[cc-community] Lawyers Discussing CC License For Their Blog

Peter Brink 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 
not fool-proof.

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 
(http://www.tilljaeger.de/art10.pdf).

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...


/Peter Brink




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