Date: Wed, 7 Mar 2001 08:30:27 +0000 (GMT) From: Terry Lambert <tlambert@primenet.com> To: dot@dotat.at (Tony Finch) Cc: tlambert@primenet.com (Terry Lambert), freebsd-chat@FreeBSD.ORG Subject: Re: Stallman stalls again Message-ID: <200103070830.BAA13983@usr05.primenet.com> In-Reply-To: <20010307032352.R412@hand.dotat.at> from "Tony Finch" at Mar 07, 2001 03:23:52 AM
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> >Authors do not have moral rights
>
> Yes they do: "moral rights" is the terminology used in copyright law,
> where it means "Supported by reason or probability; practically
> sufficient; -- opposed to {legal} or {demonstrable}; as, a moral
> evidence; a moral certainty" (Webster's), the point being that the
> legal rights are derived from underlying moral rights.
>
> This terminology doesn't seem to be used in US law, although it is
> used in the Berne Convention, and British, Australian, and Canadian
> copyright law, and probably many others.
I guess that's because the other countries don't want to
promote progress in the useful arts and sciences.
8-).
That's as it may be in other countries, but U.S. law acknowledges
no "moral rights" to accompany authorship.
The closest parallel in U.S. law is the acknowledgement of
"unalienable rights" (none of which include rights related to
authorship). Inalienable rights are considered to be rights
which can not be divorced from the condition of being human:
those rights which one can not give away or otherwise have
removed from them. Moral rights are profoundly different, in
that they are granted by society, and society may place
limitations on them.
Realize that the U.S. Constitution doesn't use this language
directly itself; it is the declaration of independence which
makes the claim:
We hold these truths to be self-evident: that all
men are created equal, that they are endowed by
their Creator with certain unalienable Rights,
that among these are Life, Liberty, and the
pursuit of Happiness. That to secure these rights,
Governments are instituted among Men, deriving
their just powers from the consent of the
governed. That whenever any Form of Government
becomes destructive of these ends, it is the
Right of the People to alter or to abolish it,
and to institute new Government, laying its
foundation on such principles and organizing its
powers in such form, as to them shall seem most
likely to effect their Safety and Happiness.
...in other words, the United States is very different from
most countries in its fundamental basis for law.
I guess the easiest way to reconcile this is that in the U.S.,
the legal rights are granted, whereas in countries where it is
a moral right, the government has the ability to abridge them.
Your point about the Berne convention and other treaties is
well taken: people who wish to reform U.S. intellectual
property law need to realize that the U.S. is still bound by
treaty to uphold the intellectual property law of other treaty
signatories. This basically means that even if the U.S. were
to, say, abolish the patent system entirely, people could
still file patents in foreign countries, which the U.S. would
be treaty bound to enforce. So "fixing" U.S. IP law is not
the "piece of cake" some would make it out to be.
Terry Lambert
terry@lambert.org
---
Any opinions in this posting are my own and not those of my present
or previous employers.
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