Creative Commons - Belgium

[Hannelore Dekeyser <hannelore.dekeyser AT law.kuleuven.ac.be>]

Alexandre Dulaunoy wrote:
> On Tue, 23 Nov 2004, Hannelore Dekeyser wrote:
>
>
> > > [BE] Moral rights and use of DRM/TPMs. How can you ensure the scope of
> > > the moral  rights exercice to format  only ? It wouldn't  be better to
> > > exclude fully moral  rights on the various licences ?  or to force the
> > > scope on the 'patrimonial' side only ?
> >
> > Could you explain this a little more?  What doe moral rights have in
> > common with DRM?
>
>
> The question was more why adding in the translation reference to moral
> rights ? it wouldn't be better to remove the reference to moral rights
> in the translation ?
>
> [The relation  to DRM  was mainly about  possible tricks done  by some
> author that would add kind of  DRM and ask to not be removed following
> the question of moral rights.]

In American Copyright law moral rights don't exist.  Copyright is purely
a question of exploitation of intellectual works (money, money, money).

In Belgium, we have 'droit d'auteur'/'auteursrecht', in the French
tradition.  This has a strong exploitation component, but also a
personal component.
Moral rights serve to protect the intimate relationship between an
author and his creation (= legal doctrine).  This is why an author has
the exclusive right to determine whether his work is ready to be shown
to the public (divulgation right).
He has the exclusive right to publish anonymously or under his own name.
The author may forbid that his work is modified in any way.

These moral rights cannot be transferred or traded in any way, as this
would defeat their goal: to protect the intimate relationship between
author and work.

The original author can only promise not to exercise his moral rights in
certain situations.
This is what the very last sentence of art. 3 means:
"The Original Author declines to exercise his/her moral right as far as
such technically-need modifications are concerned"

Now, the author promises not to object to modifications technically
necessary to exercise the rights given in art 3 (distribute,
derivatives, ...).

I think this addition in the translation is very usefull.  Otherwise the
original author could suddenly object to certain modifications based on
his moral right, without any good reason.

Note: The law always allows the original author to object against
modifications that damage his reputation or deform the work.


Bottom line: The original author licences you certain exploitations
rights (patrimonial) and promises not to use his moral rights to undo
the licence.


You can't remove credit to the original author when you redistribute or
create a derivative.  Art. 4 d: "You must keep intact all copyright
notices for the Work and give the Original Author credit reasonable to
the medium".



I still don't understand the link with DRM.  Moral rights appear in art.
3.  DRM appears in art. 4.

"You may not distribute, publicly display, publicly perform, or publicly
digitally perform the Work/Derivative work with any technological
measures that control access or use of the Work in a manner inconsistent
with the terms of this License Agreement."

Now that I think about it, the Original author could licence a work
under CCPL and still apply DRM to it.  "You" is not the Original author.
This wouldn't be very nice, and some might argue this is breach of
contract.  Allthough I think this is covered by the exclusion of
responsability.

DRM has little to do with patrimonial or moral rights.  DRM is enforcing
your will, not by contract/licence, but by using technology.
The licence forbids "You" from doing just that.  "You" is anyone who
receives the work and redistributes it or creates a derivative.


Hannelore

--
Hannelore Dekeyser
Interdisciplinary Centre for Law and Information Technology
Website: http://www.law.kuleuven.ac.be/icri