[Foundation-l] promotion of free licenses

[David Monniaux]

>
>
>Does anyone know of cases where this has actually happened? Also, does
>> this relate to any particular legislation? I've only ever heard of
>> this sort of thing in consumer protection or trade practices
>> legislation.
>  
>

As a member of the board of Wikimedia France, I had a meeting with the
head and the legal counsel of some society of authors, whose name I
shall leave unstated (the problems are not specific to them).

Their legal counsel told me that their stance is that all legal
conditions stating that the author cedes all rights for an unbounded
duration are abusive and that they were ready to fight that in court if
necessary.

These people have a very different point of view from ours.
Publishers try to have them sign agreements in which they sell their
works for a fixed pity sum for any use whatsoever.

We may consider "free of rights" content to be a Good Thing (TM), but to
them this is a Bad Thing (TM). To them, "free of rights content" ("libre
de droits" in French) means, for instance, cheap CDs and DVDs in which
you have 1000s of photos and other pictures that you can use without
paying royalties, that is, in practice, this means loss of income to
them. By "loss of income", I don't mean "loss of a little income in
an ocean of $$$", but I mean making it difficult to make ends meet at
the end of the month.

For almost everybody on this list (I'm leaving out Brad and Danny, sorry
folks), Wikipedia is a hobby project that we contribute to in our free
time. This is not the case of these people. Their works are their
livelihood. They're in a bad position, they feel shafted by the economic
powers, so they naturally have a tendency to be wary of evolutions that
may make their situation worse. That's human. When I discussed "free of
rights" stuff with them, I felt like somebody trying to promote Sauron
of Mordor to hobbits. Not a comfortable position, believe me.

This is something I'd like to stress : in most of our dealings as
representatives of Wikimedia France, we haven't encountered people who
acted against our wishes out of spite, but rather people who have to
deal with pressures (from their hierarchy, from economic powers,
from the legal system, etc.) and respond in a fairly understandable way.

As Delphine explained, going into a head to head confrontation is
counter-productive; one must at least try to understand why they act in
this way, and they often have a fairly good rationale from their point
of view. (I'm not saying we should accomodate each and every request
from people we disagree with, but at least we should try to consider
that they're often acting sensibly from their point of view.)

Trying to push radical ideas in an "all or nothing" approach tends to
lead to a lose-lose situation. In order to get something out of people,
they have to listen to what you say (yay! I feel like
http://en.wikipedia.org/wiki/Jacques_de_la_Palice ).
If you start becoming confrontational, they start getting
confrontational too, and they stop listening.

Besides, I feel very uncomfortable promoting what we do as "sensible".
We have ultra-stringent requirements about "free" content, yet we allow
GFDL content (which all the quirks of the GFDL, which makes it unusable
for many applications), and then we explain that we allow "fair use"
content, a very vaguely defined legal exception. As we say in France,
before pointing out the straw in someone else's eye, beware of not
having an entire woodblock in one's own. Our licensing policy is
inconsistent too, and people will not take it kindly if we ask that they
alter theirs whereas we are incapable of sorting out ours.

An important point is that for the last 150 years, French copyright law
has been (at least in theory, practice is different, see below) centered
around the idea of an *author* making a *work of the mind* which is his
*property*. The author then authorizes *each use* of the work.

(In practice, authors cede rights to publishers, but the contracts are
then supposed to delineate the limits of these cessions of rights. They
also cede their rights to societies who collect rights on their behalf.)

Law delineates what can and cannot be done in publishing contracts (CPI
L132-1 to L132-17). It prohibits indiscriminate ceding of rights (CPI
L131-1, L131-3). Law imposes that the author should be remunerated in
proportion to the use of his work (CPI L131-4), with some exceptions.

In comparison to that, support for the possibility of free licenses
seems to hinge on CPI L122-7-1.

I don't have the case law out of my head; certainly, getting a
comprehensive file on French case law with respect to the protection of
authors would probably involve paying a lawyer to research it. But,
indeed, there *are* protections against ceding all rights for any use,
that's a fact, and courts *have* ruled that some clauses in publishing
contracts were abusive. (Fundamentally, this is because
these contracts are unbalanced : on the one hand you have a
self-employed author, cartoonist, photographer etc. who has to pay the
bills at the end of the month, on the other hand a big corporation.) Our
beloved "free licenses" are largely untested in court, and I suspect
that how they interact with existing legislation could fill entire
doctoral theses in law...

Another important issue is that this whole debate is not
France-centered. "Copyright" as practiced in the US is largely an
American conception (though British law may be somewhat similar to some
extent, even though apparently the British recognize scanning images as
creating rights?). The Berne convention, which many countries
(including, somewhat recently, the US) have signed is based on 19th
century French ideas of the rights of authors (I reckon Victor Hugo
pushed for it. Yes, the guy who originally wrote the Hunchback of
Notre-Dame. :-) )

[ When I say CPI, I mean the French intellectual property code,
available on http://www.legifrance.gouv.fr . This is a very entertaining
reading. Plus, after a while, one is capable of peppering one's
conversation with "see CPI L122-5 third paragraph", a sure win in
academic cocktail parties.]