, This question is related to a debate* on the English Wikisource, summarised hence. Currently, based on the Free Content definition*, the copyright policy* requires that a work's licensing allow it to be "freely viewed, used, distributed, modified, and exploited by anyone, in any form, and for any purpose (including commercial exploitation) without exception and without limitation (except as explicitly allowed [by the copyright policy])". Given that moral rights include the right to attribution and the right to object to modification of one's work (independently of copyright and even after the transfer or expiry of copyright)*, and given that a significant portion of the English-speaking world recognizes moral rights, does this mean that the copyright policy and definition require impossible freedoms? For example, this would mean that all works on Wikisource (including those in the public domain) would either: 1. be retagged to require attribution and prohibit changes or derivatives; 2. be deleted. I disagree with this assertion. I consider moral rights to be legal restrictions in some jurisdictions, much like anti-hate propaganda legislation in Canada, and not "attached" to a work as copyright is. However, I am not a lawyer nor particularly aware of the intricacies of copyright, and would appreciate input from the wider Foundation community. * debate: http://en.wikisource.org/wiki/Wikisource:Scriptorium#Moral_rights * definition: http://freedomdefined.org/Definition * copyright policy: http://en.wikisource.org/wiki/Wikisource:Copyright_policy * Moral rights in Europe: http://en.wikisource.org/wiki/Convention_for_the_Protection_of_Literary_and… Yours cordially, Jesse Martin (Pathoschild)

--- Delphine Ménard <notafishz(a)gmail.com> wrote: I agree; these rights are recognized to some degree about everywhere that honors Berne. Of course the US is significant example of a juristiction not honoring this part of Berne. I wasn't meaning to pick on France, but I was completely certain what I was saying was true for France. Whereas I believe is it also true in Germany and most of the EU, I am not sure which juristictions allow these rights to waived. I know for certain that France takes the hard line on the issue, so that makes the best example. Birgitte SB __________________________________________________ Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com

Birgitte SB wrote: Nevertheless Section 106A of the US copyright law does deal with this issue. It does lead to some bizarre results. See http://www.caslon.com.au/mrcasesnote.htm The one that I really liked there was a 2006 Swedish decision: "Stockholm court of appeal finds in favour of Swedish film makers in 2006 after claims that their moral rights were breached by TV4 through insertion of advertisements in broadcast of films" An interesting comment in the Supreme Court of Canada in Théberge v. Galerie d'Art du petit Champlain: " evaluation of a potential breach of moral rights calls for the exercise of a good deal of judgment. A distortion, mutilation or modification of a work is only actionable if it is to "the prejudice of the honour or reputation of the author". The artist or writer should not become the judge in his own cause on such matters" The problem seems to be that French courts have gone completely over the top with this, and have recorded some bizarre results. They would cover any kind of remixing of music or video subject This is the kind of thing that YouTube thrives on. While we should be respectful in our approach to moral rights laws, I don't think that we should pander to the kind of lowest common denominator that has been expressed by the French courts. Ec

On 4/21/07, Ray Saintonge <saintonge(a)telus.net> wrote: Some well-known moral rights cases have related to (in all of these the moral rights were held to be infringed): * the broadcast of a colourised version of a black-and-white film; * the performance of a play with female characters playing the two male leads, contrary to the writer's stage directions; * the disassembling of a painting painted in six panels into individual panels. These are all cases relating to the "right of integrity", which isn't really defined anywhere (that I know of, some countries may have defined it when implementing the Berne Convention). It's usually taken to be mainly about the integrity of the artist and their artistic vision. My suspicion (IANAL) is that parody would not be considered an infringement of the right to integrity in most cases, since in most cases if it's obvious that it's parody, it's also obvious that it's not meant to be representing something that is part of the original creator's artistic vision, indeed quite the opposite. I'm not familiar with all the various statutory schemes (each signatory implements the Berne Convention differently) but it seems to me that there are three general possibilities. From narrowest to widest reach: * the moral rights expire with the copyright; * the moral rights expire with the death of the author; * the moral rights remain with the author's estate on the author's death. I think it's an open question (again, IANAL) as to whether any moral rights subsisting in the author's estate could be devised. -- Stephen Bain stephen.bain(a)gmail.com

