Moral Rights

25 May 2019

In PG’s experience, most authors in the U.S. aren’t familiar with moral rights. In part, this is because the federal government did not do much about moral rights until 1989.

When the country joined the Berne Convention in 1989, it amended its Copyright Act to include moral rights. However, while the moral rights set out in Berne are intended to apply to all types of copyright-protected works, the U.S. took a narrower interpretation of the moral rights requirements, stipulating that the Convention’s “moral rights” provisions were addressed sufficiently by other statutes, such as laws covering slander and libel. Some international copyright experts contend that the U.S. is not, in fact, complying with its Berne obligations.

Some state legislatures have enacted state moral rights laws, but there is more than a little doubt about whether such laws can be enforced because federal IP laws preempt state IP legislation.

However, in the ever-so-slow manner in which intellectual property laws are changed in the United States, moral rights may be on the path to more structured protection.

From a recently-released study of moral rights by the U.S. Register of Copyrights (footnotes omitted):

Taken from the French phrase droit moral, the term “moral rights” generally refers to
certain non-economic rights that are considered personal to an author. Central to the idea of
moral rights is the idea that a creative work, such as a song or book, actually expresses the
personality of the author.

Society has long recognized the importance of such a bond between a creative work and its author: as far back as the early 1500s, courts in France recognized that only the author has a right to publish their work. Over the course of the last two centuries, countries have increasingly codified this close connection between the author and their work, first through judicial doctrines and limited statutory protections for certain aspects of moral rights, such as a right of first publication, and later through formalized statutory moral rights schemes. While countries have come to recognize a variety of different moral rights, the two most commonly recognized moral rights are the right of an author to be credited as the author of their work (the right of attribution), and the right of an author to prevent prejudicial distortions of their work (the right of integrity), both of which were codified at the international level in the 1928 Rome revision of the Berne Convention.It was not until 1989, however, that the United States became subject to an obligation to provide moral rights protections for authors by joining the Berne Convention.

. . . .

[T]he growth of the internet as the primary locus for buying, selling, and licensing works of authorship has meant that original works in digital form have become more accessible to more people. On the one hand, this has meant that the attribution and integrity of works have been more susceptible to mishandling and manipulation. For example, the metadata containing attribution and other information for creative works is very simple to remove (or “strip”) or replace with erroneous information. A work stripped of proper identifying information then can be disseminated widely to the detriment of both the author’s reputation and ability to profit from the work. Similarly, the increasingly accessible video editing technology behind “deepfake” software can not only fundamentally alter the content of an author’s work, but can also lead to social and moral harm for the artists and the subject of the video through malicious use. On the other hand, digital technologies such as fingerprinting and visual recognition software that allow photographers to identify and track metadata related to their works on the internet have enabled authors to combat some of these threats to their attribution and integrity interests. Whether considered as a useful tool or a threat to protection of integrity and attribution interests, there is no question that technology has transformed the moral rights landscape in the United States.

As the foregoing indicates, there is a significant amount of variation in how moral rights are recognized around the world, as well as the manner in which they are protected. For example, in addition to the rights of attribution and integrity, other countries have recognized a number of additional moral rights, some of which are counterparts to economic rights, including:

  • the right of withdrawal, or droit de repentir, which allows authors to retract works from public circulation that they feel no longer represent them or their views;
  • the right of divulgation, through which an author can control the public disclosure of their work, and which supports the economic right of first publication;
  • the right of the author to have access to the original copy of a work in order to “exercise his author’s rights”;
  • the right to prevent others from associating one’s work with an undesirable “product, service, cause or institution”;
  • the right to pseudonymity; and
  • the right of an author to compel the completion of a commissioned work of art.

Additionally, not all countries protect the rights of attribution and integrity in the same manner, and many countries have laws protecting discrete aspects of those rights using different terminology. As many scholars have noted, civil law and common law countries historically took different approaches to the protection of authors’ moral rights: while many civil law countries conceived of moral rights as separate and distinct from an author’s economic rights, common law countries tended to conceive of moral rights as part and parcel of the general copyright protections afforded to an author. Although the Berne Convention largely adopted the civil law approach, conceptualizing moral rights as separate from economic rights, member states have wide discretion in how they chose to implement the moral rights protections of Article 6. For this reason, the contours of the rights of attribution and integrity look quite different, depending upon the country.

One area in which there is significant variance among countries is in how they approach the concepts of waivability and alienability of moral rights. While moral rights are often described as “inalienable,” “nonwaivable,” or in other terms that express the inherent relationship between author and work, moral rights are in fact often waivable and sometimes also alienable under many countries’ moral rights schemes. In some countries like Canada, waivability is explicitly spelled out in the statute. Elsewhere, it is inferred by the ability of authors to authorize certain uses of their works, such as in Nigeria, Germany, France, China, and Switzerland. This ability to waive moral rights is generally tempered by limits designed to protect authors from unwittingly or unwillingly waiving their rights.

