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legislation
This page is under development. It highlights moral rights
regimes in Europe, North America and elsewhere.
It covers -
introduction
As noted in the Intellectual Property guide, there is
significant variation between national moral rights regimes,
including whether there is explicit moral rights protection
for all creators (the US for example essentially restricts
explicit protection to visual artists), whether rights
are inalienable and whether they are perpetual or for
a shorter duration.
There is also variation in whether courts (and the broader
community) have been receptive to rights identified in
statute law. Critics have for example commented that in
practice rights are respected in some media rather than
others, in some nations rather than others, and everywhere
are dependent on the author (or author's estate) having
both the wealth and enthusiasm to engage in litigation.
Harmonisation in the European Union has been uneven; 'Europe'
should not be regarded as monolithic and as a single jurisdiction
where moral rights are successfully invoked every day.
Most regimes feature notions of 'reasonableness' and of
industry practice, with courts for example looking to
whether an aggrieved author's peers would take offence
over an alleged breach of rights. Most emphasise damage
to the author's reputation - generally claimed as something
that can be objectively determined - rather than injury
to a particular work per se.
As a result it is unsurprising that there is little case
law regarding breaches of moral rights (particularly litigation
that resulted in substantial penalties). Introduction
of moral rights law has not resulted in a cascade of litigation.
Some observers have waspishly commented that the volume
of literature about moral rights principles and enactments
far outweighs actual recourse to that law, with artists
and their heirs either deciding that legal action is too
expensive in terms of money and time or that the author
should "just take it on the chin".
The following paragraphs highlight some features of moral
rights protection in particular countries. A more detailed
understanding of that protection can be gained through
works on statute law in the individual nations reports
of court proceedings (eg the Théberge
and Eaton cases in Canada) - some of which are
noted in the following pages - and comparative studies
such as that by Garnett & Davies.
the global framework
The Berne Convention (discussed here)
makes explicit provision for moral rights.
That provision is, however, quite broad and allows substantial
variation between jurisdictions.
Article 6 bis states that
(1)
Independently of the author's economic rights, and even
after the transfer of the said rights, the author shall
have the right to claim authorship of the work and to
object to any distortion, mutilation or other modification
of, or other derogatory action in relation to, the said
work, which would be prejudicial to his honour or reputation.
(2) The rights granted to the author in accordance with
the preceding paragraph shall, after his death, be maintained,
at least until the expiry of the economic rights, and
shall be exercisable by the persons or institutions
authorised by the legislation of the country where the
protection is claimed. However, those countries whose
legislation, at the moment of their ratification of
or accession to this Act, does not provide for the protection
after the death of the author of all the rights set
out in the preceding paragraph may provide that some
of these rights may, after his death cease to be maintained.
The
European Union has not established a Directive harmonising
the national moral rights regimes. Some states in Europe
(notably France) thus provide moral rights in perpetuity
- evident in a Paris court's 2004 award of symbolic damages
119 years after the death of Victor Hugo - whereas others
restrict protection to the author's lifetime or to the
duration of copyright
(eg life plus 70 years).
Moral rights for performers are required by the 1996 WIPO
Performances & Phonograms Treaty, reflected in
for example 2006 regulations under the UK Copyright,
Designs and Patents Act 1988.
For comparisons see Mira Sundara Rajan's 2002 Moral
Rights and Copyright Harmonisation: Prospects for an "International
Moral Right"? (PDF),
MH Rushton's 'The Moral Rights of Artists: Droit Moral
ou Droit Pécuniaire?' (22 Journal of Cultural
Economics 1, 1998), 'Authors' and Artists' Moral
Rights: A Comparative Legal & Economic Analysis' (26
Journal of Legal Studies 1, 1997) by Henry Hansmann
& Marina Santilli and other works highlighted in the
Intellectual Property guide.
Australia and New Zealand
In Australia there is explicit recognition of moral rights
under the Copyright Amendment (Moral Rights) Act 2000
(here).
The legislation protects individual creators of literary,
dramatic, musical and artistic works and makers of films.
These include painters and other visual artists, architects,
illustrators, photographers, writers, screenwriters, set
designers, film makers (eg scriptwriters, producers and
directors) and map makers. Moral rights are not attached
to sound recordings.
It offers a right of attribution (essentially
a requirement that the creator be identified when a work
is published, broadcast or exhibited) and a right of integrity,
defined according to categories of art form such as sculpture,
literature and film.
The right of integrity is the author's
right not to have the work subjected to "derogatory treatment",
ie treatment "prejudicial to the author's honour or reputation".
That includes anything resulting in a "material distortion
of, the mutilation of, or a material alteration to, the
work, or doing anything else in relation to the work,
that is prejudicial to the author's honour or reputation".
As highlighted later in this note, determining what is
prejudicial may be contentious, given the subjective nature
of 'prejudice' and 'honour'.
There is no right of withdrawal and no prohibition on
outright destruction as distinct from mutilation.
The Act emphasises notions of 'reasonableness' in disputes
about attribution and integrity. Reasonableness includes
the nature of the work, the purpose for which it is used,
the manner in which it is used, the context in which it
is used, practice in the industry in which the work is
used (including voluntary codes), and whether the work
was made in the course of employment or under contract.
Defences in disputes about attribution include difficulty
or expense in identifying the author. In relation to derogatory
treatment, questions include whether that was required
by law and if the work has two or more authors, their
views about the treatment. Remedies for an infringement
of moral rights may include an injunction, a public apology
and damages for loss. The particular loss for which damages
may be awarded is not specified and there is disagreement
about whether an artist would be able to recover damages
for "grief and distress".
