OSD modification regarding what license can require of user

I.R.Maturana irm at myrealbox.com
Sun Mar 17 14:10:48 UTC 2002

> > When using the expression "derivative work" you are including
> > publication/distribution: That is: you read my phrase as if I was
> > describing a "published-distributed-derivative" work".
> No, I understand you correctly, but you are simply in error.
> The U.S. copyright law speaks of "preparing" derivative works
> as a right reserved to the author.  It does not speak of
> "distributing" or "publishing" them.

Among references given by other members of this list
there is also an important distinction between copyright and ownership 
of material

The Title 17 has the same squeletton that others european IP laws 
The word "Copyright" is used where Moral rights appears in European
corpus. This is the Berna and following Treaties, in fact.

All the texts are at : 
(Look under English/WIPO folder)

(Note, i understand the classic difference between US/Euro laws 
 not on copyright/moral rights (Art.6), but on the "Droit de suite" 
 and the inalienability concept of european authors (Art. 14ter of Berna)
 European authors can forbid the use of their work, even after the 
 cession of their rights. 
 But these are 2 different, albeit complementary, concepts.

> > While the transformed work is not made publicly available,
> > an author cannot forbid transformation. This would be an absurd.
> Absurd or not, it is the law.

Uh ! I believe that laws are not absurd, or they would not be Laws.

Imagine the time before Berne Convention. We are in 1885.
An US translator take Jules Verne books, publish them under his 
name and got the US Laws protection. 
This is legal, because the "author" protection come from national
law. The rights of "second author" are equally protected.
But in 1886, when oversea commercial communications are yet usual,
this state of the art of copyright does not appears very "moral" 
for the authors (nor editor companies, of course) :))

When the Convention arises, the handshake, and the squeletton of 
ideas is as follow:

a- Moral rights (copyright) are universal and attached to individuals. 
  A good example of copyright is that the name of author must appears
  on the published work, and before the name of translator. 
  In OS licences, this is for example the prerequisite that the 
  copyright notice must appears on the protected software.

  Another copyrigh (Moral right) is that translators must ask for
  author's permission before to _publish_ their translation

b- Given the author persmission, then US translator will be granted
  the same rights that any authors on his own country. 

c- National Laws preserve the rights of their citizen to translate the
   Jules Verne books to know their contents, as long as these versions
   are not published nor used for commercial distribution.
   In all cases, distribution for State Libraries, for example, are
   free of commercial/distribution rights 

Note that the precedence order of the above is : (c) > (b) > (a) :)

Now, consider that translation is the mother of all derivations, and
you got my point about software

> > For this same reason, he cannot forbid the _translation_ of his
> > work. (Can you believe seriously that States will adhere to a
> > Convention that allows authors to forbid translation of works ?
> I do seriously believe it; in fact, I know it is so.

Of course, you don't : 
Based on the (c) provision above, Berna Conventions allows States
to distribute works without fees nor royalties in their own countries, 
as long as their belong to countries under economical developpement.

Author's rights come after public interest of States.
If you consider that Software is under the Berna protection 
scheme, there is no reason to consider differently the software industry
(I understand that politically, or economically, there are some 
big questions, here, but we have not to consider political nor 
economical criteria, for now :))

Anyway, the question is to determine if software may fully adhere 
to the "artistic" IP protection scheme, as defined by Berna Convention.
The Berna protection implies some limitations for proprietary software 
(and also some warnings to open source software).

It's funny to see how these companies, after their "exploit" and 
almost destruction of the Berna palace, try now to send Berna to the 
trash, seconded by Medical, Music and Video Industry, and move now 
to patents !

And please note that these companies are working directly at WIPO level. 
Not at US Laws level. 

In my opinion, any Open Source licenses should enforce the idea that
software is protected under Berna and work this way. 
If you do not comply with Berna Convention, you are giving arguments 
to propietary software constructors to adopt the "patent strategy"
And the license protection scheme will be dead.

> Patents are not copyrights; the rules are entirely different.
> In particular, there is AFAIK no international patent law at all.

Not yet. And this is the problem they are trying to solve, before
sending Berna to the trash. 
The No e-patent social movement is important because companies 
(not only software companies) are trying to make patents international, 
and use them in place of Berna. 

Ok, this last is my own opinion, not a demonstration.

> > I suppose you are a lawyer. I am only studying these laws 
> since 1998.
> I am not a lawyer.

I am only a software translator who try to offer some help when faced 
to some manifest insufficiencies of the OS licensing scheme.

Kind regards - Cordialement

Natxo (Is A Name)
[I.R.Maturana -- Trad En>[ES<>FR] - http://www.in3activa.org ]
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