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Re: [OT] Droit d'auteur vs. free software?

Thomas Bushnell, BSG wrote:
> As I read the law, it says that there are some rights over the work
> which the artist *cannot* renounce.  You would have it that if the
> artist uses a certain form of license, the rights have been
> effectively renounced.  If that were a correct interpretation, then
> there would be nothing that cannot be renounced.

Moral rights indeed cannot be renounced. The motivation is that
if they could, every author would be forced to renounce them
every time.

Moral rights are restricted in that the courts must find the
violation must harm the author's honor or reputation. This is
not the same as being able to restrict all forms of reuse. I
would say that with free software, a modified verison of the
program adds to the author's honor, since honor and reputation
in the free software community are based on your code and
its reuse.

> The purpose of the law is, for example, to say that if an artist sells
> a painting, the purchaser cannot tear it up, destroy it, sprinkle more
> paint across the surface, and the like.  A recent post also gave the
> example of an architect, who can prevent the homeowner from making
> changes that violate the "integrity" of his work.

If it harms the author's reputation, he has the right to
stop the modification. The basis of author's rights is
that an author is the "owner" of a work. It's not just
a government-granted temporary monopoly, but a natural
right to control a work. 

> Now the law says that the artist *cannot* relinquish this right.  He
> has a *permanent* right to prevent such things being done with his
> work, and that this *permanent* right is one that his heirs can
> inherit.  The law says that the artist *cannot* sell this right.  He
> has it *no matter what*.

As far as I know, the heirs must follow the author's intentions
when applying the inherited moral right. They cannot decide
for themselves whether *they* like the change, they must guess
whether the now deceased author would have liked it. 

Heirs unfortunately sometimes do things to works that the author
probably would not have liked (like publishing unpublished works
he considered not good enough). Strangely enough no one can do
anything about that.

> Now you are saying that if the artist releases the work under a free
> software license, he has in effect relinquished those rights which the
> law says he cannot.  

By giving a copyright license you don't give up your moral
rights. It would be unreasonable to say that if you license
a work for publication, you could then assert your moral
right to stop that publication. I would argue that if the
publication license were general like with free software,
you couldn't stop any further publication. 

The interesting case of course is with modifications. Free
software can be incorporated in new (free) software that
has an entirely different purpose. If you make some library
and I incorporate it in a program that makes child pornography
or is used for nazi propaganda, you couldn't do anything
about that by using your free software license. But I think
you could assert your moral right if being associated with
child pornographers or nazis would hurt your honor or
reputation. And thus you could stop me from distributing the


Arnoud Engelfriet, Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/

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