[pp.int.general] purpose of manifesto
r.bakels at planet.nl
Wed Jan 28 12:45:14 CET 2009
>>> Though I think you already asked this question, just to clarify your
>>> point: are you comparing cultural works with material properties? Also,
>>> if we achieve to change the commercial rights term & scope, would you
>>> consider those rights -when applied to WORKS CREATED AFTER SUCH LEGAL
>>> CHANGE (very important: I'm not talking about current works, Reinier,
>>> but future, post-change works)- as /property/ rights?
Sorry, I made a mistake. (Am I allowed to make mistakes? Perhaps we exchange
too many messages!)
But I also answered this question before. Rights become "property rights" by
their properties (sorry, the word "property" here has a very different
meaning), not because they are designated as such. So the question boils
down to the question whether it would be possible to design a right on a
"literary or artistic work" that does not have the properties of a property
right. Good question! I guess still if the right is marked non-transferable
(= is not marked trasferable), it is a "property right" as long as it can be
commercially exploited. And if the right would not allow exploitation? At
first sight, a moral-only author's right seems to fulfil that purpose, i.e.
a right that coneceivably only allows authors to object changes hurting the
artistic quality of the work and/or the reputation of the author. But then I
recall the architect of the brand new Central Railway Station in Berlin.
After serious technical problems (the location is close to a marshland) it
was finished just in time for the football championship in 2006 (World Cup).
But then the architect complained that the builders did not fully respect
his design. The court ordered that the station had to be changed. Actually I
do not know what eventually happened, but I have been often in Berlin
lately, and I have not seen any building activity, so I guess that the
architect swallowed his pride for a commensurate sum of money. So in sum,
yes, moral rights can be exploited as well. While moral rights (by
definition) can not be waived, the author is free to decide to exercise them
or to accept infringement.
To conclude, I do not manage to devise a right on "works" which is not a
property right. You need help from someone else.
Perhaps it may help to restate the problem. The issue obviously is not that
you don't want a "property right" per se. It is a legal concept, and law
should follow policy, not reversely!
If you mean that the government should be free to alter the right after
creation if and when desired, changing the monetary value of the right, I
don't think there is a solution. Because that is exactly what human rights
like art. 1 of the first protocol to the ECHR and art. 14 of the German
Constitution protect ...
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