In Moral Rights, Endowment Effects, and Things in Copyright Mike Madison exhibits a fair amount of confusion concerning the difference between a privilege such as copyright and moral rights. So, I’ll explain…
It is pretty straightforward.
There are privileges concerning intellectual works, and there are (natural) rights concerning intellectual works.
Copyright is a privilege granted for the benefit of the press (necessarily arising in each original work – a work that involves no copy).
Moral rights refer to the (natural) rights pertaining to an intellectual work and its use.
Unfortunately, in many jurisdictions the understanding of moral rights has been infected by the unnatural aspects of copyright and thus takes up a more proprietary aspect.
For example, instead of a moral right to integrity being a correctly understood as a matter of truth (that a work presented as the author’s is indeed the unadulterated work of the author), it is improperly taken to mean that an author has the power to veto any modifications or derivatives they feel to be insulting to their work or reputation.
In being indoctrinated to believe copyright is a right, people are then confused when confronted with a natural right. For example, people wonder how an author can have a perpetual right to identify themselves as the author of their work when they can only prevent copies of their work for a century or so. This is because the natural right to truth is inviolable and belongs to all, not just the author. Whereas, the privilege of suspending everyone’s right to copy is granted at law and thus arbitrarily limited. Authorship of a work is a fact and is eternal.
As for the ‘doctrine’ of first sale, it’s only called a ‘doctrine’ because some would like to undermine consideration of copies as the property of their purchasers. Copyright only suspends the right to make copies. It does not impinge upon the recognition of an authorised copy as the material and intellectual property of its purchaser. When you buy a book, you retain the natural right to exclude others from it. Only your natural right to make copies or otherwise communicate its expression has been abrogated by copyright. You at least retain the right to exploit and communicate the knowledge therein. So, selling what is your property (since no copying or communication is involved) cannot infringe copyright. What some claim undermines this is if a purchaser performs an act only permitted by a license attached to the work where that license is conditioned upon the purchaser consequently forfeiting ownership of the work. However, since no agreement or exchange actually occurs this is not a valid transfer of property. In any case, sale of the work simply means that the purchaser could not complete the conditions of the license and so has infringed copyright – not ‘disposed of stolen property’ (per inferred agreement to transfer its ownership).
How do moral rights, as you think they ought properly be understood, relate to legal enforcement? Or do you only have normative and reputational remedies in mind?
Perhaps take integrity, which you seem to have reduced to not saying someone else wrote something that they didn’t.
I think there should be legal remedies available for persistent/deliberate falsehood or deceit. When things cannot be resolved by communication or automated dispute resolution, then a tribunal could be provided where two parties support the truth of conflicting statements, e.g. “This is a poem by Fred” vs “No it isn’t, you’ve changed the expletives I used and the gender of the protagonist”.
When things escalate into fraud, e.g. an artist sells someone else’s work as their own, and serious amounts of fan-funded money are involved then it’s probably a matter for the courts.
Integrity is just a matter of truth. Copyright infects it with a proprietary aspect in that people think the right to integrity is the right to veto modifications (& copies thereof) – if they don’t like them. And then you have a defamatory aspect creeping in, with the idea that the artist can decide what modifications insult them or their reputation.
An author can authorise modifications, i.e. agree that the adoption of changes suggested by an editor preserve their work’s integrity, but this simply concerns this work as attributed to this author. It doesn’t preclude anyone else creating a derivative – as long as that derivative doesn’t pretend to be the original or the work of that author.
There is no right violated in putting a moustache on the Mona Lisa given no claim is made that it is the original painting nor that it is authorised by Da Vinci. And even if he were alive he has no right to forbid modifications he considers derogatory or that impugn his reputation (though he might covet such a privilege).
Moreover, moral rights are apprehensive with defending the individuality as well as the reputation of authors which is quite the opposite when it comes to the economic rights under copyright.
Philippines Telemarketing, one might better say that, being a monopoly, copyright was an economically useful privilege – at the expense of annulling the right to copy or communicate covered works.
Moral rights might help protect an author’s reputation, but the author has no natural right to protect their reputation per se.
In Confusion and Complexity: High time to prune the Creative Commons licenses? Terry Hancock suggests that the set of Creative Commons Licenses can be simplified and reduced. However, I suggest this is to miss the mission of Creative Commons.
The whole point of CC having a variety of licenses is to demonstrate that the copyright holding, self-publishing author is in charge of determining what their audience can do, i.e. to insinuate that copyright is properly a right of the author, to modulate as they see fit.
If CC was actually principled upon restoring to the public their freedoms suspended by copyright then it would have a single copyright neutralising license, either abdicating it (cf BSD), or copylefting it (cf GPL).