Another area of variation in international approaches to moral rights has to do with how the country’s laws treat situations where a work is “authored” by a corporation or has many “authors” that all contribute a small piece to a larger whole  In some countries that have adopted copyright ownership rules similar to the work-for-hire doctrine in the United States, corporations are allowed to hold and assert moral rights in such works. For example, South Korea, Japan, and China all designate employers as the default legal author of works created by employees, including for some moral rights purposes, although they allow the parties to contract around this default.  Indian courts have also recognized moral rights for corporations. In contrast, under both Swiss and French law, moral rights can attach only to natural authors and not corporate entities; employees may maintain or waive their rights, but employing companies cannot hold them. Several countries, including France and Israel, require that moral rights remain with the natural author even when the law or a contract transfers economic rights away. Countries have also adopted different approaches regarding how to address potential conflicts that may arise resulting from the grant of moral rights to different contributors. For example, Guatemalan authors contributing to newspapers do not have control of their contributions when combined in a newspaper, but they do have rights in their works when those works stand alone.

The question of moral rights protection for multi-author works has been particularly acute in the area of audiovisual works. Some countries have adopted special rules for moral rights in these works, attempting to balance the interests of the producer, the director, individual performers, and the authors of incorporated works such as musical scores. For example, while China recognizes motion pictures as collaborative works with several individual authors, the various authors are only granted the right of authorship while all other copyrights belong to the producer.  While Guatemala grants moral rights to the producer (who is also holder of the economic rights), this right includes mandatory attribution for the director, the script author, the author of any underlying work, and the authors of the musical compositions in the audiovisual work. In Nigeria, which also grants moral rights to the producer, the law is designed to encourage performers and others involved in films to execute contracts with the producer in order to preserve any of their rights. Performers in audiovisual works in France are considered employees, and thus their rights of attribution and integrity are governed not only by the moral rights regime, but also by employment law regulations and collective bargaining agreements. In Germany, although moral rights attach to both filmmakers and performers, a rightsholder may only prohibit gross distortions of their work and their interests must be balanced with the legitimate interests of the other film creators and the producer.

Link to the rest at Copyright.gov

PG says if you have gotten this far, you know more about moral rights than 99.99% of the authors in the United States. He cannot confidently provide any sort of estimate for authors outside of the United States.

Copyright/Intellectual Property, Legal Stuff, Non-US

8 Comments to “Moral Rights”

  1. Felix J. Torres

    So far, most of the stories I’ve seen about moral rights are about them being used as shakedown tools used to extort after-sale money. I don’t think it helps any industry when a sale isn’t quite a sale.

  2. How does “the right of withdrawal” fit in with the whole idea of selling someone a licence to publish a work for as long as it’s in copyright? Could an author or their descendants claim a right to withdraw a work that has fallen into the public domain?

    • Felix J. Torres

      In the US there is a limited right to terminate a publishing contract after 35 years but it requires jumping through tight hoops.

      https://dearauthor.com/features/reclaiming-your-copyright-after-thirty-five-years/

      The purpose of Section 203 is to provide authors a natural reversion of rights so that they get a second bite at the bargaining apple. It allows any author, or a person assigned by the author, to terminate the original grant during a five year period beginning 35 years after the publication was made or 40 years after the grant of rights, whichever comes first.

      “The key difference between Section 203 and section 304 is who has the right to terminate the grant of copyright. Section 203 applies only to contracts signed by authors and only the author and the author’s assignee via a will or other document would have the right to exercise the termination provision.”

      A lot more at Dear Author.

  3. While countries have come to recognize a variety of different moral rights, the two most commonly recognized moral rights are the right of an author to be credited as the author of their work (the right of attribution), and the right of an author to prevent prejudicial distortions of their work (the right of integrity)

    The last part of that quotation got my attention, because I immediately wondered how this affects book reviews.

    These often reflect the prejudices of the reviewer. I’m sure no one here needs to ask, for instance, what was said about “Unfreedom of the Press” by Mark Levin in the various media.

    The Washington Times:

    In this thoroughly researched and well-written analysis

    NPR:

    But the book is largely filler. … According to the FDA, for something to be marketed as cheese, most of its makeup has to be cheese, not filler. Otherwise, it is generally called “cheese product.” If there were similar rules for books, Unfreedom of the Press would have to be sold as “book product.”

    Now, I haven’t read the book, and probably won’t, but I know enough about Mark Levin to know that he would say The Washington Times is an accurate representation of his book and NPR is not.

    Does he have the moral right to prevent NPR from characterizing his book in the way it does?

    Personally, I hope not. That would be another blow against freedom of speech.

    • Felix J. Torres

      Great example.
      Just bear in mind that most of the places that enshrine “moral rights” don’t have full freedom of speech. The case can be made that “moral rights” are incompatible with the First Amendment freedom of speech clause.
      Messy thing.

      And that is without getting into the contract law issues.

    • Terrence OBrien

      I suppose that could also be applied to politicians speeches. The Washington Times says one thing, and NPR says another.

      Maybe the opinion of a trial judge is characterized very differently by the opposing counsels at the appeals level?

      Everything we read or hear has an author, and “actually expresses the personality of the author.”

  4. the right of an author to compel the completion of a commissioned work of art.

    How on earth would this work? And has it ever been litigated? And if it applies one way, shouldn’t it apply the other? e.g. if the party commissioning the work of art can be compelled to see it to completion, could the artist be compelled to finish it?

    I didn’t think specific performance existed outside of real estate…but I’m no lawyer.

    • Felix J. Torres

      And there you have but two of the contract law issues.
      The whole idea gives me the heebie jeebies.

      Nothing good can come of importing that muddy thinking mess.
      I’d rather have freedom of speech and strong property rights.

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