[License-discuss] Question about Blue Oak License

[Shuji Sado]

me:
> Usually, in Japan, contracts related to intellectual property rights
> always include a clause stating that "the author shall not exercise
> moral rights.
> Perhaps, "freedom of modification" can also be regarded as a
> declaration and agreement that the author will not exercise his/her
> moral rights.

I came up with a very simple solution. More precisely, I remembered.

GPLv3 defines the term "propagate" as follows. This clause is
considered to mention not only copyright but also moral rights in
Japan.  The phrase "under applicable copyright law" can be interpreted
to include both copyright and moral rights. This is because Japanese
copyright law provides for both copyright and moral rights.

~~~ GPLv3
To “propagate” a work means to do anything with it that, without
permission, would make you directly or secondarily liable for
infringement under applicable copyright law, except executing it on a
computer or modifying a private copy. Propagation includes copying,
distribution (with or without modification), making available to the
public, and in some countries other activities as well.
~~~


2024/03/14 18:07 Shuji Sado <shujisado at gmail.com>:
>
> Matija-san, thanks for the detailed explanation.
>
> > Typically that would be the right to _integrity_ (which could equate to
> > modification) – but at least under Slovenian law, this specific moral right
> > explicitly does not apply to software.
>
> This is apparently the part that differs from Slovenian law.
> As shown in the article below, Japanese law recognizes the right of
> identity preservation even for software. There are some exceptions,
> but if the author thinks that the modification is not "more
> effective", he/she can stop the modification act.
>
> ~~~ Japanese Copyright law
> Article 20(1) The author of a work has the right to preserve the
> integrity of that work and its title, and is not to be made to suffer
> any alteration, cut, or other modification thereto that is contrary to
> the author's intention.
>
> (2) The provisions of the preceding paragraph do not apply to the
> following modifications:
> (iii)the necessary modifications to make it so that a work of computer
> programming that otherwise cannot be executed on a particular computer
> can be executed on that computer, or to make it so that a work of
> computer programming can be executed more effectively on a computer;
> ~~~
>
> Usually, in Japan, contracts related to intellectual property rights
> always include a clause stating that "the author shall not exercise
> moral rights.
> Perhaps, "freedom of modification" can also be regarded as a
> declaration and agreement that the author will not exercise his/her
> moral rights.
>
>
>
> 2024/03/14 5:36 Matija Šuklje <matija at suklje.email>:
> >
> > Dne sreda, 13. marec 2024 ob 14:46:23 CET je Shuji Sado napisal(a):
> > > Moral rights, however, cannot be transferred.
> > […]
> > > In other words, it seems to me that an author who releases software
> > > under this license can stop users from distributing or modifying the
> > > software at any time.
> >
> > In Slovenia, just as most of (continental) Europe, we have moral rights as
> > well, so this does intrigue me.
> >
> > As moral rights are a collection of different rights of an author that are
> > bound to his person, the question that poses to me is which moral right
> > specifically could cause issue here.
> >
> > Typically that would be the right to _integrity_ (which could equate to
> > modification) – but at least under Slovenian law, this specific moral right
> > explicitly does not apply to software.
> >
> > The two that (under Slovenian law) remain applicable also for software are:
> >
> > Right of _divulgence_ / first publication – this would be an issue with any
> > license, and work of authorship, if it was violated. Would be interesting to
> > see an example play out in practice, how someone managed to get their code
> > published without their consent. Nothing the license can do here.
> >
> > Right of _authorship_ / paternity – this is probably the only moral right that
> > could be violated. But since it’s a right, first the author would need to make
> > use of it and demand authorship (e.g. as simple as putting their name in the
> > code). And for it to be violated, someone (presumably under the pretence of
> > the license) would need to remove it.
> >
> > So, I agree that the Blue Oak Model License ignores the concept of moral
> > rights, and it would probably be prudent¹ to explicitly state that any
> > notifications of authorship etc. should not be removed.
> >
> > Other then that, I have a hard time finding a way how moral rights – at least
> > under Slovenian jurisdiction – would break the license.
> >
> > Would love to hear more thoughts though, and am intrigued if this would play
> > out differently in Japan.
> >
> >
> > kind regards,
> > Matija
> > —
> > 1    Unfortunately, a common oversight of US-based license drafters.
> > --
> > gsm:    tel:+386.41.849.552
> > www:    https://matija.suklje.name
> > xmpp:   hook at campfire.wheremymonkeyis.at
> > matrix: @silverhook:matrix.org
> >
> >
> >
> >
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