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LIBLICENSE-L  March 2016

LIBLICENSE-L March 2016

Subject:

Re: SciHub

From:

LIBLICENSE <[log in to unmask]>

Reply-To:

LibLicense-L Discussion Forum <[log in to unmask]>

Date:

Tue, 8 Mar 2016 19:01:39 -0500

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text/plain (67 lines)

From: Kevin Smith <[log in to unmask]>
Date: Tue, 8 Mar 2016 10:43:06 +0000

It seems a bit odd to drag moral rights into this discussion, which
started, way back in the misty past, about SCI-Hub and was very much
focused on the economic rights in copyright.  Still, it might be worth
a few quick points.

1.  It is not as clear as Sandy suggests that even moral rights always
imply legal recognition of a natural right. In several jurisdiction
that have enacted moral rights more fully than in the U.S., those
rights are still time-bound, usually by the same term as the economic
rights. This implies that, in these jurisdictions, moral rights are
also considered statutory rather than natural.

2.  In the context of Sci-Hub, it is unclear to me how moral rights,
usually defined as attribution and integrity, are implicated. If the
papers made available on Sci-Hub are PDF versions from the publisher
sites, with full attribution and no alterations, the moral rights may
not be infringed at all.

3.  If we somehow make this a moral rights issue, it would be the
authors, not the publishers, who would enforce those rights, since the
moral rights usually cannot be assigned.  Moral rights genuinely are
an author 's right, and one of the most troubling developments in
commercial scholarly publishing, in fact, is contracts to publish that
require authors to waive their moral rights.  Why publisher think they
need that, and how authors might resist, would be a good topic for
discussion here.

Kevin


> From: Sandy Thatcher <[log in to unmask]>
> Date: Sun, 6 Mar 2016 19:32:36 -0600
>
> Except, as Peter well knows, in European law "moral rights" are a
> fundamental part of copyright and are regarded as a form of natural
> right. So, while it is true that US law treats copyright in terms of
> economic incentives and only gives very limited recognition to moral
> rights (in relation to works of fine art), other copyright traditions
> do consider copyright as a "god-given natural right."
>
> Sandy Thatcher
>
>
>> From: "Peter B. Hirtle" <[log in to unmask]>
>> Date: Fri, 4 Mar 2016 14:37:48 +0000
>>
>> "'Copyright is not a god-given natural right.' Well, I'm not a lawyer
>> and only an amateur theologian, but I'm pretty sure that Article 1 of
>> the Constitution is quite explicit about copyright as a right."
>>
>> Wrong.  The Constitution gives Congress the authority to grant a
>> copyright to the authors of creative works, but there is nothing that
>> says that Congress has to use that power.  And indeed, historically
>> Congress has elected not to protect certain creative works.  For
>> example, sound recordings only received copyright protection in 1972,
>> architecture in 1990, and fashion still does not receive copyright
>> protection (for the sensible reason that no incentive is needed to
>> encourage creativity in fashion).
>>
>> In short, copyright is a government-created limited monopoly, and not
>> a god-given natural right.
>>
>> Peter B. Hirtle

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