Free software Germany GPL
eda-qa at disemia.com
Wed Jul 2 14:55:58 UTC 2003
Onno Timmerman wrote:
> And if so what legal work should be done to make it legal. If somebody
> knows if any resaerch has be done in Belgium I would welcome it and try
> to get a new law in act that make GPL very wel protected.
It appears that in the music scene the law would already create
precedent allowing the GPL style contract. In particular, we had to
deal with GEMA to release a new CD, and we learned a few things about
their contracts with their members that *may* be at odds with some
points of this legal analysis (I'm working from the translation bits
since I can't read German well enough).
With a GEMA member contract you assign exclusive rights to your creative
works to GEMA. The terms of these rights are very clear, and although
GEMA has found itself in court a few times in this regards, the general
system seems to stand.
Point 1: The article suggests you may only assign "use rights" to those
uses of the work that are presently known. GEMA has recently enacted
new guidelines and regulations dictating the use of their member's
repetoire on the Internet. If this limitation of "present uses" is
correct, then I would assume GEMA would need to get an contract
extensions from every member authorizing it.
Point 2: The article mentions you cannot assign copyrights, this is the
case in other countries as well (Canada as example). In the GEMA
contract you don't assign any of these rights, you assign the right to
royalty collection (which is an alienable right). Under the GPL you are
also not assigning any copyrights, you are assigning a distribution
right mainly (which is still alienable in Germany). Perhaps the wording
could be clarified in the GPL towards alienable/inalienable rights and
exactly what is being consented to. I do assume however that if GEMA is
able to get away with blanket exclusive rights assignments in the
situation of commerical exploitation, then the GPL should be able to
assert similar conditions.
Point 3: Contributory liability. CD Audio Carriers are effectively
derivative works from musicians recordings, which are derivative works
of the composers/lyricists. If a record label put a protection device
on the CD that harmed your player/computer, it seems hard to believe
that the original composers, or even musicians, could somehow be liable
for this damage (this even in a case where the entire chain of
contribution involved financial gain, whereas in the GPL it probably
These two points should be a starting reference for more research (of
which I can't do since my German doesn't allow me to get any further).
The parallel to GEMA is quite important though, since the restricted
distribution of music is made by the same means as the restriction of
software distribution: copyright laws.
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