Re: query from Georg Greve of GNU about Debian's opinion of the FDL
[Disclaimer: The below are statements of general law. If
you need legal advice, see an attorney. I am licensed to
practice in the District of Columbia and no other
jurisdiction.] IAAL
Interesting thread, I'm going to step through a few points
that caught my eye--hope they may be useful clarifications
of the law. I provide some citations to works that should
be in any Anglo library--full cites toward the end. It's
unlikely that you'll find them anywhere else, but I'm
happy to followup if people have more questions. Also the
"author intention" point is interesting and I recal having
reviewed some cases on this point some years ago but don't
recal to discuss here. Maybe followup later if there's
interest.
First, remember on a breach of the distribution terms of
an original work, courts will apply the domestic law of
the country where protection is sought, under
international copyright principles of "national
treatment." See Paul Edward Geller, 1-INT International
Copyright Law and Practices
§ 6(2)(a) (2000) (discussing the application of
contract-copyright conflicts of law analysis and stating
the principles of national treatment are the central
rule).
Also consider that the law of moral rights is less uniform
than has been suggested. Indeed the French influence in
the doctrine is important but moral rights protections are
not so much a single doctrine as a collection of
protections jurisdictions tend to mix and match. Moreover
one could argue the trends of regional and international
property agreements to deny protection for Moral Rights
require some attention. (The TRIPS agreement absolved
states of obligations to protect moral rights while even
Berne Convention signatories are pretty spotty on their
implementations--the U.S. being one that basically extends
no rights). Also consider these "dilutions" and
harmonizations have been going on since the beginning of
international protections for copyright. Look at
Ricketson, infra note below, at 40-41 (discussing that the
stricter continental traditions may have experienced a
dilution of protection in response to harmonization in
early days of Berne);
Some jurisdictions apply their Moral Rights jurisprudence
to computer software as they apply to any other work,
without special limitations. See Sterling at 288
(describing Germany's general treatment and lack of
restrictions of applying moral rights to software). Other
jurisdictions extend no Moral Rights to software authors.
See Sterling at 289 (noting the United Kingdom's lack of
any moral rights protections for software).
However, the majority of countries fall in-between and
apply some limitations to Moral Rights protections for
software, as has been discussed. See Sterling at 291
(describing France and Japan's treatment of moral rights
for software by limiting the application of the right of
integrity by prohibiting invoking the rights against
changes by users for compatibility).
I think I had compiled a user friendly index comparing
some various jurisdictions a couple years ago I could dig
up if it's useful to you guys.
The important differences, in my view, for FOSS authors
relate to the scope of the integrity right, how the right
of attribution may be exercised, and how employment
affects the vesting of rights.
In the end, though, consider that moral rights might
actually be the most elegant way of protecting FOSS. What
are you really wanting to protect? Your right to prohibit
derivative works without a license? rights to copy
without paying you a bunch of money? Not likely if you're
licensing your code under the GPL...
Your right to be know as the hacker of some given code
[paternity], and the right to ensure others have the
rights you want for them, without someone being able to
take your gift to them away [integrity], flow naturally
from a moral rights perspective.
Feel free to forward this around but I'd appreciate a
note. now sleep..
--
Most sources cited and discussed in more detail at
http://www.nihonlinks.com/JamesMiller/OpenSourceMoralRights/
Berne Convention art. 6bis.
See TRIPS Agreement, supra note 152, at art. 9(1)
(absolving states of obligations and rights regarding
moral rights).
Sam Ricketson, The Berne Convention for the Protection of
Literary and Artistic Works: 1886-1986 3-5, 39, 49-55
(1989) (discussing the origins of domestic copyright laws
without exception in a crown entitlement to publishers
with the later ratification in civil or statutory law and
international protections via the Berne convention
emerging to remedy the chaos of binational arrangements).
See J.A.L. Sterling, LL.B., World Copyright Law,
Protection of Author's Works, Performances, Phonographs,
Films Video, Broadcasts, and Published Editions in
National, International and Regional Law 308, 322-27
(1998) (surveying the rights of adaptation and
distribution in the economic rights context from national
and international legislative and case law sources).
Stig Stromholm, Copyright Comparison of Laws 16-18 (1990)
(presenting the national treatment of adaptations).
Laura Lee Van Velzen, Note, Injecting a Dose of Duty into
the Doctrine of Droit Moral, 74 Iowa L. Rev. 629, 636 &
n.33 (1989) (reviewing the disharmony among jurisdictions
and the Berne Conventions generally weaker protections and
citing the weak protections in Berne as the reason authors
must accept less protections than they might otherwise
enjoy).
See Thomas P. Heide, The Moral Right of Integrity and the
Global Information Infrastructure: Time for a New
Approach?, 2 U.C. Davis J. Int'l L. & Pol'y 211, 245 n.152
(1996) (discussing the intertwined nature of moral and
economic rights in civil law context);
--- Branden Robinson <branden@debian.org> からのメッセ
ージ：
> On Thu, May 01, 2003 at 10:01:35AM +0100, Edmund
> GRIMLEY EVANS wrote:
> > Stephane Bortzmeyer <bortzmeyer@debian.org>:
> >
> > > > In any event, if non-common law countries have
> legal frameworks that
> > > > technically render Free Software as conceived
> by the FSF and the Debian
> > > > Project impossible,
> > >
> > > Pure FUD. See my rebuke of Nathanael Nerode's
> message that I just
> > > sent.
> >
> > I think the truth is that some non-common-law
> countries (France?) have
> > laws relating to moral rights that might make it
> hard or impossible to
> > fully guarantee the DFSG-freedom of certain works,
> which may or may
> > not include works that would normally be described
> as "software".
>
> Now, now, he already dismissed my statement as FUD.
> Don't go pointing
> out that he did so incorrectly. That just
> embarrasses people. We don't
> have time for closely-reasoned arguments when we're
> touting the
> superiority of the French legal system.
>
> --
> G. Branden Robinson |
> Debian GNU/Linux | Music is
> the brandy of the damned.
> branden@debian.org | -- George
> Bernard Shaw
> http://people.debian.org/~branden/ |
>
> ATTACHMENT part 2 application/pgp-signature
--
James Miller
jamiller@yahoo.co.jp
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