Jesse Martin (Pathoschild) wrote: Not at all! It's a copyright policy, not a moral rights policy. The moral rights are often included in copyright acts, but tend to still be defined as different from the economic right of copyright. "Neighboring rights" is another term that more broadly covers moral rights. This proposal is extremist to the point of lunacy. Hate propaganda legislation is a red herring. Just because a person has made modifications to someone's works does not imply hate propaganda. What do you mean by "attached to a work"? Ec

Ray Saintonge wrote: In the U.S. at least this isn't true; an author of a work no longer under copyright retains no residual rights of any sort except those that would normally be granted by libel and similar laws, not even a right to be credited as the author; this was settled in 2003 in [[en:Dastar Corp. v. Twentieth Century Fox Film Corp.]]. What is somewhat unclear to me is to what extent other countries' moral-rights legislation is enforceable outside their countries. Can it be safely ignored by those in countries that lack such laws, much like Turkey's laws against "insulting Turkishness" are ignored outside Turkey, or is it worldwide in legal applicability? If the former it presents less of a unique problem for free content---it's already the case that free content's reuse is restricted in some ways in some countries due to particular legislation, and we can't do a whole lot about that. -Mark

David Gerard wrote: The claim by John Huston's estate over the colorization of "The Asphalt Jungle" succeeded in France but failed in the United States. Ec

On 4/22/07, Birgitte SB <birgitte_sb(a)yahoo.com> wrote: The idea of moral rights is part of the Berne Convention, and the United States is unusual among signatories in not completely recognising them. However the Convention leaves it completely up to the signatories to implement moral rights into their local law, and this has produced some wildly different results. French law is commonly held up as an extreme example but really the difference is between the civil law states (which love moral rights) and the common law states (which are skeptical). -- Stephen Bain stephen.bain(a)gmail.com

On 4/22/07, Birgitte SB <birgitte_sb(a)yahoo.com> wrote: I was mainly writing in response to the first sentence of yours, "Moral rights are not some oddball local law, but well-recognized area of international copyright law acknowledged in the Berne convention." I agreed to a certain extent, but my observation was that the implementation is left up to the various countries and it has been implemented in dramatically different ways. The US, for example, has limited implementation (probably going below what Berne sets out) but France, on the other hand, has a very strong implementation (probably going beyond what Berne sets out). Yes, the concept is "well-recognized" internationally but aspects of particular implementations are certainly not. -- Stephen Bain stephen.bain(a)gmail.com

To be certain I am understanding you; is the following correct: The Free Content Definition is to only to be used to evaluate a *license* not an individual work. Birgitte SB --- Erik Moeller <erik(a)wikimedia.org> wrote: http://lists.wikimedia.org/mailman/listinfo/foundation-l __________________________________________________ Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com

--- Erik Moeller <erik(a)wikimedia.org> wrote: In that case we still have a problem. The perpetual moral rights issue particularly comes into play with public domain works. Which, obviously, are cases where there is no license attached to the work. Birgitte SB __________________________________________________ Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com

--- Erik Moeller <erik(a)wikimedia.org> wrote: Depends on the juristiction. For example in France they are inalienable, perpetual and inviolable. Birgitte SB __________________________________________________ Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com

On 4/20/07, Birgitte SB <birgitte_sb(a)yahoo.com> wrote: Can you cite the relevant legal code that states they are perpetual? -- Peace & Love, Erik DISCLAIMER: This message does not represent an official position of the Wikimedia Foundation or its Board of Trustees. "An old, rigid civilization is reluctantly dying. Something new, open, free and exciting is waking up." -- Ming the Mechanic

--- David Gerard <dgerard(a)gmail.com> wrote: What was the ruling? Where the moral rights in general invalidated or did the court only rule that the adaption in question was not in violation of the moral rights? I think it would have to be derogatory in some manner to be in violation of the moral rights. Birgitte SB Birgitte SB __________________________________________________ Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com

David Gerard wrote: The French case I was reading about may be the same one. It resulted in a nominal 1 euro fine for writing a sequel to his novel. It does appear to be the oldest original work to have spawned a moral rights case. Ec

