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cc-licenses - Re: CC licenses and "moral rights"

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Subject: Development of Creative Commons licenses

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  • From: "Peter Knupfer, H-Net" <peter AT mail.h-net.msu.edu>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: CC licenses and "moral rights"
  • Date: Thu, 24 Mar 2005 20:30:49 -0500

Greg London wrote:

Maybe I'm too much of an american, but "Fair Use" is not an attitude.
Fair Use encompasses a set of rights that remain public rather than
being granted exclusively to the author with all the other rights
to the work.

The right to record a TV program on a VCR being a major Fair Use right.


It is indeed quintessentially American that some people see privileges as rights. But if we're talking about law and compelling people to follow rules, fair use must be seen for what it is.

And fair use is not a right. Until 1976, it was judge-made doctrine, extending from Story's decision in Folsom v. Marsh in 1841, which laid out the elements of the fair use test: "look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects, of the original work." Story was not enumerating rights; he was crafting doctrine the way his contemporary John Quincy Adams crafted the Monroe Doctrine, as a set of assertions and propositions not codified in law.

Fair use is a privilege granted as an exemption to the blanket copyrights provided for in US 17. The act didn't create a fair use right and never refers to it that way. It exists in some form in other countries' copyright laws under "fair dealing" or "fair practices" provisions. In fact, it is precisely because it is an exemption and not a right that it can be undermined via what one expert calls "quasi copyright" provisions in clickwrap licenses and uniform commercial codes that greatly restrict fair uses of works.

It does express a set of attitudes about public uses of works. Call it common sense, call it a flexible interpretation of the Constitution's clear injunction about the purpose of copyright and patents as useful contributions to public knowledge.

"Moral rights" are very much a part of world copyright law, however vacuous or dangerous some people here may regard it. In fact, it is the converse of fair use: we have fair use but not moral rights; other countries have the reverse. As someone here pointed out, the Berne Convention and its successors provide for moral rights in literary and artistic works, and then politically abandon the field by making enforcement subject to applicable local law. And there's a big slice of IP law for audiovisual works and phonograms that is reserved to "moral rights."

But it's worth considering how Berne defines moral rights, given the discussion here on this list:

http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P123_20726

"Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation."

Notice how sweeping this is. It even applies after transfer of ownership, very much a feature of European copyright systems that focus on the *creator,* not the *work.* A work has no rights. Creators do.

It may be a step too far for Lipstadt to claim that putting her lecture up next to a Holocaust denier's lecture fits the above definition, but I think it is arguable that some of the other instances I suggested -- such as the use of anti-apartheid testimonies at pro-apartheid web sites -- is a "derogatory action" that is "prejudicial to [the creator's] honor or reputation."

regards

Peter




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