[pp.int.general] where is the manifesto?

[Helmut Pozimski]

Am Thursday 25 December 2008 18:52:09 schrieb Reinier Bakels:
> if you want to go back to the days before the french revolution ...
> note that this type of property protection in germany is covered by art. 14
> of the german constitution - and the first twenty articles of the german
> constitution in essence can not be changed. after "some" problems (weimar
> republic, 2nd world war) in 1949 the germans decided that some principles
> should be protected against mala fide legislators ... do you really propose
> to change this? then mr. stallmann, a revolution is the only solution.
These are really difficult questions which should not be considered to have 
easy answers. Yes, property is guaranted int the Grundgesetz but only to some 
extend. First, every property binds the owner to use it for the good of 
general public. Second, property might not be taken away without 
compensation . You can't change the right, that's also true.

But when the question of copyright and author's right arises, it is a really 
difficult situation. Our constitutional court once ruled that author's rights 
are property. (they didn't say "intellectual property" because something like 
that simply doesn't exist) That's exactly the reason why I proposed an 
amendement erasing the sentence "Authors rights are rights. They are not 
property"  because that would conflict with German law. However, the decision 
says as well that though author's rights are property, not every aspect of 
them and especially not every aspect of the commercial exploitation rights 
has automatical constitutional protection. This means we cetainly would be 
able to adjust our laws regarding author's rights to what we want them to be.

But we have to be really careful and consider the unique legal situation in 
every single state. I am not sure if it would be possible to reduce the term 
for works already published. While I think, if you are able to extend the 
term for existing works, you should also be able to shorten it. it might not 
be possible. At least in the German criminal law there exists a principle 
that you can't punish anyone for doing something that wasn't a crime by law 
at the time he did it. So, we have to look at every state seperately and 
consider our options.

For example, if you shorten the term of copyright in Germany only for new 
works, you could as well argue that this discrimates author's who create new 
works and is therefore unconstitutional. 

regards
Helmut
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