--- Birgitte SB <birgitte_sb(a)yahoo.com> wrote: That article is from "Code de la propriété intellectuelle (partie législative)" Book I Title II Chapter I (if I am reading French cardinal numbers correctly) Birgitte SB __________________________________________________ Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com

--- Erik Moeller <erik(a)wikimedia.org> wrote: Please can someone with reputable french step in here. I can mostly read french, but am no where near reliable for a translation. Birgitte SB __________________________________________________ Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com

Ah sorry, both parts. On 4/20/07, Delphine Ménard <notafishz(a)gmail.com> wrote: This right is transmitted (transmitable?:/) upon death to the heirs of the author. Thinking about it, the exercice must refer to "enforcing this right". Delphine

On 4/20/07, Erik Moeller <erik(a)wikimedia.org> wrote: On the similar case of Mexican law, I can: MExican Federal law on copyright Title II Chapter II (On moral rights) Article 18-21: http://www.diputados.gob.mx/LeyesBiblio/pdf/122.pdf Artículo 18.- El autor es el único, primigenio y perpetuo titular de los derechos morales sobre las obras de su creación. Artículo 19.- El derecho moral se considera unido al autor y es inalienable, imprescriptible, irrenunciable e inembargable. Artículo 20.- Corresponde el ejercicio del derecho moral, al propio creador de la obra y a sus herederos. En ausencia de éstos, o bien en caso de obras del dominio público, anónimas o de las protegidas por el Título VII de la presente Ley, el Estado los ejercerá conforme al artículo siguiente, siempre y cuando se trate de obras de interés para el patrimonio cultural nacional. Artículo 21.- Los titulares de los derechos morales podrán en todo tiempo: I. Determinar si su obra ha de ser divulgada y en qué forma, o la de mantenerla inédita; II. Exigir el reconocimiento de su calidad de autor respecto de la obra por él creada y la de disponer que su divulgación se efectúe como obra anónima o seudónima; III. Exigir respeto a la obra, oponiéndose a cualquier deformación, mutilación u otra modificación de ella, así como a toda acción o atentado a la misma que cause demérito de ella o perjuicio a la reputación de su autor; IV. Modificar su obra; V. Retirar su obra del comercio, y VI. Oponerse a que se le atribuya al autor una obra que no es de su creación. Cualquier persona a quien se pretenda atribuir una obra que no sea de su creación podrá ejercer la facultad a que se refiere esta fracción. Los herederos sólo podrán ejercer las facultades establecidas en las fracciones I, II, III y VI del presente artículo y el Estado, en su caso, sólo podrá hacerlo respecto de las establecidas en las fracciones III y VI del presente artículo. ----------- rough translation -------------- 18. Author is the sole, original and perpetual holder of moral rights for his works. 19. Moral right is bound to the author, it's inalienable, imprescriptible, unavoidable and unseizable. 20. Moral rights can be exercised by the author or his heirs. When both are lacking, in public domain, anonymous or works covered in Title VII the state exercises the rights, as long as works are of interest for national heritage. 21. Holders of moral rights can, at any time: * Determine if the work shall be published or keep it inedit. * Demand his recognition as author * Demand respect for the work, opposing any deformation, mutilation or damage to the author's reputation. * Modify the work. * Pull it out from market * Oppose being attributed a work he didn't create. Heirs can only exercise items 1,2,3,4 and the state only 3 and 4.

