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

Peter Brink peter.brink at brinkdata.se
Fri Apr 8 12:29:50 EDT 2005


drew Roberts skrev:
> On Friday 08 April 2005 06:07 am, Peter Brink wrote:
>>That is an undue condition. In Sweden such a condition would likely be
>>seen as an attempt to circumvent a mandatory law, and (IMHO) a Swedish
>>court would find such a term unlawful per se.
> 
> I know they would, the question is, what would an American court find? I is 
> definately an attempt to circumvent that law, that is the point of the 
> question/investigation.
> 

Well, I guess a US court could be quite OK with the arrangement, but 
don't take my word for it, I'm no expert on US law.

If the Swedish party changes hers/his mind, a Swedish court could still 
be convinced that the agreement would violate Swedish public order. In 
any given jurisdiction there might be some legal principles that are so 
fundamental to that society that the jurisdiction in question will 
refuse to respect provisions in contracts or court orders from foreign 
jurisdictions that violates such principles. A Swedish example would be 
our rejection of capital punishment. For example, an request from an 
foreign court of the arrest and extradition of a person suspected of a 
crime that might result in a capital punishment in the foreign 
jurisdiction will be rejected by a Swedish court.

A foreign contract whose obvious purpose is to circumvent a mandatory 
rule (such as moral rights) could also violate Swedish public order. The 
literature on the subject suggests that a otherwise "normal" contract 
(e.g. a work for hire contract) that results in a complete transfer of 
copyright from one party to another would not be subject to any 
rejection based on Swedish public order. It's the purpose of the 
contract that matters and in the case of Drew's arrangement the purpose 
is obviously to circumvent the law, so in that particular case I think 
one could very well get a Swedish court to reject either the contract as 
such or those provisions who work to circumvent Swedish law.

> 
> No one said anythin about forcing this agreement on anyone, or flying them to 
> America against their will. 

Well the words "...get you to sign..." gave me an impression of force...

[snip]
> Now I find out about this action (I are in America remember and have in fact 
> never been to Europe) and I point it out to the law firm holding the papers 
> in escrow. They investigate and release the papers to me. Now I am in 
> posession of a legal transfer of copyright and thus completely own the work 
> in parts of the world where moral rights do not apply. I would not own the 
> moral rights in countries where they do. Would I own the economic rights 
> there?
> 

Your (theoretical) arrangement still doesn't sound very decent to me...
Regardless, it's quite possible to do an exclusive global transfer of 
the economic rights to a work. So, yes you would own the economic rights.


/Peter Brink




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