GPL and Moral Rights

[João Miguel Neves]

A Sex, 2003-08-29 às 21:34, edA-qa mort-ora-y escreveu:
> On my recent quest to compare contracts, licenses, and the GPL, I 
> stumbled across something that is disconcerting to me: the moral rights 
> provided by the Berne Convention seem to impose limits on the freedom 
> provided by the GPL.

> The GPL does not appear to make any mention of moral rights, so 
> according to the convention (and some law resources I checked) the moral 
> rights stay with the author (even in the case of copyright assignment).
> 
"Moral" rights, at least as defined in Portugal, can not be waived by an
author's authorisation (aka license). So it's really not worthy
mentioning them.

> As stated, the concerning bit is the author's ability "to object to any 
> distortion, mutilation or other modification of, or other derogatory 
> action in relation to, the said work, which would be prejudicial to his 
> honor or reputation."
> 
Yes, and that's just one of them. You have some variations from country
to country.

I am not a lawyer, nor have an academic law education. I've been
studying the relation between "moral" rights and the GPL in Portugal. I
believe that what I've learned might apply to other countries:

The moral rights can not be waived (neither by authorisation nor
contract), but there are some decisions made by the author that limit
the exercise of moral rights. One of the "moral" rights is the decision
to first publish a work. That one is not exercisable anymore after the
decision to publish a work.

Such reasoning also applies for the integrity: if the author allowed
specific modification defending the works integrity doesn't make sense.

My only doubt at this moment is the part that pertains to the
"prejudicial to his honor or reputation" and derived works. Can an
author prevent distribution of a derived work whose distribution and
modification he/she authorised? My first answer would be no, but I
haven't found such a court case.

> Best as I can tell, what might be accepted as prejudicial may vary 
> greatly from country to country.  This of course makes the problem 
> worse, as the GPL does not join licenses, when distributing the linux 
> kernel, you actually have a license from every copyright holder 
> contributing to that kernel.

That's one of the reasons FSF requires copyright assignements.

> What is to prevent any one contributor to a large GPL project from 
> objecting on moral grounds and thereby halting any 
> distribution/modification?  Though our opinions to such objections might 
> vary, I would tend to assume that software is open to such objections.

If he authorised any modification (by using the GPL) I doubt the
objection would be valid. In the worst case scenario, probably one of
the other authors would be able to replace the contested contribution.

-- 
João Miguel Neves <joao at silvaneves.org>
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