Some Clarifications of International Copyright Moral Rights Duration, Alienability, and U.S. Compliance with Berne (LONG) Re: [OT] Droit d'auteur vs. free software?
I wanted to respond to several of your inquires from mail
(thanks..) and on browsing the thread on moral rights
duration, alienability, and the U.S. compliance with Berne
Convention Article 6bis. It seems there's some
significant interest in moral rights afterall.
Whodathunkit, huh Peter...
* International Copyright, Generally
1) As a general matter, there is no "international
copyright law." Each jurisdiction has it's own laws, but
agrees to
“national treatment” scheme where everyone agrees to
protect everyone else
’s citizen’s under their respective domestic law. So
international agreements may require them to craft their
domestic laws in certain ways, so the
“international copyright” operates to enforce a minimum
standard for protections. In some cases, countries will
adopt the language of a treaty. Remember though, it's a
domestic law and other areas of domestic law can and will
gloss the copyright analysis, e.g. civil procedure,
contract, agency.
2) Moral rights often vary *widely* between jurisdictions.
What rights are recognized, their scope, and durations
are among the variations. Some commentators have come up
with some colorful metaphors to describe the uniformity of
the "doctrine." I
’ve cited some issues below (particularly on duration).
3) Berne requires moral rights be protected; TRIPS don't!
The U.S. "protects" moral rights as a Berne signatory.
The official line was we just didn't need to change any of
our law 'cause "we already do that." U.S.
interests--common law jurisdictions in genera--are very
hostile to Moral Rights. Moral rights touch a nerve with
important Anglo themes such as freedom of contract and
FAIR USE!! [My professor shared alot of the sentiment
here that it's a bad thing, on fair use principles..]
4) Differences between Anglo "Common Law" and the
continental "Civil Law" approaches further gloss the
drawing of lines on moral rights. Related matters like
"work for hire" and the like are antithetical to the
continental (French) view of authors rights.
5) Differences between jurisdictions are closing as
"harmonization" has become the rule. Maybe this all goes
away if globalization survives..
6) Legal issues are resolved by people arguing about it
… in an authoritative court or legislature. Where there
are issues that are grey, common sense is a good guide,
but many decisions will seem counter to all but people
from alternative realities. If it
’s a fact specific issue/question on a point of law, U.S.
lawyers will be prohibited (by the laws of their
jurisdiction) from giving you an opinion (unless the are
implicitly agreeing to competently represent you on the
issue.) It sucks to be on either side of the fence, but
that's the breaks. General statements of law are ok, but
“legal opinions” are problematic. That's why people can
sound coy sometimes.
7) Anyone interested in Moral Rights must be nuts... uh,
I'm not nuts.. and Hey! who writes software and shares it
for free anyway.. :)
Moral Rights Discussions and References:
In general I think a good article introducing the Moral
Rights approach and contrasting with U.S. regime
appropriate for someone with some knowledge of copyright
is Roberta Rosenthal Kwall, COPYRIGHT AND THE MORAL RIGHT:
IS AN AMERICAN MARRIAGE POSSIBLE?, 38 Vand. L. Rev. 1
(1985).
I've not read this but skimming it suggests it's
definitely worth a read.
19 Colum.-VLA J.L. & Arts 199 Columbia-VLA Journal of Law
and the Arts Spring/Summer 1995 ALAI CONGRESS: ANTWERP
1993 THE MORAL RIGHT OF THE AUTHOR: MORAL RIGHTS AND THE
CIVIL LAW COUNTRIES Adolf Dietz
There's a lot of other interesting articles discussing the
problems with U.S. Berne "compliance" and how (and why) a
U.S. Moral Rights law should be adopted.
Also I had been working on an article on this subject I
guess I should actually revisit it after all. I'd be very
appreciative of peoples' criticism and comments.
http://www.nihonlinks.com/JamesMiller/OpenSourceMoralRights/
* Moral Rights Duration
--- Arnoud Galactus Engelfriet <galactus@stack.nl> 、ォ
、鬢ホ．皈テ．サ。シ．ク。ァ
> Edmund GRIMLEY EVANS wrote:
> > years in 1995, with the effect that "Mein Kampf"
[...]
> > promotes fascism!
>
> The moral rights expire together with the economic
> rights, so
> that won't fly. But I guess they'll try to come up
> with something.
> Arnoud
>
> --
> Arnoud Engelfriet, Dutch patent attorney - Speaking
> only for myself
> Patents, copyright and IPR explained for techies:
> http://www.iusmentis.com/
I think the practical effect may not change but there are
basically two camps--one that tracks the copyright
duration and others that are perpetual.
Roberta Rosenthal Kwall, COPYRIGHT AND THE MORAL RIGHT: IS
AN AMERICAN MARRIAGE POSSIBLE?, 38 Vand. L. Rev. 1, 15
(1985).
"Countries that recognize the moral right can be divided
into two groups with respect to the question of the
right's duration. The first group, which includes West
Germany [FN55] and the Netherlands, [FN56] follows the
approach advocated by the Berne Convention and
simultaneously terminates a creator's moral rights and
copyright. The second group adheres to the French view
that moral rights are perpetual. [FN57] In France a
creator's moral or personality rights always have been
regarded as a separate body of protections, rather than as
a component of the creator's pecuniary rights. [FN58]
Thus, in French theory no logical inconsistency results
from protecting a creator's moral rights in perpetuity,
despite the limited duration of his copyright. [FN59]
。ネ
Here are the citations in case you get a hankering to hang
out in your local law library.
