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

Thomas Bushnell, BSG wrote:
> Arnoud Galactus Engelfriet <galactus@stack.nl> writes:
> > 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. 
> But the author is dead.  And people all the time guess wrong.  For
> example, imagine a closeted gay author who died fifty years ago.  His
> heirs are homophobic, and oppose the publication of any biography that
> accurately describes the man's life.  And accordingly they oppose any
> use of his works in the biography.

Then they're not doing what the law says they must. Not much
you can do about that, other than hoping the judge will see
it differently.

> What the person thinks is defamatory, and what the heirs think, are
> simply not the same thing.  Even if the heirs do their very best job,
> the whole point of the set up is that you *discount* what the author
> says, because the author *cannot* be deemed to be renouncing the
> right.  If the heirs can convince a court, it won't matter at all
> whether they are right.

If the author does not complain, then it's reasonable to assume
his moral right isn't harmed. And if after his death his heirs
do complain, then the court is faced with the question whether
this is in line with what the author would have wanted. Of course,
if the heirs are good liars and/or the court is gullible, then
you can arrive at something that's totally contrary to the
author's wishes.

> > 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 probably would not have liked (like publishing unpublished works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.
> Strangely?  THE MAN IS DEAD.  Dead men have no rights.  How hard is
> this? 

When he died, his copyright and moral rights went to his heirs.
It is now their responsibility to manage those rights in the
way the deceased author would have wanted. I think it is strange
that this responsibility does not extend to, say, publishing
something the author wanted to keep a secret. 

> > 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. 
> I don't think that you *have* any such moral rights.  I think it's a
> crazy and insane concept, and I will fight it tooth and nail.

I think you'll find this concept is very much embedded in 
European copyright law. In fact it's in the Berne Convention
from the very beginning. That's why it's called author's rights
and not just copyright (as is the case in the USA).

> Among other things, it totally contradicts the notion of free
> software, especially given that these rights cannot be renounced.

To clarify: the right to object to mutilations of the work
that harm the honor or reputation of the author cannot be renounced. 


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

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