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 <[EMAIL PROTECTED]> 、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" <[EMAIL PROTECTED]> 、ォ、鬢ホ． 皈テ．サ。シ．ク。ァ > Arnoud Galactus Engelfriet <[EMAIL PROTECTED]> > 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 [EMAIL PROTECTED] __________________________________________________ Do You Yahoo!? Yahoo! BB is Broadband by Yahoo! http://bb.yahoo.co.jp/
