> But the real trouble is that some countries don't allow an author to surrender their moral rights
Correct. This is what happened in Puerto Rico. In preparation for the Puerto Rico version of CC, the University of Puerto Rico Cyberclinic did a comparative study of moral rights across the world: http://mirrors.creativecommons.org/international/pr/moral-ri... which is pretty informative.
Well, the moral rights available to most authors are not generally Orwellian. One of them, for example, is a right which you cannot waive to say "I made that" and perhaps to coerce others into admitting that "she made that" (i.e. attribution). CC-BY already does this, as do most open-source licenses. Another is a right which you cannot waive to be able to later say, "stop using my work," as if, for example, some organization you detest, let's say NAMBLA, decided to play your music as inspirational anthems at their meetings. Crucially, if they are economically impacted by this (e.g. they place your music in a film and now your claim forces them to redo the soundtrack, recall all the copies which they've already made and distribute replacements, etc.) then they can usually demand that you pay for the costs involved.
French law goes a little further in this vein. In French law, if you paint something racy for a private collector which could perhaps damage your reputation if it went public, you can decide that the private collector is not allowed to put your painting up for public exhibitions, and they have to respect that (at least until you die). If they are going to make a ceremony of burning or defacing your work, you're also entitled to forbid them from doing so -- though I'm not sure how this applies to derivative works, it demands "respect de l'intégrité de l'oeuvre" -- respect of the integrity of the work.
Moral rights are not strictly copyrights -- they do not forbid copying. They are only incompatible with "free speech" in a subset of cases where, arguably, that speech is being used to harm the author of the work. The only peculiarity is that the author of the work is given a very wide latitude to decide what uses of their work are "harmful" to them -- but this is probably the only way to avoid massive legal complications.
> "Moral rights" in this contexts seems to be a utterly Orwellian contraption.
No more so than the right to privacy, or publicity rights in general.
> There are few more fundamental rights than the right of free speech
There's absolutely nothing effectively fundamental to free speech. Not even one country provides for unlimited and unrestrained free speech, yet most of them seem to work well enough.
> and this so called "moral rights" are utterly incompatible with free speech.
I fail to see the relation, let alone the "utter incompatibility". Not that it matters, as both are social constructs
> I fail to see the relation, let alone the "utter incompatibility".
Well in the USA flag burning is considered a form of free speech. After reading parts of the linked document from Puerto Rico it seems like I would not have legally be able to burn/destroy/deconstruct art that I have bought from an artist under all circumstances with out the artists permission. From the USA legal perspective this seems to limit free speech.
> Not that it matters, as both are social constructs
Some constructs are more effective then others at achieve specific goals, in this sense it does matter.
Your free speech in the US does not extend to the right to burn any specific flag, but to the act of burning a flag as a political expression, so this would only restrict your speech in cases where destroying a specific, unique work is important to the speech.
Maybe there are specific cases where doing so is an important message, but conversely giving you that right would give you the right to destroy the speech of others.
How is giving you that right furthering free speech?
In most jurisdictions they boil down to a right for the creator of the work to receive or deny attribution (the latter if the integrity of the work has been compromised; e.g. consider if I wrote a political manifesto and somebody decided to republish it under my name but insert statements endorsing fascism on every page with the intend of discrediting me).
This does not prevent your ability to exercise speech - it places some small limitations on how you can attribute the work, that are far less restrictive than estate rights.
Some jurisdictions extend moral right somewhat farther, but compared to estate rights the restrictions are tiny and they all apply to your ability to duplicate other peoples creative works, not your ability to exercise your own speech.
I am very curious to see why you believe moral rights impact free speech in any significant way.
I don't think your scenario is a good example of the advantage of moral rights because I couldn't carry it out under copyright either. In the US, UK, and France, copyright is life + 70 years. Republishing your work, even with inserted statements on fascism, is a violation of copyright laws, so not permitted. Note that in the UK, moral rights only extend to the length of copyright law; in France it's forever.
Don't you think that 70 years is enough time for your original views to have gotten out? I mean, I could also take the works of Darwin and insert references to young earth creationism on every page, but I don't think it would change many people's minds about Darwin's works.
I suppose I could take an obscure biography written 100 years old and change it to discredit the original author. But what impact would it have? I could as easily write a completely fake story and attribute it to the original person, and get the same effect. Do you wish to also ban historical novels?
In Dastar Corp. v. Twentieth Century Fox Film Corp, the Supreme Court decision (8-0, btw) said:
> Reading "origin" in §43(a) to require attribution of uncopyrighted materials would pose serious practical problems. Without a copyrighted work as the basepoint, the word "origin" has no discernable limits. A video of the MGM film Carmen Jones, after its copyright has expired, would presumably require attribution not just to MGM, but to Oscar Hammerstein II (who wrote the musical on which the film was based), to Georges Bizet (who wrote the opera on which the musical was based), and to Prosper Mérimée (who wrote the novel on which the opera was based). In many cases, figuring out who is in the line of "origin" would be no simple task.
It seems the same problems of attribution, and of defining the source of the material, would apply to any moral right which extends "forever."
Thus why I don't think your example helps clarify the reason for the particular moral right you mentioned.
Thanks! I read about that when it happened, which influenced my decision to use Origin of Species here. However, as it was a rebuttal attached, and not attributed to Darwin, and didn't distort or mutilate Darwin's own work, it didn't seem to fit the scenario.
Correct. This is what happened in Puerto Rico. In preparation for the Puerto Rico version of CC, the University of Puerto Rico Cyberclinic did a comparative study of moral rights across the world: http://mirrors.creativecommons.org/international/pr/moral-ri... which is pretty informative.