ARTS & FARCES internet

Imagine if the U.S. government could magically attach its own cross-references at will to every book, magazine, and other document published in this country as well as every other country. And did. The citizenry would rightfully revolt; it simply wouldn’t be tolerated. But when a large, multi-national corporation proposes the same thing, there’s a deafening roar of “tsk, tsk” but little more.

Here’s the bad news for Microsoft: their SmartTags technology, applied to the web would likely be illegal in most countries outside of the United States.

Here’s the bad news for us: Microsoft’s SmartTags would likely be completely legal inside the United States, when applied to content that originates within the country’s borders.

Why? Something called moral rights. Most civilized countries recognize them; but the United States doesn’t.

Moral rights are a package of intellectual property rights granted to the original creator of a work, and include:

• The right of integrity;
• The right of attribution;
• The right of disclosure;
• The right to withdraw or retract;
• The right to reply to criticism.

These moral rights are separate from the economic copyright that these days generally transfers from an author to a publisher and they can survive the author. The idea originated with the French, who believe that any creative work, by definition, includes the personality and character of the author. Where copyright is a property right that can be transferred, moral rights are part of the author’s personality and character and non-transferable.

The first two moral rights—the right of integrity and the right of attribution—are especially important because they are codified as international law in the Berne Convention. The United States claims its intellectual property law complies with the Berne Convention, but this is just two instances where it doesn’t.

The most important of these rights is the first, the right of integrity. Basically it prohibits an author’s work from being distorted in any way that would harm the author’s reputation and dates to the 1957 French law of “droit au respect de l’oeuvre.” It’s a safe bet that a cross-reference over which the author had no control would be seen as a distortion of the work.

I’ve had more than a few arguments (and a couple knock-down-drag-out-fights) with publishers over these rights, and believe me when I tell you that these rights are not recognized in the United States. The U.S. courts have held that if an author wants these rights they should be covered in the Publication Agreement. If you’ve ever seen a standard Publication Agreement, you know that there’s little chance of any such rights being acknowledged, let alone granted.

Some would argue that the subject of a negative article on the web that was cross-referenced to sites with an opposing view would be legal under the fifth moral right, the right to reply to criticism. This moral right states that an author has the right to respond to criticism in the same place as the critical expression and originates from the French concept of “droit de retrait ou de repentir.” Those that argue this position would have a difficult time proving that the subject of the article was the author, but I suppose anything can happen. The concept is more appropriately illustrated by Justice Brandeis’ argument that the appropriate remedy is more speech.

Once again, we’re confronted with the proposition that all American law is based on enhancing or preserving corporations.

So, what can be done?

It’s foolish to think that the United States is going to be brought into compliance with the Berne Convention in our lifetimes. Remember: all American laws are based on enhancing or preserving corporations. Nowhere is this more clear just now than the scuffles over intellectual property rights.

Even with rumors of Microsoft’s responding to pressure from the web authoring community, more forceful steps are necessary to communicate our concerns to Microsoft and others. Why did Microsoft not research this issue carefully beforehand? A lot of us have spent a maddening few days stewing and scrambling to address the situation.

I like the “Microsoft Free Fridays” approach proposed by Dave Winer that blocks access to our sites on Fridays by Microsoft browsers. Does anyone have a code snippet for Zope and Squishdot to implement this?