Development of Creative Commons licenses

[wiki_tomos <wiki_tomos AT inter7.jp>]

As a non-lawyer who has many questions and not so many answers, 
I sometimes wonder if moral rights are really that easy to give up 
in the U.S. 

I also have some different view about how things are in non-U.S. 
country. I happen to know Japanese copyright law and cases, 
(though I am not a professional lawyer or anything). So I explain 
a bit of what I think I know. 


1) U.S. 

The United States is a member of the Berne Convention. Berne Convention 
includes a provision about moral rights. (See 
http://www.law.cornell.edu/treaties/berne/6bis.html ).

In the U.S., the moral rights are not simply ignored, but argued to be 
covered mostly through laws other than the copyright law. Certain 
moral rights to some works of visual arts are covered by the copyright law, 
but most others are by unfair competition law and law regarding libel, 
if I remember correctly. 

Could that mean, possibly, that you cannot modify a work and place it in a 
context that would harm the original author's reputation even in the U.S., 
regardless of the copyright status of the work? 

Could that also mean, possibly, that you cannot take someone's work and 
mess with attribution just because it is in the public domain? 

When people dedicate their works into public domain, i.e. give up 
their copyrights, do the "copyrights" include rights to attribution and 
rights to integrity? Or are those rights outside of the copyright law 
in the U.S. so that simply giving up copyrights does not mean giving 
up those rights of attribution & integrity?

I recall a U.S. court case (Smith v. Montoro) in which an actor for a 
film was not credited at the end of the show, and someone else's name 
was there. He sued and the Circuit court decided (overturning the lower 
court's decision) that giving attribution to someone else was against 
Lanham Act. 

I can cite other court cases that I've read about. But enough for now 
to illustrate the question. 

My impression so far is that false attribution and defaming modification 
is problematic, but simple removal of attribution and non-defaming 
modification are okay. 

I also remember some of the governmental sites providing photo galleries. 
They sometimes ask to give credits to the photographers for those photoes 
with photographers' names. Is that a legal requirement for an attribution? 


2) Japanese case

Japan has long been a member of Berne Convention, and moral right provisions 
have been in its copyright law. There are some cases where seemingly small 
modifications were recognized as in violation of the right of integrity. 

Those rights are inalienable - authors cannot effectively give up or 
transfer those rights, it is said. However, there is a widely practiced 
use of "special clause" - authors, in their license agreement/ contract 
especially promise not to exercise their right to the licensee. Note this 
is not a transferring of giving up, but the author still holds the right, 
but simply does not exercise it. 

Is this technical go-around legally effective? It seems there is no 
court case explicitly dealing with this. A governmental commitee dealing 
with copyright reform is taking up the issue of moral rights, along with 
a bunch of other issues, so they might make some recommendation. Scholars 
are divided on this - some argue the "special clause" is effective only under 
certain circumstances, some say moral rights can even be given up (abondoned) 
by declaration, etc. 

Anyhow, this seems to be a very uncertain area of copyright to me. 

By the way, one of the things that cocerns me is the provision that 
if a work is modified by others after the death of the author, and 
the author would not like the modification, the author's decendants 
(up to 2 generations) can take legal action. And as you can imagine, 
it could well be virtually impossible to check if any of author A's 
grandchildren are alive. 

Best, 

Tomos

----- Original Message -----
From: Peter Brink <peter.brink AT brinkdata.se>
To: Discussion on the Creative Commons license drafts 
<cc-licenses AT lists.ibiblio.org>
Sent: Tue, 12 Apr 2005 23:04:01 +0200
Subject: Re: domain of public domain license



>David Isaac skrev:

> > Question #1: is the CC Public
>> Domain license able to accomplish its intent outside the US 
>> and specifically in France and Germany?
>
>IMHO no... An originator cannot fully alienate himself from his work in 
>most of Continental Europe and Scandinavia.