| Who we are | Organizations | Get Involved! | Helpdesk |
| Weblog | About FLORA | Server project | F.A.Q. |
|
|
|||||||
| ||||||||
Election 2006 (and beyond): Digital Copyright Canada
From: Russell McOrmond <russell_-at-_flora.ca>
To: flora-admin-help_-at-_flora.org
Date: Sun, 1 Jun 2003 21:26:03 -0400 (EDT)
On Sat, 31 May 2003, Adam H. Kerman wrote:
> What did I mistate? Ms. Dickson's work was republished. No, I don't
> think that the people who republished it were justified in doing so,
> even though they were allowed to do it.
You said that the copyright agreement that I have suggested would have
disallowed Ms. Dickson to do as she did and demand that she get credit.
Nothing in the agreement that I have suggested (and is now in draft form
at http://www.flora.org/flora/legal.shtml ), if it applied to her site at
all (see below), would have disallowed Ms. Dickson to sue to shut down
the site if she so chose to do so, or wanted to.
> Her situation is an example of negative consequences of the rules you
> propose for publishing on Flora.
This is your legal opinion. It is not mine. We disagree on the
interpretation of the law.
If you had a legal opinion from a Canadian lawyer that disagreed with my
interpretation, I would be very appreciated to receive it. In the absence
of such a contradictory legal opinion we are left in a situation where we
must agree to disagree, and you can decide for yourself what that will
mean for your interaction (if any) with FLORA.org.
> All she received, after a complaint, was a half- hearted attribution
> that implied that she did the work on someone else's behalf.
This is all she asked for at this point. If she demanded that they shut
down the site as not having been authorized by her, then that is still
available to her.
Please note that in this situation this is not an archive of a series of
submissions to a FLORA.org mailing list, so the FLORA.org mailing list
copyright license would simply not apply.
If we take the Ask-A-Doctor site that was created by the same person
<http://www.flora.org/ask-doctor/> with a similar intent then it would
apply:
a) This is a website that is an archive of a mailing list that was also
gated to a newsgroup
http://groups.google.com/groups?group=flora.ask-doctor
b) In order for such a group to even exist and function, an (until now
unwritten) understanding had to exist that FLORA.org was allowed to
redistribute all those messages for free. There also needed to be an
implied protection (from the author, in this case) of third parties
who may have web-based or other news readers reading these groups.
In the extremely unlikely situation that Rosaleen wanted to sue me (and
this is hypothetical in the extreme as she is simply not that type of
person), these Terms and Conditions will protect me. Right now I am
vulnerable, although in the case of Rosaleen I am not worried at all.
When it comes to the unknown authors who make submissions to other
mailing lists, I have no reason to be so trusting. Many of these lists
are very open mailing lists with people from many countries, not all of
which have the best interests of FLORA.org (or myself as sponsor) at
heart.
> No, I don't think she suffered economic harm recoverable under copyright
> law (if she retained rights), but she suffered an injustice.
We agree here. Where we disagree is that the proposed terms and
conditions negatively affect (or even relate to) this situation.
> What if some of her answers were changed slightly? What if the derived
> Web site made it appear as if she insulted some of the people asking
> questions, or if the advice given, if followed, would result in harm to
> the questioner? Would you not then agree that that was an injustice?
>
> She'd have no recourse as Flora rules allow derivation.
This is not the case.
Again to the ask-a-doctor site as a real example:
If a third party (other than Rosaleen and her group, or myself as host
of FLORA.org) posted a derivative without our permission (Rosaleen or
myself), then the license agreement would not apply and Rosaleen could sue
them.
Rosaleen may need to consult with me to find out if I would invoke the
"may assign its rights" clause to protect a third party legitimately
redistributing those messages (Such as NCF.ca, Google Groups, etc), but
this should be no surprise.
Rosaleen, as a condition of using the $Free$ FLORA.org services, has to
trust me that I am not going to change the archives in the way you
describe. She is not legally protected against me making changes (other
than those that would affect moral rights), nor do I believe she should
be. As a condition of me offering these $free$ services people have to
agree to have some level of trust of me.
> You'll counter, "That's covered by moral rights."
Which is of course true.
> Maybe, just maybe, she'd have recourse if the violator published the derived
> work in Canada.
