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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: Henri Sivonen <hsivonen AT iki.fi>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: CC licenses and "moral rights"
  • Date: Sat, 26 Mar 2005 13:49:18 +0200

On Mar 25, 2005, at 23:57, drew Roberts wrote:

On Friday 25 March 2005 03:06 pm, Henri Sivonen wrote:

Fine, all well and good, but the big boys are working overtime to "harmonise"
the "IP" landscape and moral rights may well end up having traction in
countries with and Anglo-American legal tradition. That could be ugly indeed.

I can imagine an American lawyer could wreak havoc in a jurisdiction where the statute is broad but some issues have been left unexplored as a matter of common sense.

But yeah, Finns worry about them, too, sometimes. The usual stance is
that the moral rights related to software are expected to be next to
non-existent, so moral rights are not considered such a problem for
software projects, which to date have been the most important copyleft
projects.

I can sort of see that for software, and I tend to GPL my programs these days.
Now, as to why some people's moral rights are less than others (from a moral
point of view) is another matter.

Moral rights have a common-law-like aspect to them at least in Finland.

The term "moral rights" does not occur in the copyright law. The term is understood to mean what is called the "fatherhood right" and the "respect right". These terms don't occur in the law, either. They are legal jargon, but it is well understood which passages of the law implement those two rights.

The fatherhood right is a right to attribution in the way required by good manner. In one of that court cases I mentioned earlier the plaintiff was a jewelry designer and the court found that a jewelry manufacturer (in the absence of a contract guaranteeing attribution) does not have to provide attribution along each piece of jewelry, because the court found that jewelry designers sometimes gets attribution but often don't, so good manner does not require jewelry designers to get attribution with each piece of jewelry. So yes, some people have lesser fatherhood rights than others depending on the prevailing practices of the field of trade.

Since the respect right is about tarnishing the reputation of the author of the artistry of the work, it seems to me it has common-law-like community standard aspect to it, as well. If society thinks that being associated with pornographers is more tarnishing to reputation than being associated with eg. hairdressers, then different fields of endeavor are not equal when it comes to moral rights.

Some journalists and artists seem to think that having their works used in advertising makes it look like they sold out and, therefore, use in advertising tarnishes their reputation.

However I am getting into releasing more artistic works under CC BY-SA which
if not copyleft, is fairly close in my view.

Don't get me wrong, I can see postitive and negative to both ways. However,
what if I as an artist create what to my mind is the best piece of work in my
life, based on anothers work which is released as a CC BY-SA work only to
have them prevent me from exibiting or distributing my work based on a moral
rights claim? To me, it is a thorny issue.

If you want to explore crazy "tentacle of evil" scenarios based on moral rights, you should probably get your examples from France. If you contrive a crazy fictitious "tentacle of evil" case based on moral rights and ask a Finnish lawyer about it, (s)he'll say that there is no case in the U.K., can't say for sure about Finland and the plaintiff would probably win in France. :-)

How do Finns view things for artistic works?

Novelists may have to have their works subjected to editing if the publisher refuses to publish the unedited manuscript. A novelist has to get attribution. Pseudonymous attribution is allowed if the author wants to use a pseudonym.

Music is subject to compulsory licensing for playing on radio. However, you can't use that route for getting full musical works for a movie sound track. IIRC, you can get a small snippet, but I would not recommend using the compulsory license for porn movies, because moral rights could very well be an issue.

On commercial TV channels, commercial breaks are allowed in movies. (I don't know if the director gets to choose the points where the movie may be interrupted as in some European countries.) Subtitles may be superimposed onto movies.

Someone who has physical property rights to a painting is not allowed to overpaint some areas of the painting in order to modify the work.

A painter has a statutory right (I am not joking!) to gain access, if reasonably implementable, to study his/her sold paintings if his/her current artistic endeavors require such studying.

A photograph of a statue is considered a copy of the statue for the purpose of enforcing the rights of the sculptor.

I also have not noticed an answer from people in moral rights countries as to
how they think the situation might play out in the case of a comissioned
mural on a building where a porn theatre opens next door to the mural.

Would I have to destroy the mural I paid to have painted, or would the porn
theatre be forced to move? Or some other solution?

IANAL. :-)

--
Henri Sivonen
hsivonen AT iki.fi
http://hsivonen.iki.fi/





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