[License-discuss] Question about Blue Oak License

[Shuji Sado]

Hi,

https://lists.opensource.org/pipermail/license-review_lists.opensource.org/2023-December/005452.html
> • Lucas: “While attempting to be maximally permissive in as few words as possible, the copyright license does not consider potentially non-licenseable aspects of copyright such as moral rights.” This is a fair point, though as a practical matter I’ve never seen moral rights come up in the software context (and Carlo’s response suggests they may not even be applicable).

It seems that license-review ml discussed the possibility of
personality rights issues in the Blue Oak license.  However, the above
conclusion was not accurate. Yes, software is certainly subject to
moral rights in Japan.

In Japan, almost all software developers sign a non-exercise agreement
of their moral rights with the company to which they belong. This has
been the practice in the software industry for decades. There is also
a history of Japanese government agencies participating in the work to
develop GPLv3 on the premise that programs are subject to moral
rights.

To summarize the discussion so far, the Blue Oak license is not open
source, at least not in Japan. It is possible for an author to
exercise author's moral rights to stop third parties from modifying
the program.

 I think license-review ml is for approval review, not for removal
from the list...

---
Shuji Sado
Chairman, Open Source Group Japan
https://opensource.jp/
https://shujisado.com/

2024/03/14 19:48 Shuji Sado <shujisado at gmail.com>:
>
> 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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> > >
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