Re: [OT] Droit d'auteur vs. free software?
Arnoud Galactus Engelfriet <galactus@stack.nl> writes:
> 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.
The copyright laws in the US do *not* say that the heirs are
restricted to what the author wants. But even so, that's not the
point.
In my example case, the heirs *think* they are doing what the author
wants, but they are wrong, because the author is not as bigoted as
they are.
"Not much you can do about that"? Hardly--you could, for example,
*not have the whole bogus concept in the first place*.
> 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.
Or if the heirs are simply mistaken.
Your first sentence, however, is false. Suppose you were right: that
if the author does not complain, his right can't possibly be
violated. Then the author would be able to cede his right, right? He
could say "I promise not to complain". And a free software license is
just that, isn't it?
If the author can say "I promise not to complain" then he can cede his
right. But the law says he cannot cede his right, so he cannot
promise to complain.
Which means, in turn, that he cannot validly give away his software
under a free software license, because, whether he wants it or not,
the law *preserves* his right, such that if he later changes his mind,
he can insist that his "inalienable author's rights" be respected.
> 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.
No. When property lands in the hands of heirs, they manage it however
they want. That's the way normal property does. The author's rights
say that it must not be defamatory of the author, but nothing in that
says that it is the *author's* determination of "what is defamatory"
which counts. And in many cases, great harm can be wreaked by
well-meaning, *not* dishonest, but still incorrect, guesses about what
"the author wanted".
And since the *author* has the permanent, inalienable right to change
his mind, that right itself also passes to the heirs, does it not?
> I think it is strange that this responsibility does not extend to,
> say, publishing something the author wanted to keep a secret.
Not me. But then US law is nowhere near as censorious as what
Europeans seem happy to put up with.
> 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).
The Berne Convention is very carefully ambiguous, permitting both the
European and the US versions of copyright. If it were not for that,
the US wouldn't have gone along at all.
> To clarify: the right to object to mutilations of the work
> that harm the honor or reputation of the author cannot be renounced.
Right. And the author *cannot* renounce that. No matter *what* he
says.
And if ten years after he dies, his heirs think something is
defamatory, then they can sue, even if the author says "no changes to
this work will count as defamatory", precisely because that statement
by the author is an attempt to renounce something that *cannot* be
renounced.
Thomas
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