Development of Creative Commons licenses

[Henri Sivonen <hsivonen AT iki.fi>]

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/