[Foundation-l] RfC: License update proposal

[Jussi-Ville Heiskanen]

Ray Saintonge wrote:
> Jussi-Ville Heiskanen wrote:
>   
>> Ray Saintonge wrote:
>>   
>>     
>>> The only reason that "moral rights" is an issue is its inclusion in the 
>>> statutes of various countries.  It mostly stems from an inflated 
>>> Napoleonic view of the Rights of Man that was meant to replace the 
>>> divine rights of kings.  Common law countries have been loath to embark 
>>> in this direction.  Moral rights are mentioned in the US law, but only 
>>> as a toothless tiger.
>>>     
>>>       
>> I would actually be interested to get the background for
>> this interpretation of how moral rights came to happen
>> as a legal idea. If there are such references.
>>   
>>     
>
> I couldn't find the reference that I recalled from a couple of years 
> ago, but I did find some reference to the idea at 
> http://www.ams.org/ewing/Documents/CopyrightandAuthors-70.pdf in the 
> section "Some philosophy". 
>
> There are profound differences at a very deep level between the rights 
> of authors in civil law countries and the right to copy in common law 
> countries. In common law countries copyright has been primarily an 
> economic right instead of a personal right.  It used to be that 
> copyright disputes were framed between two publishers or between 
> publisher and author.  To the extent that the law was a balance between 
> interests it was the interests of publishers and authors that were being 
> balanced.  That the using public could have interests was unthinkable 
> because these users flew below the radar of cost effectiveness.  If it 
> was not economical for a person to infringe copyrights in the first 
> place, how could it be worthwhile to lobby politicians to have these 
> rights for the general using public.  Today we have a third party whose 
> interests were never considered in the balance.
>
>   
Aye, that is the rub. We aren't really in the job
for just helping different regimes interoperate.
(if I am allowed my sly aside - some of are trying
to pull a fast one to prevent interoperability)

The important thing is, if this change of attribution
*does* in fact go forward, there is no option of saying
it was done out of ignorance. There have been a
number of people who have spelled out the real
legal issues involved. If they are ignored, rather
than addressed, that is the responsibility of those
doing it, not an apathetic community which did not
point out that those issues were real. We have
pointed out those issues, and if they are ignored,
there is no way it can be blamed on an apathetic
community who "allowed" it to happen.

>   
>> Particularly as the legal reasons in at least Finnish legal
>> manuals for laymen who have to deal with moral rights
>> seem to focus on the utility moral rights have in terms of
>> protecting the artisans reputation as being good at his
>> craft.
>>   
>>     
>
>   
> I don't know anything about the history of Finnish jurisprudence, but 
> that statement seems to draw on the French model.  Canada has provisions 
> for moral rights, but the person claiming that his reputation has been 
> damaged would have the burden of proving that as well as proving the 
> amount of damages.  If one made a claim for $1,000,000 in damages he 
> shouldn't expect that it will be granted just because he says so.
>   

Actually there is a more profound difference of legal
systems at work. Finland works on the assumption that
claims of damages are not paramount, but protections
given by law are. So you can be fined, even if you cause
no damage. On the other hand, no ridiculous claims of
damage will give the aggrieved party an inflated
compensation claim, because the Finnish system is
not geared towards rewarding the victim, but only
assuring everybodys rights are protected.


>> I have great difficulty understanding how the "right to examine"
>> could be traced to some grandiose "Rights of Man" basis,
>> since the argument presented for this particular moral right is
>> clearly grounded on protecting the artisan/artists ability
>> to examine their earlier work, to remind them self and
>> refresh their memory on methods they had employed on those
>> works, and thus enable them to not lose skills and methods
>> they had mastered in earlier days.
>>   
>>     
>
> I seem to be misunderstanding something about your stated "right to 
> examine".  Is someone claiming that authors are prevented from examining 
> their own works?
>
>   


The right to examine is a Moral Right that I feel really
does not fit with your over-arching idea that they
are aggrandizing rights and not only utilitarian ones.

If you made a sculpture and sold it off, in many countries
without moral rights, that would be the end of it. Hey,
you were hired to do a job, what more do you want!?

In Finland, you used some useful skills you had gained
from apprenticeship,  and study at art colleges, and
even perhaps a sojourn in Paris or Venice. And you
may have even made some hard decisions forced on you
by the material you were sculpting itself. Wow!

Now, picture yourself as the artist some 15 years later.

You are at the doddering limits of decrepitude, but you
still have enough wits to remember you had to make
some hard choices then. A mesenate asks you to make
one last work in that same material. You go and knock
on the door of the person who bought your sculpture.

Under the moral rights "right to examine", the owner
of the sculpture could not turn you away from their door.
They would have to let you see the original work, no matter
if you had used it as a door-stop or as a bedroom ornament.


Yours,

Jussi-Ville Heiskanen