[cc-licenses] Moral rights in Creative Commons licenses
Peter Brink
peter.brink at brinkdata.se
Mon Oct 1 07:55:43 EDT 2007
Rob Myers skrev:
> Javier Candeira wrote:
>
>> Mentioning moral rights and pseudo-waiving them where applicable serves
>> Creative Commons better.
>
> I believe that moral rights are un-waivable in some countries (Germany?)
> so this approach would not work internationally.
>
Moral rights being un-waivable is probably the most common case. Btw
Lessig has written an article about the isssue of CC and moral rights,
see: http://lessig.org/blog/2005/02/on_the_challenge_of_moral_righ.html.
Lessig writes: "Moral rights -- which are not "European" but in fact
common to the US/UK tradition and the European tradition (in our
tradition, they are called "author's rights," and the great text on this
is Lyman Ray Patterson's Copyright in Historical Perspective) -- don't
admit of such easy manipulation. In many jurisdictions that protect
moral rights, you can't just automatically give away the moral right,
without knowing something about how, or in what context, the work is to
be used. For those jurisdictions then, a Creative Commons-like mechanism
just wouldn't work. Such a mechanism couldn't succeed, in other words,
in effecting an agreement about such moral rights. Creative Commons is a
hammer. This is glass blowing.
So our response to these jurisdictions is simple: we don't purport to
affect the moral rights at all. They are left as they would be, because
our tool can't effectively do anything about them. Thus, it is not
because we don't "understand" moral rights that we don't do anything
about them. It is instead because we precisely understand that our tool,
given the law, can't do anything about them."
IMHO I don't see moral rights as a problem. In the author's right
tradition copyright legislation has a strong social dimension. Authors
are seen as a generally weak and powerless entity that need protection
against vicarious publishers and other such buyers of copyrights and
this is reflected in our laws. The freedom of contract is often partly
restricted and there are also often rules that creates a strong
presumption against complete transfers of rights and otherwise gives the
author an advantage when disputes arises about how a copyright contract
is to be understood. This social dimension is an important part of the
system and it's not worth throwing away.
/Peter Brink
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