[cc-community] Lawyers Discussing CC License For Their Blog
peter.brink at brinkdata.se
Thu Apr 7 09:51:49 EDT 2005
Rob Myers skrev:
> There must be a hack doable around moral rights,
> but unless a license that breaks if you use your
> rights is possible, possibly not within CC.
Any condition in a contract that tries to circumvent moral rights is
going to be difficult to defend in court. In most cases such terms will
be held to be unlawful per se.
> Assignment to a non-asserting foundation (FSF-style)?
Nope, you can't completely alienate an originator from his work. An
originator can only assign _the economic rights_ to another party.
> Licensing via Bermuda?
Creating a license that has a choice of law clause, stipulating that the
license shall be governed by and construed in all respects according to
(for example) US law, might seem as a solution, but such an approach is
The so called "Territorial Principle" is the prevailing principle in the
international copyright system, which means that it's always the laws of
the country in which an author asserts his rights which determinate the
scope of a copyright. A contract dealing with copyrightable objects can
however be subject to the laws of a single country. See also:
Metzger/Jaeger, "Open Source Software and German Copyright Law", p. 58
Metzger/Jaeger continues: "Nevertheless it is agreed that the law of the
protecting country is to be applied to questions concerning the content
and protection of copyright, in particular moral rights, the grant of
simple and exclusive rights of use and the assignment or partial
assignment of copyright - and hence also a waiver thereof. Consequently,
in any event the copyright problems at issue here are subject to German
copyright law. " [Metzger/Jaeger, p. 59]
This rule does not only apply to German law but also to other European
countries, including Sweden.
It's thus far from certain that a court in a moral rights country would
allow a choice of law clause in a contract which would lead to a waiver
of moral rights. See also: Stig Strömholm, "Upphovsrätt och
internationell privaträtt", p. 109, Norstedts Juridik 2001.
> Public-domaining the work then licensing it as part
> of a collective work?
Public domain (in the US sense) does not exist in Sweden (as well as
many other European countries). See above...
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