[pp.int.general] copyright vs. "droit dáuteur"

[Carlos Ayala Vargas]

Reinier Bakels wrote:
> The continental European "droit d'auteur" on the contrary starts from 
> the perspective of the author, who - in some percetions - owes a 
> "natural" right to the fruits of his mind.
I don't know the motivation of the first people who theorized on 
author's rights.

What I know is that TR/IP/S, UDHR, ECHR, national constitutions and 
other treaties don't come from /Mother Nature/ nor from /Gods/, but are 
written by human beings; thus, their contents are not /natural/ contents 
but agreed by human beings. And what is written by human beings can be 
changed by human beings -though, as you stated regarding UDHR and other 
fundamental texts, changes in certain texts should be handled with care-.
> What deserves our political sympathy? I believe that the "natural 
> rights" conception is dangerous.
I think that it's even more than dangerous; however, I haven't seen 
anyone here talking about /natural/ rights when talking about author's 
rights.
> Not everybody should be allowed to alter a carefully crafted piece of art.
> Therefore he may decide on the publication, and on changes to the 
> work: he has moral rights.
> Part of the moral right is also the authority to decide on (first and 
> further) publication at all.
Currently, publication lays within the commercial rights -according to 
the Berne Convention you use to mention, articles 11/bis/, 14, don't 
know if I miss any other related article-. Moral rights, however and 
according to that Convention, would be the following (according to 
article 6/bis/):

- to claim authorship of the work (the /by/ clause for Creative Commons)
- to object to any attack of the original work's integrity (the original 
work is /as is/; you may make derivative works from it if allowed to or 
if in public domain, though not presenting a modified work as the 
original one; you cannot present only parts of it as if they were the 
full work -e.g., censoring certain parts-; etc)

http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P123_20726

However, derivative works are a different issue, if I am not wrong, 
regulated by Berne Convention's article 12, which would lay within 
commercial rights.

http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P168_31376

Thus, while we in PIRATA agree to preserve moral rights as currently are 
-paternity and integrity-, the right to make derivative works, as long 
as lays within commercial rights, would end its exclusivity at the end 
of the commercial rights term. And we in PPI aim to shorten that term 
(together with the scope, e.g., authorizing non-commercial filesharing).
> Fortunately, it is controversial among lawyers. The natural rights 
> concept does not allow further questions to be asked - it is just 
> "natural". But I do feel some sympathy for the moral rights.
I also do feel, not some, but full sympathy for the moral rights ... 
among other reasons, because I don't think of them as /natural/ rights.
> This right risks to get lost with the increasingly common collective 
> rights management schemes, including levies - thaty certainly deserve 
> pirate's opposition. And moral rights loose their relevance if the 
> rights owner is not the actual author, but a publisher. Then there is 
> no longer a "personality right" deserving to be protected.
I'm sure that all pirate parties have in mind to control the activities 
of RMOs; while an author can join an RMO to get a more comfortable 
management of his author's rights, that author should have the chance of 
managing them by himself -here in Spain that chance simply doesn't 
exist; for authors who self-manage their rights, unbelievably some of 
those rights are lost-; and RMOs must observe the law, or being forced 
to cease in their activities -as any other entities also obliged to 
observe the law-. Ask Parti Pirate about SACEM, or PIRATA about SGAE, 
just in case there were any doubt.
> My grandfather 
> (http://www.artnet.com/artist/677548/reinier-sybrand-bakels.html) 
> would not have produced more paintings if he had known that (actually 
> after his death!) his grandchildren would benefit until 2026 from all 
> revenue (which is actually zero - my granbdfather is not very famous).
Wouldn't he? I thought artists made paintings not mainly because of 
incomes, but because of their need to artisticly express themselves.
> The same applies for the present debate on the proposed extension of 
> neighbouring rights from 50->95 years. This proposal is defended by 
> European-style, moral arguments. No one would argue that Cliff Richard 
> (in hindsight?!) would have produced more records if this rights would 
> be extended now.
First of all, the proposal of enlarging commercial rights term, at most, 
may be done by pro-copyright lobbies through distorting the moral rights 
-which are just two and very precise-.

Having said this, I'm not able to enter Cliff's /congratulated/ mind 
-/what a pity/, he lost ESC against Spain :) did that drama turn him 
into a /villain/ asking for never ending commercial rights term 
enlarging? who knows ...-, thus I'm not able to know whether his sole 
motivation to compose music songs is money, or whether he also has 
artistic needs; what I know is that, same as David Bowie was in 
bankruptcy in spite of his /Heroes/ album being a best-seller, if people 
like Mick Jagger, Paul McCartney or Cliff Richards become poor man 
wouldn't be because of not having received enough incomes from their 
works, but because of mismanaging -i.e., wasting- those *huge* incomes.

I mean, if after 20 years of working, a /mileurist/ -i.e., 1000 €/month 
or less- has more patrimony than any of those artists which had 
millionary incomes -and it's not due to having been robbed, or due to 
natural catastrophes, but due to vices, bad investments and, in general, 
too high standards of living-, I won't weep a sole tear for those 
artists; nor accept their attempts to continue money-sucking our pockets 
with levies and other tricky tricks. That's the argument often used in 
Spain against SGAE, Victor Manuel (former Franco supporter, current 
Zapatero supporter, and eternal Government supporter), Joan Manuel 
Serrat, Joaquin Sabina (a former /communist/, who found levies too juicy 
and United Left too ruined), Ramoncin, /Teddy/ Bautista, Miguel Bose and 
many other /brow artists/ who earn levies only because of their support 
of Zapatero

http://es.youtube.com/watch?v=711s0YrIIAA

That's the Spanish real scenario for politics; and most parties are 
afraid of countering /the 1000/ -out of 85.000 members, only less than 
1.000 SGAE members (included the abovementioned) have more than 50 % of 
rights to vote, thus controlling SGAE together with labels-. PIRATA has 
never been afraid, however we still are too tiny to become a menace for 
/the 1000/; and I believe that such reality, that of traditional 
politicians scared by powerful pro-copyright lobbies and that of the 
abuses made by RMOs (controlled by such lobbies), would be our central 
argument against current state of things, together with countering and 
denying the lobbies lies.
> To some extent, the American copyright philosophy allows an easier 
> attack on the virtues to the present law. Moral aspect are intangible, 
> and highly subjective. Utilitarian aspects are susceptible for pretty 
> concrete assessement.
I think the solution is to separate moral rights -which are just two, 
and very precise- from commercial rights -actually, even in Berne 
Convention (and of course in UDHR), they are two separated things-, and 
fiercely -and civicly- fight against those who attempt to mix them in 
order to justify their attempts to enlarge commercial rights term ... 
and even scope. Don't you agree?


Carlos Ayala
( Aiarakoa )

Partido Pirata National Board's Chairman