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

Reinier Bakels r.bakels at planet.nl
Tue Jan 6 22:53:12 CET 2009

Interesting! You say effectively the same as the professor I heard in a 
seminar on the relationship "intellectual property" (sorry, they used the 
term) and human rights: "NO LAWS ARE MADE IN HEAVEN"! Still there is a 
perception that authors' right in the legal system only protects rights that 
"natually" existed before the legislatior got involved. I admit, this is 
somehow weird, but there still are supporters of this view (entirely or 
partially). Allegedly it is one of the reasons why the Berne convention does 
not allow any requirement of formalities. The Americans only accepted this 
rule in the late 1980s, and in the US it is stil advantageous to add the © 
(circle-c) for extra legal certainty.

The term of moral rights is not necessarily the same as the term of the 
exploitation rights. In France, moral rights last forever. In NL, the moral 
rights of an author only continue after his death if he decided so in his 
will (I saw a warning the other day that authors often forget to mention 
this in their will).

Finally, the right to prohibit publication, is it a moral right or a 
commercial right? Whatever the answer is, the collective rights management 
schemes typically ignore this aspect. They assume by default that the author 
is only interested in money. What a dreadful mistake! These dreadful bodies 
don't foster the authors' right, they ignore tehem (to some extent).

----- Original Message ----- 
From: "Carlos Ayala Vargas" <aiarakoa at yahoo.es>
To: "Pirate Parties International -- General Talk" 
<pp.international.general at lists.pirateweb.net>
Sent: Tuesday, January 06, 2009 5:40 PM
Subject: Re: [pp.int.general] copyright vs. "droit dáuteur"

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
> 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)


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.


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


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

Pirate Parties International - General Talk
pp.international.general at lists.pirateweb.net

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