On 4/20/07, Erik Moeller <erik(a)wikimedia.org> wrote: Moral rights exist in Italy as well: *Art. 20* Indipendentemente dai diritti esclusivi di utilizzazione economica della opera, previsti nelle disposizioni della sezione precedente, ed anche dopo la cessione dei diritti stessi, l'autore conserva il diritto di rivendicare la paternità dell'opera e di opporsi a qualsiasi deformazione, mutilazione od altra modificazione, ed a ogni atto a danno dell'opera stessa, che possano essere di pregiudizio al suo onore o alla sua reputazione. Tuttavia nelle opere dell'architettura l'autore non può opporsi alle modificazioni che si rendessero necessarie nel corso della realizzazione. Del pari non potrà opporsi a quelle altre modificazioni che si rendesse necessario apportare all'opera già realizzata. Però se l'opera sia riconosciuta dalla competente autorità statale importante carattere artistico spetteranno all'autore lo studio e l'attuazione di tali modificazioni. *Art. 21* L'autore di un'opera anonima o pseudonima ha sempre il diritto di rivelarsi e di far riconoscere in giudizio la sua qualità di autore. Nonostante qualunque precedente patto contrario, gli aventi causa dell'autore che si sia rivelato ne dovranno indicare il nome nelle pubblicazioni, riproduzioni, trascrizioni, esecuzioni, rappresentazioni, recitazioni e diffusioni o in qualsiasi altra forma di manifestazione o annuncio al pubblico. *Art. 22* I diritti indicati nei precedenti articoli sono inalienabili. Tuttavia l'autore che abbia conosciute ed accettate le modificazioni della propria opera non è più ammesso ad agire per impedirne l'esecuzione o per chiederne la soppressione. *Art. 23* Dopo la morte dell'autore il diritto previsto nell'art. 20 può essere fatto valere, senza limite di tempo, dal coniuge e dai figli e, in loro mancanza, dai genitori e dagli altri ascendenti e da discendenti diretti; mancando gli ascendenti ed i discendenti, dai fratelli e dalle sorelle e dai loro discendenti. L'azione, qualora finalità pubbliche lo esigano, può altresì essere esercitata dal Presidente del Consiglio dei Ministri, sentita l'associazione sindacale competente. *Art. 24* Il diritto di pubblicare le opere inedite spetta agli eredi dell'autore o ai legatari delle opere stesse, salvo che l'autore abbia espressamente vietata la pubblicazione o l'abbia affidata ad altri. Qualora l'autore abbia fissato un termine per la pubblicazione, le opere inedite non possono essere pubblicate prima della sua scadenza. Quando le persone indicate nel primo comma siano più e vi sia tra loro dissenso, decide l'autorità giudiziaria, sentito il pubblico ministero. è rispettata, in ogni caso, la volontà del defunto, quando risulti da scritto. Sono applicabili a queste opere le disposizioni contenute nella Sezione II del Capo II del Titolo III. Brief translation: Art. 20 [snip] Independently of economic rights, the author keeps the right to claim authorship and to oppose any deformation, mutilation and every act against his/her work, which may damage his/her reputation or honour. [snip] Art. 22 These rights cannot be alienated. However the author who knew and accepted the modification to his/her work cannot subsequently oppose. Art. 23 After the death of the author, rights as in Art. 20 can be enforced, with no time limit, by the husband/wife, children, or if there aren't, by the parents or other direct ancestors of descendants; if there aren't, by brothers and sisters and their own descendants. Furthermore, for public goals, the rights may be enforced by the Prime Minister [snip] Cruccone

On 20/04/07, Erik Moeller <erik(a)wikimedia.org> wrote: This was discussed on Commons talk:Licensing a while ago, in regard to the horrible new CC 3.0 licenses - where they thought it'd be a great idea to put moral rights into the licenses themselves for those countries. Meaning that some versions of CC by-sa 3.0 are free licenses and some aren't. - d.

Birgitte SB wrote: In Australia the right of integrity ceases with the author's death, and does not continue along with copyrights. Ec

On 4/21/07, Erik Moeller <erik(a)wikimedia.org> wrote: Moral rights are a completely separate bundle of rights to the economic rights under copyright. So I can grant a licence relating to my economic rights under copyright, or even waive those rights completely, and still hold the moral rights. Sometimes the moral rights will expire with the copyright, but sometimes they will expire with the death of the author, depending on the law of the jurisdiction. Sometimes the rights will persist as part of the author's estate and can be exercised by the estate. [1] The one that comes into play here is the right of integrity. Whether that right has been infringed is dependent on the facts of the case - there are no hard and fast rules about when infringement occurs. But generally, some factors that come into play include: * the nature of the work, * the purpose, manner and context in which the work is used. This may affect different WMF projects differently. But mainly this would be an issue for reusers, and not for us. One point to remember is that moral rights don't affect the ability of someone to deal with their economic rights under copyright by licencing the work, even though the moral rights still may affect someone using the work under the licence. -- [1] The French law seems to suggest that the moral rights can actually be devised, rather than merely subsisting in the estate, but that goes at odds with the idea that they're inalienable. -- Stephen Bain stephen.bain(a)gmail.com