[Foundation-l] RfC: License update proposal

[Ray Saintonge]

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.

> 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.
> 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?

Ec