Re: RES: What makes software copyrightable anyway?
On 18/05/05, Michael K. Edwards <m.k.edwards@gmail.com> wrote:
> <translation>
> But considering that "colorisation" is a technique based on the use of
> a computer and a laser, and that it permits (after the transfer of the
> original black-and-white film onto a videotape medium) the application
> of colors to a film that originally lacked them; that the result of
> such a process is in no way comparable to an "adaptation", which is
> defined "as an original work of both expression and composition" even
> though it borrows formal elements from a pre-existing work; and that,
> far from fitting these criteria, "colorisation" consists in effect of
> nothing but modifying a work by adding an element entirely foreign to
> the creator's aesthetic conception;
>
> And considering that in this instance, the original court has stated
> precisely that the the aesthetic conception which gave John Huston his
> great fame is founded on the interplay of black and white which
> allowed him to create the atmosphere in the context of which he
> directed actors and chose settings; that in any case he stated this
> clearly, in connection with his film "The Maltese Falcon", saying "I
> have crafted it in black and white, as a sculptor chooses to fashion
> clay, to cast his work in bronze, to sculpt marble."
>
> And given that in 1950 the technique of filming in color was already
> widespread and that another option was available, it is manifestly in
> pursuit of a deliberate aesthetic choice that the film "Asphalt
> Jungle" was crafted in black and white according to the process that
> its authors felt was most appropriate to the character of the work;
> </translation>
>
> So the Turner Corporation was deliberately flouting the director's
> famous aesthetic preference for black-and-white film, which was
> unarguably a deliberate choice with regard to "Asphalt Jungle", in
> order to appeal commercially to a certain audience. That seems to be
> what it takes to prove an offense against droits morals de l'auteur.
> Comments from real francophones and/or lawyers in droit d'auteur
> jurisdictions?
This case cannot be used in a debate around the GPL. This is about a
certain authorship right unkown to software copyright and common law.
This is about moral rights. These give the author not protection
against illegal distribution and all that, but give the author
protection for the integrity of his work. It is even not necessary
that it is distributed. These moral rights are excluded from software
copyright in EU jurisdictions by the protection of computer programs
directive, which states that only the Berne convention moral rights
are applicable to software. Thus this case is about a right unknown to
software copyright, and misplaced in this discussion.
On another note, moral rights are inalienable. So a contract/license
about these will be void to a great extent. This case is actually an
example of a broader discussion currently in droit d'auteur countries
about the conflicting interests of producers and authors. Producers
want to change a work to better market it, while the inalienable moral
right prohibits the producer to do so on his own accord.
Kind regards
Batist
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