Copyright vs. Author's Right [LWN.net]

Copyright vs. Author's Right

Posted Aug 25, 2005 7:53 UTC (Thu) by cantsin (guest, #4420)
Parent article: On the defense of piracy enablers

Several posters suggested that Florian Mueller's arguments were based on his background in a different, i.e. continental European legal system. This is correct, and I just would like to back it with facts:

Continental European law doesn't have copyright, but an author's right ("droit d'auteur", "Urheberrecht", "auteursrecht" etc.).
The crucial difference between author's right and copyright is that author's right is "inalienable", i.e. it can't be transferred from the author to another party. If I - as a German - create a work, the author's right will remain mine, and can't be owned by my publisher or employer, until its expiration 70 years after my death.
However, continental European publishers and employers routinely circumvent the inalienability of author's right by making the author/creator sign contracts that grants them exclusive "representation" of their author's right (similar to a lawyer representing the rights of a client)
For authors/creators of free software and free content, the author's right mostly provides advantages because, unless they sign a contract, they are free to release their work under a free license, and no employer can claim rights on it.
The Blizzard case, however, demonstrates advantages of Anglo-American copyright to continental author's right. Another example is the policy that developers of GNU software sign over copyright to the FSF. This is not possible or legal within continental European legislation.

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Posted Aug 25, 2005 8:00 UTC (Thu) by FlorianMueller (guest, #32048) [Link]

Prior to your posting, I had already acknowledged that systematic difference in my posting dated Aug 25, 2005 6:42 UTC (Thu), but I also explained that everything I said was based on the assumption that someone has a certain right, irrespective of whether it's a constitution, a code of law, case law or an agreement that creates that right. The key thing is that if someone has that right, you always have the alternative to build a new stadium from scratch.

Posted Aug 25, 2005 18:20 UTC (Thu) by maderik (subscriber, #28840) [Link]

if someone has that right...

There are three parts to this "if" to cause it -- and thus the premise that follows it -- to fail:

That there is such a right recognized in the US. The best example I can give of why such a right is not an inherent right in the states is the issue a while back w.r.t colorization of B&W movies. This required new law in the US. As I recall the discussions, European nations did not feel the need to pass similar laws because of their artists' rights traditions were sufficient protection.
That the bnet server violates the artists' rights even as European countries typically see them. Your stadium analogy fails because that is a modification of an original such that the original no longer exists. Your case would be stronger if a new and different stadium was proposed using the modified design and that was rejected. Even then, you've not made any convincing argument that the bnet server changes any of the game's artistic attributes -- as opposed to functional attributes -- that are the domain of artists' rights. Does it violate an artist's right if the new stadium is identical in external appearance but uses a gravel foundation instead of a sand foundation?
Even if such a right exists, that no other rights superceed it. Specifically the rights of use and interoperability. If the changes are so subtle that the impact to the artist's rights is minimal, then do the user's rights (e.g. first sale, etc.) outweigh the artists rights in this case?