The right of attribution applies to existing and future
works. It also applies to films made after the legislation
came into effect. The right to attribution does not apply
to acts or omissions before commencement of the Act but
does apply to works created before commencement. The right
to no false attribution of authorship excludes acts or
omissions before commencement but does apply to all works
created before commencement.
The right of integrity only applies to works or films
created after the legislation comes into force.
The period of protection matches existing copyright provisions,
ie the creator's life plus 70 years for works (for film,
70 years after first release). The right of integrity
ceases upon the creator's death, in line with the right
to take action for defamation,
which ceases with the death of an author or film maker.
The Australian regime is thus substantially weaker - or,
in the eyes of some advocates, more practical - than legislation
in much of Europe.
In New Zealand Part IV of the Copyright Act 1994
formally introduced moral rights (for the duration of
copyright), with the right to -
-
be identified as the author of a work;
-
object to the derogatory treatment of a work which prejudices
the honour or reputation of the author;
-
not have a work falsely attributed to the author; and
-
privacy in respect of
certain photographs and films
The
rights are waivable but cannot be assigned.
Canada
Canada's 1985 Copyright Act similarly provides for moral
rights that can be waived but cannot be assigned. Section
14 of the Act recognises moral rights as -
the
right to the integrity of the work and, in connection
with an act mentioned in section 3, the right, where
reasonable in the circumstances, to be associated with
the work as its author by name or under a pseudonym
and the right to remain anonymous.
Infringement
of moral rights is defined in Section 28 as
Any act or omission that is contrary to any of the moral
rights of the author of a work is, in the absence of
consent by the author, an infringement of the moral
rights.
In identifying the right of integrity the Copyright Act
indicates -
28.2
(1) The author’s right to the integrity of a work
is infringed only if the work is, to the prejudice of
the honour or reputation of the author,
(a) distorted, mutilated or otherwise modified; or
(b) used in association with a product, service, cause
or institution.
The
Act specifies that in the case of a painting, sculpture
or engraving the prejudice shall be deemed to have occurred
as a result of any distortion, mutilation or other modification
of the work. A change in the location of a work, the physical
means by which a work is exposed or the physical structure
containing a work, or steps taken in good faith to restore
or preserve the work
will not necessarily constitute a distortion, mutilation
or other modification.
Integrity
is accordingly violated where a work has been modified
(or used in association with a product, service, cause,
or institution) in a way that is to the prejudice of the
honour or reputation of the author.
Section 14 of the Act grants the author of a work the
right to be or not be associated with a work "where reasonable
in the circumstances" and omission of an author's name
from a work will not necessarily comprise an infringement
of moral rights.
UK
Moral rights protection in the UK is provided by moral
rights provisions in the Copyright, Designs &
Patents Act 1988. Those rights are waivable but inalienable,
with protection during the duration of copyright.
The Paternity (Attribution) Right is the right to be credited
as the author of a work. The author of a copyright work
must assert authorship in writing in order to exercise
the right of paternity, something that is often done at
contractual level and in the case of published texts is
reflected in a formal assertion that appears in the preliminary
pages of the work.
The Integrity Right is the author's right to object to derogatory
treatment of the work, including modification of a copyright
work by any addition, deletion, alteration or adaptation
that distorts the work or affects the honour or reputation
of the author. It does not include a right to prevent
destruction of the work.
Exclusions encompass artwork that is part of a collage
or film (not the main image), a design for a product or
package, made available for the specific purpose of illustrating
a magazine or newspaper, or is computer-generated.
The Performances (Moral Rights, etc.) Regulations
2006 cover performers and persons having recording
rights. They reflect the WIPO Performances & Phonograms
Treaty, providing a right to be identified and a right
to object to derogatory treatment of the performance).
France,
Italy, Spain
French law provides for inalienable and perpetual moral
rights (any renunciation is null), with the author has
a right of "respect of his name, 'his quality' ('de
sa qualite') and his work". That respect is typically
held to encompass several rights, as follows.
The right of paternity (droit a la paternite) provides
that publication of a work without mention of the author's
name constitutes an infringment, subject to that author
having a right to publish anonymously or pseudonymously
(with an editor being held in 1980 to have infringed the
author's right of paternity by revealing his name).The
inalienability of the right of paternity means that the
author can always reveal her identity, even if notionally
restricted contractual clauses for anonymous publication.
The right of respect of the work (droit au respect de
l'oeuvre) restricts modifications without the author's
consent (including for example posthumous written publication
of a course that author Roland Barthes while alive had
deliberately delivered only in an oral form). Adaptations
do not necessarily constitute an infringment, with courts
having discretion in deciding whether an arranger has
respected l'esprit general of the work.
The right of 'divulgance' (droit de divulgation) gives
the author has the exclusive right to 'divulge' the work,
with courts as early as 1845 holding that the author is
the "only judge of the opportunity to publish his
work", that unauthorised exposure of unfinished paintings
is an infringement of the right of divulgence (eg a decision
in 1965 regarding Georges Rouault) and that reconstruction
by another party of a work destroyed by the author is
an infringement.
Authors have the right to 'repent' or withdraw work that
has been assigned to a licensee (droit de repentir ou
de retrait), albeit with compensation to that assignee
for any damages caused by the withdrawal.
Law in Spain, modelled on that of France, provides authors
with inalienable rights of divulgation and withdrawal,
attribution (including name, pseudonym and anonymity),
'integrity and reputation', restrictions on modification
of the work and 'access to a unique exemplar'.
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