On 9/16/07, dlw <danw6144 insightbb.com> wrote:
> 17 USC § 106
> Subject to sections 107 through 122, the <OWNER>
of copyright under this
> title has the <EXCLUSIVE> rights to do and to
authorize any of the
> following: . . .
>
> 17 USC § 101
> A "transfer of copyright ownership" is an
assignment, mortgage,
> exclusive license, or any other conveyance, alienation,
or hypothecation
> of a copyright or of any of the exclusive rights
comprised in a
> copyright, whether or not it is limited in time or
place of effect, <NOT
> INCLUDING> a nonexclusive license.
>
> If your don't <OWN> the copyright you
<CAN'T> license a work (§ 106).
> A nonexclusive licensee can't receive any <OWNERSHIP
RIGHTS> (§ 101).
> So what is a "sublicense"? You can't license
what you don't own.
Thanks for this clear legal reference (I think you can find
the same
argument within the International Convention of Bern, and
any other national
law implementing it).
Note that exclusive rights include the moral rights (that
exist for authors
residing in some countries under Civil Code instead of
Common Law) : in some
countries, they are not even transferable (and remain
exclusive for the
lifetime of the author), so they are automatically excluded
from any
licences, including after transfer of copyright (the
copyright does not
cover the moral rights anyway).
This also means that they are also excluded from
sublicencing, but also that
the required attribution is even better protected legally
than the copyright
itself : even if the copyright is transferred, the law
mandates the
preservation of author names in the modified copyright
notice.
Other exclusive rights (and obligation) that are not
transferable (and
excluded from the copyright protection and every licencing
scheme) also
include the legal responsibility of authors for some damage
they could cause
to others when making the covered work accessible to the
public through his
publication (so for example, an author remains legally
liable in his country
of residence if he publishes a covered work in any place in
any combination
that is forbidden in the laws of his country of residence,
like: apology of
Nazism or nationally recognized crimes against humanity, or
public calls for
violence, murders, other crimes, or terrorism against
physical persons or
legally protected institutions, or some national defence
secrets of his
country of residence).
This mandatory legal prohibition, which can be very broad
means that, to
protect the authors themselves, they need to publish their
names, and names
can't be changed (this means that publishing works into the
public domain
can then become legally prohibited during the life of
authors themselves,
because public domain is not a licence but does not allow
protecting authors
for forbidden uses for which an author may be legally liable
in his country,
as this type of publication would be an illegal attempt by
an author to
escape his own legal and mandatory responsibility and
liability).
|