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Reinier Bakels wrote:
<blockquote cite="mid:4364E582E1B140639025486ACC9A7465@RBB2008"
type="cite">This is the kind of situation that the protection of
property (NOT "intellectual property") is supposed to solve. I don't
know whether you understand any Dutch or german, but they talk about
"vermogensrechten" or "Vermögensrechte". Words that do not remind of
intellectual property.
<br>
</blockquote>
I slightly understand German, and -if I am not wrong- <i>vermöge</i>
translates as <b>patrimony</b> or <i>good</i> -in the sense of <b>ownable</b>
<i>good</i>-.<br>
<br>
I'm gonna say the following: <b>we better talk about </b>material -or
even better, <b>commercial- rights, or we fall again in the trap</b>.
Why? Simple: you start talking about commercial rights as goods or
patrimony; then, because of being goods of patrimony, the lobby would
be able to argue that they would be heritable and transferable; also,
the lobby would argue that they would have an appropriable nature;
finally,<b> the lobby would argue that, as they have an appropriable
side, they are property or sort of property</b>; not advisable, I think.<br>
<br>
In PIRATA, it is commented as a possible solution <b>to prevent
commercial author's rights from being transferable at all</b>: that is,
if Reinier is the author and Rick the publisher, Reinier can license
Rick -until the commercial rights expiracy, i.e., prior to entering
public domain- commercial usage of his works; the commercial usage can
be settled by a fixed amount or by a variable one -i.e., a percentage
of sales-; even, Reinier can allow Rick some specific cases of
relicensing -i.e., if Rick's label is a holding, it may have several
firms (one for luxury editions, one for low-cost editions, etc)-.
However, if you have paid attention to my example, <b>Reinier is
always the one who licenses, as he would always be the rightholder</b>
-he is the author, and UDHR talks about "<i>moral and material
interests of authors</i>"; of authors, and of nobody else (if we don't
deal carefully with this issue, the spirit of such provision would be
perverted again)-; <b>the editor, thus, would not be rightholder
anymore</b> -he just uses a license-.<br>
<br>
Even, the worrying case of the author's own expiracy -i.e., dying
before the 5/10/20/30-year commercial term- generates a debate, as:<br>
<br>
- if you allow the author's heirs to behave as rightholders until
complete expiracy, in some way you're allowing rights inheritance, thus
giving arguments to the lobby<br>
<br>
- if you don't allow the author's heirs to behave as rightholders -it
would happen if commercial rights were defined to expire if the author
dies prior to the end of the commercial term-, the property fallacy
would be contained; however, it would truly become the <i>van Gogh
paradox</i> that Reinier talked about last day<br>
<br>
- maybe there can be a third solution: UN ESC <a
href="http://www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/03902145edbbe797c125711500584ea8/$FILE/G0640060.pdf">talks
about</a> ensuring authors an "<i>adequate standard of living</i>";
this can be solved in many ways without exclusively thinking of fixed
terms; variable terms, and exclusive and non-exclusive (i.e., everyone
being able to commercially exploit intellectual works not belonging to
public domain, as long as those who exploits commercially the works pay
royalties to the authors) commercial exploitation scenarios; I think
that UN conditions give us a considerable margin to act<br>
<br>
Finally, Reinier, retaking my unanswered question -you have avoided
twice to answer it-: would you consider, in the light of PPI proposed
reforms on the author's rights framework, commercial rights as
property? <br>
<br>
<br>
Carlos Ayala<br>
( Aiarakoa )<br>
<br>
Partido Pirata National Board's Chairman<br>
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