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From Geir Magnusson Jr <g...@pobox.com>
Subject Re: CLA issues Was: java.sql.*
Date Mon, 13 Feb 2006 12:24:03 GMT
I think the best thing to do here is consult a German lawyer, or some 
legal resource that has a clue about open source licensing.  We aren't 
going to be able to answer any of this here in a definitive way.

I will again note that for contributions made here, at the ASF, we do 
not ask for copyright transfer, but simply a license to the work.  (That 
you have agreed to.)

I would further argue that if the author must retain right to revoke the 
license or have control over derivative works, then open source is 
impossible in Germany.

Given that there is plenty of open-source activity in Germany - and 
serious efforts - I think that we're misunderstanding something 
fundamental about German copyright law.


Tor-Einar Jarnbjo wrote:
> Leo Simons wrote:
>> I'll also request everyone tries to ensure that you do not try and
>> represent anything as legal "fact" unless its been thoroughly verified 
>> that
>> it is indeed rather certain that what is being said is undisputable. 
>> Also,
>> always try and provide as much references as possible.
> The problem "root" lies back in the times when the first laws where 
> written to protect intellectual property. In UK, copyright laws were 
> written, which originally only regulated reproduction and publishing 
> rights, while in France the laws were centered around the "droite 
> d'auteur" or author's right. Later, copyright laws were only adopted in 
> the countries most strongly influenced by the UK, e.g. USA and probably 
> Canada, while most other countries adopted the French idea of generally 
> protecting the author as a "static" owner of his intellecutal property. 
> In Germany, the author's rights are so strong, that they even to some 
> extend apply for works produced by an employee or as part of a paid 
> assignment.
> The issues I'm pointing out are regulated like this in the German 
> "Gesetz über Urheberrecht und verwandte Schutzrechte" ("Law on author's 
> rights and related protective rights"):
> §29(1):  Das Urheberrecht ist nicht übertragbar, es sei denn, es wird in 
> Erfüllung einer Verfügung von Todes wegen oder an Miterben im Wege der 
> Erbauseinandersetzung übertragen.
> The author's right is not transferable, unless it is transfered to an 
> inheritor in connection with the author's death.
> §§ 41 and 42 are regulating the author's "Rückrufsrecht" or "revokation 
> right". §41 is regulating the case, in which an exclusive usage right is 
> not being practised, while §42 is regulating the author's right to 
> revoke a usage right, in case of "gewandelter Überzeugung", however that 
> is to be translated properly to English. "Modified/changed belief or 
> conviction" is a brave attempt. §42(2) regulates that the author's right 
> to exercise his revokation right can not be excepted.
> §34 regulates the transfer of usage rights and sublicensing 
> ("Übertragung von Nutzungsrechten"). Any such transfer must be agreed 
> upon by the author, although it is restricted in which cases he may deny 
> such transfer to take place. At least the way I interpret these 
> regulations, it is not possible for the author to agree to a blanket 
> sublicensing grant, as his rights depends on the exact conditions around 
> the license transfer.
> Regulations on derivative works are spread across several paragraphs 
> (§§14, 23, 39, etc). As in the issue with §42, derivative works may not 
> be produced or published if they are against the author's belief (which 
> may change with time).
> Tor

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