On 4/3/06, Steven Jamar <stevenjamar[_at_]gmail.com> wrote:
> 1. fair use is not explicitly based on freedom of speech; it has its own
> logic and history other than freedom of speech
Perhaps initially, but the SC has blessed it as embodying enough First Amendment principles that it doesn't think it needs to consider any further issues in First Am. challenges to particular practices of copyright holders.
> 2. author control over how others treat their works is not censorship. I
> should be able to make the movie or write the book or paint the painting I
> want without being required to let others mutilate it. They can go create
> their own works in response if they so desire.
This is far too simplistic. The use of pre-existing work for satire, criticism, parody, and condemnation of the author, the culture, the whatever, and the occasional destruction of (hopefully) copies of a work, are all legitimated under "modern" principles of free speech, yet a robust moral rights regime would hold them invalid. Even presentation of work in a context the author finds misleading can run afoul of moral rights, as when DeChirico sued the Venice Biennale for displaying his early works that he no longer liked (artists are notoriously bad judges of the worth of their own work). While I support moral rights as a deterrent to pure vandalism, especially when directed at original works (Clement Greenberg's "improvements" on Alexander Calder stabiles come to mind), there has to be ample room for criticism--let the doggone Tilted Arc be removed if people don't like it--that does not let the artist manipulate public perception of his/her work.
> 3. the US version of freedom of speech is not the only valid, viable, proper
> approach to freedom of speech. it may not even be the best one world wide.
> it generally works pretty well in the US.
A chacun son gout, but the US version is the most favorable to actual free speech. If you like robust protection for speech, then the US version is the one that goes farthest in protecting it. If you think other considerations should trump free speech more, like group identify, hurt feelings, "raisons d'etat" and so forth, then yes, the US model is sub-optimal.
> 4. Voltaire was French -- last I looked, that was in Europe.
Moral rights doctrine developed in France, but long after Voltaire's time. It was a byproduct of the Romantic movement that held up the artist as a prophet rather than a craftsman, and while some degree of protection is warranted, it should not be pressed so far that it overpowers other socially desirable policies. To its credit, sort of, in actual cases France tends to compromise moral rights against other things. It's a rare example of an essentially common-law approach in continental Europe.
-- Vance R. Koven Boston, MA USA vrkoven[_at_]world.std.comReceived on Thu Apr 06 2006 - 08:30:00 GMT
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