Unlike the FSF, CC is a pro-copyright organisation, hence its willingness to imply that copyright is as much a right one may wish to unreserve as an inalienable/inviolable (natural) right – also known as a moral right. Why on earth would someone wish to waive their moral right to authorship to permit someone to falsely claim authorship of their work? Conversely, given that the right to copy was derogated from the individual’s right to liberty in 1709 by Queen Anne, it is quite laudable to wish to restore this to the public from whom it was stolen.
Terry, apart from demonstrating a complicated interim migration path, is in danger of suggesting that Creative Commons should commit the apostasy of moving from an organisation principled on empowering authors’ use of copyright to one principled on enabling/persuading authors to restore to the public their cultural liberty.
A single, libertarian license is what a liberty principled organisation would have created. Instead, espousing copyright as if a right, CC has created a complex confusion of licensing pollutants that have prevented a simple demarcation between copyright/proprietary and copyleft/free culture developing. This is probably the original objective, to consolidate copyright’s prominence and importance in any self-publishing artist’s consciousness.
Nina Paley has it right. “Copying art is an act of love”. It is those who love an artist and their work who are driven to want to promote that artist, to share their published work among their friends.
Cultural intercourse is not something to be constrained by commercial privilege. We must move from an obsession with copyright and obeying the copyright holder, to loving art, respecting the artist, and honesty in sharing their work and promoting them. This means embracing moral rights, but deprecating anachronistic constraints on distribution, copying, communication, or commerce. If you love me, sing my song, tell my story, but be true.
Meh, I have no use for any of their licences except for CC0. I’m currently publishing my commercial work CC0. I would do BSD but I estimate it’s requirement to include attribution to be over-burdensome for would be sharers, and not really any of my business.
Just out of curiosity, you wouldn’t know of any legal instruments aside from CC0 which disarm the noisome recourse to copyright at my disposal to best approximate public domain work, would you?
While I agree that the Creative Commons have an agenda of their own, I’d say this one licence of theirs isn’t half bad. But I’m interested in your opinion on that as well.
CC0 as demonstrated by the FAQ you link to is corrupt in conflating privileges (legislatively granted ‘rights’) with natural rights. Being inalienable, natural rights (aka moral rights in the context of intellectual work) should not be the subject of a license or other testament, nor even suggested as something an individual would aspire to be without.
So, the CC0 is just another device to cement the privilege of copyright as equivalent to a right, except in this case to join them for those who wish to divest themselves of all nuisance ‘rights’, which for some strange reason cannot be divested in certain jurisdictions (that properly recognise them as natural, inalienable, unlike granted privileges).
So, CC0 attempts to throw the baby out with the bathwater, the rights out with the privileges. It goes too far as if in petulance, offended at rejection.
There is no CC license that has been formulated to emancipate the public from the yoke of copyright, and this is because CC cannot conceive of a culture in which the author is not king over their subject audience, possessed of a god given authorial right to dictate how their published work may or may not be used, and to demand due obeisance wherever it is.
As for simulating a lack of copyright ‘protection’ all bets are off. Try claiming copyright in your work as dated 1810? Or perhaps declare that your work is wholly unoriginal, primarily factual, and not covered by copyright? Alternatively, provide a covenant that you will not sue anyone for any act involving your work that they are at liberty to do. Also check out the discussions on Nina Paley’s site (as I linked to in my article).
Interesting stuff. But I would hardly say the FSF is anti-copyright as the GPL is dependent on copyright to work.
An interesting discussion is Glyn Moodys interview with Stallman on whether Free Software could exist without copyright. blogs.computerworldu…
Mathias, the GPL attempts to restore to the public as much of the freedom suspended from them by copyright and patent as possible. That it uses a copyright license to achieve this should not be mistaken as ‘supporting copyright’. A license restores liberty (typically conditionally), it is not a constraint.
If copyright and patent were abolished tomorrow it would be a tad silly for the FSF to campaign for their reinstatement in order that the GPL could once again restore the freedoms they suspended.
“Being inalienable, natural rights (aka moral rights in the context of intellectual work)”
it is my understanding that in some places what is called moral rights are more than what I think you are calling moral rights. check the cc mailing lists for some indication of this.
all the best,
Yes, Drew, like trademark and libel, in some jurisdictions moral rights become contaminated by the monopolist’s proprietary assumptions of control over others’ use of a covered work or design, and so they lose sight of protecting rights (such as the public’s apprehension of the truth – against deceit) and venture into nebulous realms of protecting a privileged party’s reputation or peace of mind (against disrepute, defamation, insult, etc.).
By moral rights I refer to the natural rights relating to intellectual works as opposed to the privileges (aka legislatively granted rights). Most of the moral rights that tend to be enumerated can be pared back to their natural foundation. It is only assumptions of control inculcated by copyright that lets their definition drift back toward proprietary privileges.
From Wikipedia:Moral rights:
Moral rights may mean several things:
- Moral rights (copyright law) are a subset of the rights of creators of copyrighted works, including the right of attribution, the right to have a work published anonymously or pseudonymously, and the right to the integrity of the work.
