[cc-licenses] Lawsuit over Virgin Mobile's and Ethical Use
Jordan S Hatcher
jordan at opencontentlawyer.com
Mon Oct 1 04:02:58 EDT 2007
On 1 Oct 2007, at 03:59, Terry Hancock wrote:
> But if the clause is included in the CC license, then you enforce this
> oddity of European law onto Americans as well. Normally we (in the US)
> do not recognize the idea of "moral rights" in a work (which is
> part of
> our general theory that copyright is not a 'natural' right, but
> rather a
> state-granted monopoly on an otherwise free activity -- copying
> It doesn't seem to me that reflecting such jurisdiction-specific
> non-copyright laws is that helpful.
The US does cover many of the moral rights, just not as 'moral
rights'. Congress made a number of changes to, at least on paper,
make the US meet the obligations of Article 6bis of Berne (moral
rights) when the United States joined Berne on March 1, 1989.
Also should mention the Visual Artist Rights Act (VARA) gives certain
moral right to visual artists in the United States.
The incentive theory of copyright is not limited to the United States
but in fact goes back to the Statute of Anne in the UK. As I
mentioned earlier in this discussion, moral rights (generally) are
not very strong in Commonwealth jurisdictions and former UK colonies
(such as the US) because they all generally take the same incentive-
The other approach is an 'author's rights' approach, which leads to
strong moral rights because (to simplify) it is based on the idea of
ownership of what you create because it is a part of you. That's why
in author's rights systems (Germany, France, et al) you have the idea
of 'author's rights' and 'neighbouring rights'. Neighbouring rights
are copyright over areas where there is no creative expression, such
as broadcast rights, or a producers right to a film (though I have
argued otherwise as to film producers). These are the areas of so-
called entrepreneurial copyright.
And to return to some other points made in this discussion, there are
two primary moral rights that we are dealing with:
1 - the right to be identified as the author
2 - the right to object to derogatory treatment
The first is an integral part of the CC licence -- it is the BY
element. The second is the right that we have been discussing.
You could try to waive the right to object to derogatory treatment
whenever possible. This is the approach in the ODCDBL
You do have to realise though that there are many jurisdictions that
these rights cannot be waived, and that for more creative works (or
at least not databases) that authors might very well want and expect
these rights to be present. So the approach has been to keep them.
I'm not a big fan or a defender of the moral right to object to
derogatory treatment, but this is really the most sensible approach.
You must also keep in mind that these rights don't often go to court
even in the jurisdictions that hold them sacred, as for an artist to
do so would be in some ways commercial suicide.
Mr. Jordan S Hatcher, JD, LLM
jordan at opencontentlawyer dot com
OC Blog: http://opencontentlawyer.com
IP/IT Blog: http://twitchgamer.net
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