[Foundation-l] RfC: License update proposal

[Jussi-Ville Heiskanen]

Anthony wrote:
> On Thu, Jan 29, 2009 at 9:34 AM, Jussi-Ville Heiskanen <cimonavaro at gmail.com
>   
>> wrote:
>>     
>
>   
>> Jussi-Ville Heiskanen wrote:
>>     
>>> But I am sure there are no applicable moral rights
>>> to let's say correcting missing space around punctuation.
>>>       
>> I have made some studies, and it appears this last
>> sentence is in fact complete bollocks. (xcuse my french)
>>
>> There is a frequently expressed view that the moral
>> rights provision of "paternity rights" are there to
>> protect the authors right to be identified as the
>> originator of the work, but it is in fact (according to
>> a finding by Finnish copyrights protection arbitration
>> committee - which of course has no actual legal standing
>> as a binding precedent on later court cases) somewhat
>> more involved.
>>
>> TN 1991:7 states that the paternity right extends to
>> the level of making it obligatory to not only mention
>> if the original authors work has been tampered in some
>> way (adapted, translated, modified, whatever; choose
>> your own term) but to identify specifically by whom, if
>> known.
>>
>> This is a very strong finding, though as far as I know
>> untested in an actual court of law here.
>>
>> I am sure most cases of shuffling punctuation around
>> and such is not something that can be considered
>> creative acts, but certainly they would qualify as
>> modifications. And I was recently reminded of the
>> Emily Dickinson poem "A Narrow Fellow in the Grass"
>> (published as "The Snake" in The Republican) had
>> a change of a single punctuation mark, which in her
>> own view changed the meaning of it completely on its
>> head; so even a mechanical application of considering
>> punctuation changes as minor, is not universally
>> defensible.
>>     
>
>
> I hope you don't mind my abbreviation of your original context.  Anyone who
> didn't read the original post can scroll back a few messages to see it.
>
> Anyway, it seems to me that the purported moral right you're speaking of
> would be a right of the original author, and not a right of the person
> making the modification.  Am I correct in this assumption?
>   

I think you have hit the nail on the head there. But of course
there is a bigger can of worms to be opened, in the sense
that even though the original author would under this theory
have an imperative right to make known all modifiers, it is very
unclear whether some forms of modification would confer equal
authorship rights to *their own modified version*. This is of
course in particular interest to translators; but in the wikipedia
context would be relevant to any editors who substantively
improved an article.

If it were legally defensible to claim such rights, it would of
course only apply to modifications made to the version they
had sufficiently modified to confer a legitimate authorship
right to it. There is no way to grand-father authorship rights
even under the moral rights regime.

> If so, I think it has significance in the how that right should be
> protected, if indeed one is to accept that it is a right.  In that sense,
> I'm not sure how "modified by a bunch of idiots on Wikipedia" is any worse
> than "modified by [insert a bunch of psudonyms here]".
>
> On the other hand, the GFDL (via the section entitled History) certainly
> protects this purported right much stronger than CC-BY-SA under any
> interpretation.  CC-BY-SA mostly attempts to punt on these issues, leaving
> it to the laws of the individual states (and in some cases to the terms of
> service of the individual ISPs where the content is first contributed).
>   

I have no opinion on this point in support of your view, but will
not present my objections publicly either.
> Personally I think there ought to be a philosophical discussion of whether
> or not this is a right the WMF wishes to recognize, and if so, to what
> extent.  Only by answering that question can this issue be rationally
> resolved, and once that question is answered the specifics should come quite
> naturally.  But there seems to be a reluctance to engage in such discussion
> on this mailing list.
>
>   
This point is one I wholly subscribe to though.


Yours in amity,

Jussi-Ville Heiskanen