IP Issues Paper 42 – Moral Rights

IP Issues Paper 42 – Moral Rights

Introductory notes

As an individual are very sympathetic towards the moral rights of attribution and against false attribution.  That said, from a policy perspective it may not be appropriate to have broad based rights to prevent false attribution or to require attribution in relation to copyrighted works. I refer in this respect to the experience of the open source community in relation to the licence known as the “BSD” licence. This licence, originally propagated by the University of Berkeley in its initial forms required that attribution be given to the original authors of the work. However, as time went by others participated in the development of the work and also sought to have attribution of their contributions recognised. Over time the community of participants using software licensed under the BSD license came to the conclusion that compliance with this attribution requirement was not justified. While they did not object to the principal of attribution per se, as a matter of practice the attribution requirement was more harmful then beneficial on balance. As a result that community lobbied the University of Berkeley and secured a change to the licence conditions removing the attribution requirement. Whether the “reasonableness” qualification  on the attribution requirement is sufficient in practice is an open question. There ought to be broad-based exceptions are to these rights sufficient to permit the emergence of a broad-based aftermarket. The right of integrity is inconsistent with an author placing the work in the public sphere.  There should be a general exception to the right of integrity where the work in question has been made publicly available.

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