[FN55]. Act dealing with Copyright and Related Rights, No.
5 of Sept. 9, 1965, art. 64, Bundesgesetzblatt, Teil I
(amended Mar. 2, 1974), reprinted in COPYRIGHT LAWS AND
TREATIES OF THE WORLD (UNESCO 1982).
[FN56]. Law Concerning the New Regulation of Copyright,
No. 308 of Sept. 23, 1912, art. 25, Staatsblad Voor het
Koniakrisk der Nederlanden (amended Oct. 27, 1972),
reprinted in COPYRIGHT LAWS AND TREATIES OF THE WORLD
(UNESCO 1982).
[FN57]. France, Law No. 57-298 on Literary and Artistic
Property, Mar. 11, 1957, art. 6, Journal Officiel de la R
将アpublique Francaise, reprinted in COPYRIGHT LAWS AND
TREATIES OF THE WORLD (UNESCO 1982). Countries that have
adopted this approach include: Ecuador, Law No. 610 on
Copyright, No. 149 of Aug. 13, 1976, art. 18, Registro
Oficial; Guinea, Law No. 043/APN/CP Adopting Provisions on
Copyright, Aug. 9, 1980, art. 3(a); Ivory Coast, Law No.
78-634 on the Protection of Intellectual Works, July 28,
1978, art. 22, Journal Officiel de la R
将アpublique de C将ムte d'Ivoire; and Senegal, Law No.
73-52 on the Protection of Copyright, No. 4333 of Dec. 4,
1973, art. 3(a), Journal Officiel de la Republique du
Senegal; collectively reprinted in COPYRIGHT LAWS AND
TREATIES OF THE WORLD (UNESCO 1982).
[FN58]. See Diamond at 247 (in France an author can obtain
protection for his moral rights even if he has not secured
protection for his pecuniary rights).
* Moral Rights Alienability
On the Alienability issue, in many jurisdictions the
rights are indeed inalienable. However, the protections
for "integrity" do seem to be subject to a
"reasonableness" test when it gets tested in court.
Roberta Rosenthal Kwall, COPYRIGHT AND THE MORAL RIGHT: IS
AN AMERICAN MARRIAGE POSSIBLE?, 38 Vand. L. Rev. 1, 12-13
(1985).
"Some scholars have argued that moral rights should not be
alienable because they protect personal attributes such as
personality, honor, and reputation. France and numerous
other countries expressly adhere to this position, and so,
theoretically, in those countries a creator cannot waive
or assign his moral rights. Nevertheless, in adjudicating
the validity of waivers as a defense in actions for
alleged right of integrity violations, the French
judiciary tends to enforce contracts allowing reasonable
alterations that do not distort the spirit of the
creator's work, particularly with respect to adaptations
and contributions to collective works."
The author provides some cites to support the proposition
that the moral rights of authors are necessarily balanced
against those doing adaptations.
Here are some references on the issue of perpetual
inalienability cited in the article.
French Law No. 57-298 on Literary and Artistic Property,
Mar. 11, 1957, art. 6 provides that the moral right is
'perpetuel, inali
将アnable et imprescriptible.' Other countries in which
the right is inalienable include: Brazil, Law on the
Rights of Authors, No. 5988, Dec. 14, 1973, art. 28;
Chile, Law on Copyright, No. 17.336, Aug. 28, 1970,
amended Oct. 18, 1972, arts. 15, 16 (inalienable but
transmissible to surviving spouse and author's heirs);
Colombia, Law on Copyright, No. 86, Dec. 26, 1946, arts.
48, 49; Ecuador, Law on Copyright, No. 610, July 30, 1976,
art. 18; Guinea, Law No. 043/APN/CP Adopting Provisions on
Copyright and Neighboring Rights, Aug. 9, 1980, art. 3(a);
Italy, Law for the Protection of Copyright, No. 633, Apr.
22, 1941, amended Jan. 8, 1979, arts. 22, 142; Japan,
Copyright Law, No. 48, May 6, 1970, amended by Law No. 49,
May 18, 1978, art. 59; Portugal, Decree-Law No. 46980,
Apr. 27, 1966, art. 57; and Senegal, Law on the Protection
of Copyright, No. 73-52, Dec. 4, 1973, art. 3(a):
collectively reprinted in 1-2 COPYRIGHT LAWS AND TREATIES
OF THE WORLD (UNESCO 1982).
* On U.S. Berne Convention Compliance
--- "Thomas Bushnell, BSG" <tb@becket.net> 、ォ、鬢ホ．
皈テ．サ。シ．ク。ァ
> Arnoud Galactus Engelfriet <galactus@stack.nl>
> writes:
> > I think you'll find this concept is very much
> embedded in
> > European copyright law. In fact it's in the Berne
> Convention
[...]
> 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.
Actually Article 6bis *requires* protection of moral
rights. That is why the U.S. did not sign on for a
hundred years, and then only half-heartedly. There's alot
of commentary whether the U.S. is actually in compliance.
--
James Miller
jamiller@yahoo.co.jp
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