- Natural rights, also called moral rights or inalienable rights, are rights which are not contingent upon the laws, customs, or beliefs of a particular society or polity.
Moral rights are not a subset of proprietary ‘rights’ nor traditionally part of copyright law (YJMV). They exist independently of statute, and are recognised, not granted. It is not surprising that many would have moral rights given equal status to privileges, legislatively granted ‘rights’.
I’ll run through the ones listed:
One does not have a natural right to be attributed. It is only that attribution must be truthful, i.e. accurate, not misleading, that misattribution does not occur whether explicitly or implicitly. If attribution can be omitted without misattribution occuring then no dishonesty occurs.
- ‘Right to have a work published anonymously or pseudonymously’
Again, this isn’t well phrased. One is at liberty to publish a work without needing to identify oneself as author. One’s right to privacy outweighs mere pursuit of the truth of authorship. That no author can be identified for a work doesn’t permit anyone else to claim or misattribute authorship.
- ‘Right to the integrity of the work’
Many presume this to mean that an author can veto modifications to their work. In some juridictions it may well be interpreted that way, but really it’s that what is presented as an author’s work should truly be that author’s work (or authorised by them). If it is clear to the audience that a work is modified, that it is an unauthorised derivative of another author’s work, then there is no loss of integrity. A work that is bowdlerised or otherwise adulterated without the audience’s knowledge has lost its integrity, whereas if the audience is cognisant that it is a subtle derivative then it is a new work distinct from the original.
CC is, for media files, what freeware is for software.
A freeware can be downloaded for free, and copied, but often it’s closed, you cannot sell it and you cannot modify it (exactly lika a CC nc-by-nd)
And freeware is not free software (it can also slow-down free software); many freewares are abandoned, or become commercial software.
Also, in CC there is nothing about the “source code”: many multimedia file have a source, that is needed to modify them, like software; for example, a 3d rendering (made with Poser, for example) cannot be easily modified, if you don’t have the 3d model. A song could be hard to edit, if you have only the MP3 and not the MIDI file.
But usually, even with a CC license, there is nothing that requires you to share the “source” with the final work.
Another problem is that using the “source code” is not always possible: if you have a program, and its source code, with the right compiler you can get a binary that is identical to the original (so, you can do a single change, without touching anything else). But, with a song, if you get the lyrics, can you rebuild the original song? No, because your voice is not the same of the original singer. If you have the script of a movie, can you rebuild the movie? No, because you don’t have the same actors.
And sometimes, the “source” cannot be copied: if I publish a pencil drawn picture, you’ll have only a scan of it, and you cannot work on it with pencil: but the source is only one, and the only way I have to make a copy is to hand-draw another one.
Having seen others Pondering Perpetual Moral Rights I suspect that discovering natural rights can be a shock to those brought up on a diet of privileges (legislatively created rights). One such privilege, copyright, is the natural right to copy, annulled in the majority (1709), to be left, by exclusion, in the hands of a few – hence why we have ‘copyright holders’ and not ‘right to life holders’. See Paine’s Rights of Man.
Moral rights derive from natural law, and so are not the privileges tendentiously misnamed as rights, though their legislative recognition often enhances/corrupts them with proprietary/unnatural aspects.
Given that we’re endowed by our creator with rights (nature → natural) and these are inherent and so a priori inalienable (as one’s shadow) then it should not be surprising that they are not transferable as privileges, nor do they exist separately from the human being endowed with them.
Governments are instituted among men to recognise and secure our rights, not to create privileges (by necessarily annulling the respective right in the majority). See The Declaration of Independence of the Thirteen Colonies.
So, authorship is a fact and perpetual. Misrepresenting authorship is a deceit and a violation of each audience members’ right to truth (from our natural/vital ability to apprehend the truth of our senses). The perpetuality of authorship does not arise because law or lawyers claim the author’s moral right is perpetual. Shakespeare is dead and has no right to be violated, but this doesn’t change the truth of who authored his works, nor does it make it open season for others to claim authorship. If one claims to have authored Macbeth one deceives one’s audience. It is not up to Shakespeare’s ghost to sue the fraudster per his ‘moral right’, but up to the government to secure the audience’s right to truth – to provide them with remedies against fraud.
As to divulgation, while an author has a natural right to privacy, to exclude others from their writings, they have no right to gag those to whom they confide their writings. Confidentiality is a matter of trust, not the power to alienate another from their liberty to disclose that which they have been entrusted not to (nor a legally granted power to punish them for their liberty). Obviously, at the natural end of the author’s life, so ends their natural right to privacy. However, those who inherit their belongings have their own privacy, so cannot be forced to disclose what they have inherited.
When you understand natural rights, you can then more easily understand where legislation strays from the path of securing rights to the granting of privileges, and where confusion inevitably arises.
A lot of confusion could be avoided if privileges weren’t pretended to be rights, but then that rather undermines the need to persuade the public that privileges are good things.