I see that Public Knowledge is blogging about moral rights and the CleanFlicks decision today.  Tim Schneider asked in a question to my first post on this whether stricter European copyright laws are justified out of moral rights. I’m not sure if that’s historically true, but a system that derives copyright from some moral or intrinsic right of the creator is bound to be far stricter than one that derives copyright as a type of monopoly subsidy in support of a social policy.

The language of copyright issues in the U.S. today sounds more like the a moral rights approach than the laws read. When politicians and content producers talk about Infringement as theft, they’ve transformed copyright infringement into a kind of malum in se, rather than a kind of malum prohibitum.

Thoughts?

Posted by M as Interesting Link, Copyright, Fair Use at 1:55 PM EDT

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Joe Grantz, on his blog (via Freedom to Tinker, has posted an interesting overview of the recent CleanFlicks decision. CleanFlicks, along with others, was producing less raunchy versions of popular movies that were then distributed on DVDs to home consumers. CleanFlicks purchased a legitimate DVD copy for every edited DVD they sent out in an effort to stay legit.

Congress recently provided statutory protection to companies that manufactured machines that could do this just-in-time when provided with a skip list, but did not protect companies like CleanFlicks, something the court found significant.

I thought the ruling was interesting, if only because it seems to represent the artist’s moral rights approach to copyright law, rather than the traditional U.S. utilitarian view. Moral rights, at least in civil law systems, can apparently a lot further than U.S. style copyright law. In this case, the similarity lies in an artist’s right to protect the integrity of his or her works. I’m not sure how the willingness of the directors to allow TV edits of their movies would impact this type of analysis, but that’s certainly an interesting question.

The bigger issue may be in fair use analysis. Fair use makes sense, I think, when we think about socially valuable or important uses that copyright law would, hopefully unintentionally, suppress. I guess that could be considered a type of market failure correction in copyright law, when transaction costs or unreasonable actors need to be corrected. In the case of moral rights, however, the analysis is more rawly normative that socially utilitarian. If you truly believe that an artist has an inalienable moral right to preserve the integrity of his or her works, that may be very difficult to reconcile with socially valuable uses.

Any thoughts on scholars who’ve looked into this subject?

Posted by M as Copyright, Fair Use at 12:25 PM EDT

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