First, the only alleged 'violator' that the license agreement applies to
is me. The copyright license agreement does not grant those rights to
third parties, just myself as host of FLORA.org.
I exist as a Canadian citizen. Even if I hired a server outside of
Canada, I still have to adhere to Canadian law. If I wish to act as an
international criminal and get away with it, I must become a multinational
corporation (woops -- guess I'm getting too political here.. ;-)
> But outside of Canada? If published on the Web on a server outside of
> Canada, it could still be seen by Canadians. The international nature of
> the Web prevents practical protection.
Please remember who you are talking about protecting yourself from: me.
The copyright license grants FLORA.org (me) "a royalty-free, perpetual,
irrevocable, worldwide nonexclusive license to use, reproduce, create
derivative works from, modify, publish, edit, translate, distribute,
perform, and display the communication or content in any media or medium,
or any form, format or forum now known or hereafter developed".
Part of why I have been offended by this thread is that it seems to be
forgotten that when people talk about infringers and needing protection
from these infringers, that it is *me* that is being accusing of this
infringement.
> Even if the work were derived from and not misused, there's still no
> practical protection from lack of attribution if published outside
> Canada.
Canada is not the only country that honours Moral Rights. In fact,
Creators' Moral Rights is even mentioned in the United Nations Declaration
of Human Rights:
http://www.un.org/Overview/rights.html
Article 27(2): Everyone has the right to the protection of the moral
and material interests resulting from any scientific, literary or
artistic production of which he is the author.
What constitutes a material interest is the subject of much public
policy debate throughout the world, but the United States is one of the
very few countries that have outright opposed to any protection of moral
rights. As has become common with a number of international legal issues,
the United States even ignores parts of treaties such as the Berne
Convention for the Protection of Literary and Artistic Works which
included a limited level of protection for moral rights.
Meetings outside of the USA discussing Creators' Rights almost sound
like a meeting of the anti-Globalization movement given the level of
disagreement of actual creators and the United States government which
tends to only protect the mega-merging-media-monopoly intermediaries --
against both citizens' rights and creators' rights.
( Don't even get me started on the proposed changes to the FCC rules on
media ownership! http://www.flora.org/mai/forum/42991 )
If those reading this that are US Citizens want to help fix this
situation, then they are advises to join groups such as the Creators
Federation http://www.creatorsfederation.org/ which is the US Counterpart
to the Canadian Creators' Rights Alliance. I recently attended the public
part of the CRA's AGM (I am not currently a member) and was able to listen
to Jonathan Tasini which is the CF's president. I was very impressed with
the work they are doing.
Notes from the AGM are at: http://www.digital-copyright.ca/discuss/1888
> I haven't cared for the way you've brushed off all my objections as
> "that's commercial; not Flora's intent to publish commercial works."
> You've been very dismissive of the very reasonable concerns I have.
This quite uncomfortable feeling is mutual. I haven't cared for the way
you appear to have dismissed all my years of hosting FLORA.org services
for free, and dismissed my legal interpretation.
> There are perfectly valid reasons why an author should retain some
> measure of control of his works that have nothing to do with any
> commercial value.
You have yet to explain a legal interpretation I can agree with of what
was proposed that related to your concern.
> Nothing written by a Pednet subscriber and posted to the list has ever
> been of a commercial nature. That doesn't translate into there are no
> circumstances in which their work could be used to bad intent and that
> they should enjoy no protection, even if extremely limited.
Nothing in the Terms and Conditions that were proposed, and are now in
draft, negatively affect the Pednet list subscribers in relation to
non-commercial concerns. The license agreement disallows them from suing
me for freely publishing their articles in various forms, which should
have been an entirely understood and expected part of using the $Free$
FLORA.org services.
---
Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
Governance software that controls ICT, automates government policy, or
electronically counts votes, shouldn't be bought any more than
politicians should be bought. -- http://www.flora.ca/russell/
| Please read the FLORA.org Terms and Conditions before you submit information to FLORA.org | |
Join the Blue Ribbon Online Free Speech Campaign(USA) (Canada) |
 FLORA Community Web
(FLORA.ORG) is sponsored by FLORA
Community Consulting (FLORA.CA).
|