<!DOCTYPE html PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN">
<html>
<head>
<meta content="text/html;charset=ISO-8859-1" http-equiv="Content-Type">
</head>
<body bgcolor="#ffffff" text="#000000">
Richard M Stallman wrote:
<blockquote cite="mid:E1LFtDk-0000ck-Vs@fencepost.gnu.org" type="cite">
<pre wrap="">That position amounts to a blanket defense of privatization above human rights. Ethically it must be rejected. Legally it must be abolished.
To reduce the term of copyright only for future works is insufficient. The Pirate Party must confront the injustice of that position, and the invalid ethical premises it is based on, or else abandon its principal goal.
There is only one stand to take: if copyright can be lengthened then it can be shortened. If copyright power can be increased then it can be decreased</pre>
</blockquote>
- From <a href="http://www.un.org/Overview/rights.html">UDHR, article
11.2</a>: "<i>No one shall be held guilty of any penal offence on
account of any act
or omission which did not constitute a penal offence, under national or
international law, at the time when it was committed. Nor shall a
heavier penalty be imposed than the one that was applicable at the time
the penal offence was committed</i>"; this only applies to penal
offences related to material author's rights; e.g., in Spain, making
commercial use of copyrighted works<br>
- From <a
href="http://en.wikisource.org/wiki/Spanish_Constitution_of_1978/Preliminary_Title">Spanish
Constitution, article 9</a>: "<i>The Constitution guarantees</i> [...] <i>the
non-retroactivity of punitive provisions that are not favourable to or
restrictive of individual rights</i>"<br>
- From <a href="http://www.hri.org/docs/ECHR50.html#C.Art7">ECHR,
article 7.1</a>: "<i>No one shall be held guilty of any criminal
offence on account of any act or omission which did not constitute a
criminal offence under national or international law at the time when
it was committed</i>"; I'm afraid of 7.2, though that's another story)<br>
- From <a href="http://www.usconstitution.net/const.html#A1Sec9">US
Constitution, article I, section 9</a>: "<i>No </i>[...]<i> ex post
facto Law shall be passed</i>"; in US Constitution context, <a
href="http://www.usconstitution.net/glossary.html#EXPOST"><i>ex post
facto</i></a> seems to have, according to judgments like Calder vs Bull
(3 US 386 [1798]), a simmilar meaning as UDHR, SpC and ECHR<br>
<br>
Of course Richard that, if author's material rights can be lengthened,
they can be shortened. You may pass a law which retroactively shortens
it -i.e., not only for future works but also for past works-, but what
would happen? I believe that US Supreme Court, ECJ, Spanish
Constitutional Court and simmilar courts would make simmilar judgments
-partially, yet probably not totally, revoking such law-, due to
understanding irretroactiveness of prejudicial provisions as follows:<br>
<br>
- for authors, in case that author's material rights get shortened
-e.g., from 70 years after author's death, to 10 years after creation
of the intellectual work-: if rights get shortened in 2010, and an
author has two works -one made in 2009 and one made in 2011-, and the
author dies in 2015:<br>
* the <b>2009 work</b>'s material rights would last <b>until 2085</b><br>
* the <b>2011</b> <b>work</b>'s material rights would last <b>until
2021</b><br>
<br>
- for the rest of citizens, in case that author's material rights get
lengthened -e.g., records material rights from 50 years after their
publishing to 95-: if rights get lengthened in 2010, an author
published a film edition in 1950 and two people used it -one copied and
resold copies in 2009 without author's permission, the other one
broadcasted the film in 2011 without author's permission-:<br>
* the <b>first person should give no money</b> from his resales, nor
had committed any infringment, as <b>in 2009 the film edition was in
public domain</b><br>
* the <b>second person, even without economic profit, would have
infringed</b> material author's rights -<b>after the lengthening</b>, <b>material
author's rights</b> on the film edition <b>would last until 2045</b>-<br>
<br>
Briefly: author from first example would benefit from 2009's legal
context to enlength his material rights; the first person from the
second example would benefit from 2009's legal context to have had
profit from the intellectual works without needing to give anything to
the author. If I'm not wrong, that would be irretroactiveness in the
author's rights context.<br>
<br>
However, as Reinier said, I'm an engineer, not a lawyer; so, if you
prefer, you can rather ask legal experts to confirm my analysis :)
Prior to blame the irretroactiveness principle ... is the one that
allows you and me, in case that something that we made yesterday
-provided yesterday was not a crime- becomes a crime tomorrow, to avoid
being charged and being found guilty because of that thing we did.
Regards,<br>
<br>
<br>
Carlos Ayala<br>
( Aiarakoa )<br>
<br>
Partido Pirata National Board's Chairman<br>
<br>
P.S.: Anyway, this is a good reason to avoid -if possible, as EU plans
to make it- having material rights term on records being lengthened to
95 years :-O<br>
P.P.S.: <b>Provided that author's material rights become effectively
shortened -in term & scope-</b>, and if due to irretroactiveness it
is not applied to copyrighted works made prior to such important change
.... <b>I wouldn't worry if I have to wait some decades until being
able to freely use movies like <a
href="http://www.imdb.com/title/tt0299930/"><i>Gigli</i></a> and <a
href="http://www.imdb.com/title/tt0799949/"><i>Epic Movie</i></a>, or
songs like <a
href="http://es.youtube.com/watch?v=d2sun973nfY&feature=related"><i>Dance
Chiki Chiki</i></a></b>. <b>As long as such hypothetical and
enourmously great victory remains time after time, I can wait for sure
-meanwhile, there is copyleft culture :)</b>-.<br>
</body>
</html>