[Disclaimer: The below are statements of general law. If you need legal advice, see an attorney. I am licensed to practice in the District of Columbia and no other jurisdiction.] IAAL
Interesting thread, I'm going to step through a few points that caught my eye--hope they may be useful clarifications of the law. I provide some citations to works that should be in any Anglo library--full cites toward the end. It's unlikely that you'll find them anywhere else, but I'm happy to followup if people have more questions. Also the "author intention" point is interesting and I recal having reviewed some cases on this point some years ago but don't recal to discuss here. Maybe followup later if there's interest. First, remember on a breach of the distribution terms of an original work, courts will apply the domestic law of the country where protection is sought, under international copyright principles of "national treatment." See Paul Edward Geller, 1-INT International Copyright Law and Practices § 6(2)(a) (2000) (discussing the application of contract-copyright conflicts of law analysis and stating the principles of national treatment are the central rule). Also consider that the law of moral rights is less uniform than has been suggested. Indeed the French influence in the doctrine is important but moral rights protections are not so much a single doctrine as a collection of protections jurisdictions tend to mix and match. Moreover one could argue the trends of regional and international property agreements to deny protection for Moral Rights require some attention. (The TRIPS agreement absolved states of obligations to protect moral rights while even Berne Convention signatories are pretty spotty on their implementations--the U.S. being one that basically extends no rights). Also consider these "dilutions" and harmonizations have been going on since the beginning of international protections for copyright. Look at Ricketson, infra note below, at 40-41 (discussing that the stricter continental traditions may have experienced a dilution of protection in response to harmonization in early days of Berne); Some jurisdictions apply their Moral Rights jurisprudence to computer software as they apply to any other work, without special limitations. See Sterling at 288 (describing Germany's general treatment and lack of restrictions of applying moral rights to software). Other jurisdictions extend no Moral Rights to software authors. See Sterling at 289 (noting the United Kingdom's lack of any moral rights protections for software). However, the majority of countries fall in-between and apply some limitations to Moral Rights protections for software, as has been discussed. See Sterling at 291 (describing France and Japan's treatment of moral rights for software by limiting the application of the right of integrity by prohibiting invoking the rights against changes by users for compatibility). I think I had compiled a user friendly index comparing some various jurisdictions a couple years ago I could dig up if it's useful to you guys. The important differences, in my view, for FOSS authors relate to the scope of the integrity right, how the right of attribution may be exercised, and how employment affects the vesting of rights. In the end, though, consider that moral rights might actually be the most elegant way of protecting FOSS. What are you really wanting to protect? Your right to prohibit derivative works without a license? rights to copy without paying you a bunch of money? Not likely if you're licensing your code under the GPL... Your right to be know as the hacker of some given code [paternity], and the right to ensure others have the rights you want for them, without someone being able to take your gift to them away [integrity], flow naturally from a moral rights perspective. Feel free to forward this around but I'd appreciate a note. now sleep.. -- Most sources cited and discussed in more detail at http://www.nihonlinks.com/JamesMiller/OpenSourceMoralRights/ Berne Convention art. 6bis. See TRIPS Agreement, supra note 152, at art. 9(1) (absolving states of obligations and rights regarding moral rights). Sam Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986 3-5, 39, 49-55 (1989) (discussing the origins of domestic copyright laws without exception in a crown entitlement to publishers with the later ratification in civil or statutory law and international protections via the Berne convention emerging to remedy the chaos of binational arrangements). See J.A.L. Sterling, LL.B., World Copyright Law, Protection of Author's Works, Performances, Phonographs, Films Video, Broadcasts, and Published Editions in National, International and Regional Law 308, 322-27 (1998) (surveying the rights of adaptation and distribution in the economic rights context from national and international legislative and case law sources). Stig Stromholm, Copyright Comparison of Laws 16-18 (1990) (presenting the national treatment of adaptations). Laura Lee Van Velzen, Note, Injecting a Dose of Duty into the Doctrine of Droit Moral, 74 Iowa L. Rev. 629, 636 & n.33 (1989) (reviewing the disharmony among jurisdictions and the Berne Conventions generally weaker protections and citing the weak protections in Berne as the reason authors must accept less protections than they might otherwise enjoy). See Thomas P. Heide, The Moral Right of Integrity and the Global Information Infrastructure: Time for a New Approach?, 2 U.C. Davis J. Int'l L. & Pol'y 211, 245 n.152 (1996) (discussing the intertwined nature of moral and economic rights in civil law context); --- Branden Robinson <[EMAIL PROTECTED]> からのメッセ ージ： > On Thu, May 01, 2003 at 10:01:35AM +0100, Edmund > GRIMLEY EVANS wrote: > > Stephane Bortzmeyer <[EMAIL PROTECTED]>: > > > > > > In any event, if non-common law countries have > legal frameworks that > > > > technically render Free Software as conceived > by the FSF and the Debian > > > > Project impossible, > > > > > > Pure FUD. See my rebuke of Nathanael Nerode's > message that I just > > > sent. > > > > I think the truth is that some non-common-law > countries (France?) have > > laws relating to moral rights that might make it > hard or impossible to > > fully guarantee the DFSG-freedom of certain works, > which may or may > > not include works that would normally be described > as "software". > > Now, now, he already dismissed my statement as FUD. > Don't go pointing > out that he did so incorrectly. That just > embarrasses people. We don't > have time for closely-reasoned arguments when we're > touting the > superiority of the French legal system. > > -- > G. Branden Robinson | > Debian GNU/Linux | Music is > the brandy of the damned. > [EMAIL PROTECTED] | -- George > Bernard Shaw > http://people.debian.org/~branden/ | > > ATTACHMENT part 2 application/pgp-signature -- James Miller [EMAIL PROTECTED] __________________________________________________ Do You Yahoo!? Yahoo! BB is Broadband by Yahoo! http://bb.yahoo.co.jp/
