Harmonising the Unharmonisable
Here's the harmonisation problem in a nutshell...
a) Although people talk a lot about the split between copyright and author's right, the real problem for harmonisation is inside the author's right system.
b) Some countries (France and those following) have a 'dualist' system - this splits economic (property) rights in works, etc. from moral (personal) rights that relate to works (i.e. the right to be identified as author, etc.).
c) Other countries (Germany and those following) have a 'monist' tradition - this fuses the property and personal rights, thereby creating deep differences from both copyright *and* dualist author's right - for example, under German law, outright assignment (transfer of title) of rights in a work is not possible. It makes life very difficult from an economic perspective and is cumbersome from a practical business perspective (kudlgy workarounds with publishing contract terms - some mandated by law - exist).
d) Since there is no way of 'squaring the circle', one of these models will have to be abandoned for harmonisation to occur. On economic/business grounds, it should be the monist system but can you really imagine Germany giving up on a tradition as hallowed in legal terms as the 'Beer Laws' in food terms? But, equally, can you imagine the French or the British giving up on their traditions?
Biting the hand that feeds IT
