Re: [OT] Droit d'auteur vs. free software? (Was: query from Georg Greve of GNU about Debian's opinion of the FDL
On Mon, Apr 28, 2003 at 12:34:36PM +0200,
Stephane Bortzmeyer <bortzmeyer@debian.org> wrote
a message of 30 lines which said:
> Can you explain the above? I do not see why and in which way the
> "Droit d'auteur" system is more hostile to free software.
Since you did not reply, I take the liberty, in order to stop further
spreading of this FUD, to explain why there is no incompatibility
between the "droit d'auteur" and the common law's copyright system.
Background: IANAL but I studied the issue in depth and the legal
opinions expressed here comply with the work done by real lawyers
(references at the end). I'm French so I eat stinking cheese. My
English is far from perfect, sorry.
Definitions: "Droit d'auteur" (a French word meaning "author's right")
is commonly used to describe the legal system used in most
Europe. "Common law's copyright" is commonly used to describe the
legal system used in Great Britain and its former colonies. There is a
lot of fighting, specially between the USA and the European Union,
between these two systems. I will deal here only with the issue of
free software.
Differences: as far as free software is concerned, the big difference
between the two systems seems to be that, under the "Droit d'auteur",
the author has a "moral right" which can *not* be waived or granted to
anyone else. Such a "moral right" does not exist under "common law's
copyright". The author also has a right to exploit (financially or
not) its work, and this "exploitation right" ("droit patrimonial" in
French) can be granted to someone else (an employer, for instance).
At first glance, it seems that this "moral right" could be a problem
with free software licences where the author renounces to some of her
rights.
But it is not a real problem. Under the "droit d'auteur", the author's
right over *software* is quite limited, (unlike other work, such as
books). For instance, she cannot object to a change in the software by
the owner of the "exploitation right". She only keeps the right to be
identified ("Software written by Sue Foobar") and a limited right to
distribute her work.
At least for the GPL, the author does not revokes any of the rights
that he have under the "droit d'auteur". See [clement 1999] "Une
obligation positive : Le respect du droit moral de l'auteur".
So, there is no reason to oppose "droit d'auteur" and free
software. On the contrary, there is currently a lot of lobbying in
Europe and in the world against this "Droit d'auteur" system and this
lobbying is mostly driven by the same companies that oppose free
software...
References:
[clement 1999] Mélanie Clément-Fontaine "La Licence Publique Générale
GNU" <URL:http://crao.net/gpl/>. The reference in French: the author
concludes that the GPL (and probably other free software licences) is
perfectly compatible with the French law, including the issue of
"droit d'auteur".
[clement 2003] Mélanie Clément-Fontaine "Pluralité et singularité des
logiciels libres". With a different point of view, the same
conclusion, extended to other licences.
[sedallian 2002] Valérie Sédallian "Garanties et responsabilités dans
les logiciels libres"
<URL:http://www.juriscom.net/pro/2/da20020901.htm>
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