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Re: Gentoo Linux copyright / CDDL question

From: Alexander Terekhov
Subject: Re: Gentoo Linux copyright / CDDL question
Date: Fri, 20 Oct 2006 16:45:49 +0200

Drazen Kacar wrote:
> Irish copyright law gives such moral rights to individuals, the said 
> rights are not transferable and there's no way to give them up, as 
> far as Irish law is concerned.

"Moral rights may be waived, but a waiver must be in writing."

Ireland aside for a moment, see also

If there is a general set of rules that has emerged from the case law in
France and Germany, it is (i) that authors cannot legally relinquish or 
abandon the rights of attribution and integrity altogether, (ii) that 
advance blanket waivers are unenforceable, and (iii) that narrowly 
tailored waivers that involve reasonably foreseeable encroachments on 
the author’s moral rights are generally valid.139 In the context of the 
right of integrity, this essentially means that courts are inclined to 
side with the author if the other party to the contract distorts140 the 
work then attempts to invoke a generic waiver provision in its defense.141 

Conversely, the courts tend to rule against authors if the authors 
approve specific modifications either before or after the fact and then 
try to rely on their inalienable moral rights to reverse their previous 
decision to the detriment of the other party to the contract.142 Regarding 
the right of attribution, the common denominator is that authors always 
preserve their right to disclose the fact of their authorship, even if they 
previously agreed to publish their work anonymously or under a pseudonym.143 

Whether such disclosure makes the author liable for breach of contract is a 
different question, which is decided on a case-by-case basis.144 Yet another 
question is whether authors who contractually waive their moral right of 
attribution can later change their minds and demand attribution.145 The 
general trend in France and Germany146 is to recognize these waivers as 
valid,147 but also to allow authors to unilaterally revoke them for the 
future,148 at least after the passing of a certain time period.149 


What distinguishes the British system from the French, German, and Italian
moral rights regimes is that the rights of attribution and integrity come
with a host of substantive limitations and exceptions that reduce the scope
of their application to the point where statutory moral rights become 
largely symbolic. Aside from a number of restrictions on remedies,284 for 
example, the rights of attribution and integrity do not apply to computer 
programs, to works made for hire, to works published in periodicals, or to 
collective works of reference,285 and authors of musical works need not be 
named when the work is publicly performed.286 Moreover, it is doubtful 
whether the right of attribution includes a right of anonymity,287 and the 
CDPA specifically states that the right of attribution is not infringed 
unless previously asserted in a written instrument, with the exception of 
the public exhibition of artistic works, in which case affixing the 
author’s name to a copy of the work is sufficient.288 With respect to the 
right of integrity, the statutory definition of “derogatory treatment” 
explicitly excludes translations of literary or dramatic works, as well as 
arrangements or transcriptions of musical works involving no more than a 
change of key or register,289 and it is questionable whether the
right of integrity covers contextual modifications in addition to actual

Aside from the issue of scope, the most important feature of statutory 
moral rights law in the United Kingdom is its exceptionally generous waiver 
regime.291 The CDPA allows authors and directors to validly consent to any
act that violates their moral rights.292


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