Moral rights

Moral rights are rights of creators of copyrighted works generally recognized in civil law jurisdictions and, to a lesser extent, in some common law jurisdictions. They include the right of attribution, the right to have a work published anonymously or pseudonymously, and the right to the integrity of the work.^[1] The preserving of the integrity of the work bars the work from alteration, distortion, or mutilation. Anything else that may detract from the artist's relationship with the work even after it leaves the artist's possession or ownership may bring these moral rights into play. Moral rights are distinct from any economic rights tied to copyrights. Even if an artist has assigned his or her copyright rights to a work to a third party, he or she still maintains the moral rights to the work.^[2]

Moral rights were first recognized in France and Germany,^[3] before they were included in the Berne Convention for the Protection of Literary and Artistic Works in 1928.^[4] Canada recognizes moral rights (droits moraux) in its Copyright Act (Loi sur le droit d'auteur).^[5] While the United States became a signatory to the convention in 1989,^[6] it still does not completely recognize moral rights as part of copyright law, but rather as part of other bodies of law, such as defamation or unfair competition.^[7]

Some jurisdictions allow for the waiver of moral rights.^[8] In the United States, the Visual Artists Rights Act of 1990 (VARA) recognizes moral rights, but applies only to a narrow subset of works of visual art.^[9]

Berne Convention

Article 6bis of the Berne Convention protects attribution and integrity, stating:

Independent 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 the author's honor or reputation.^[10]

Worldwide situation

Legend

• ∞ = infinity (to identify perpetual moral rights, though countries and areas may have different wordings in their laws and regulations)
• = economic rights = equal to or same as economic rights

Table

In Europe

In most of Europe, it is not possible for authors to assign or even waive their moral rights. This is following a tradition in European copyright itself, which is not regarded as an item of property which can be sold, but only licensed. Parties certainly can agree not to enforce them (and such terms are very common in contracts in Europe). There may also be a requirement for the author to 'assert' these moral rights before they can be enforced. In many books, for example, this is done on a page near the beginning, in and amongst the British Library/Library of Congress data.

In Canada

Section 14.1 of Canada's Copyright Act protects the moral rights of authors.^[12] The moral rights cannot be assigned, but can be waived contractually. Many publishing contracts in Canada now contain a standard moral right waiver.

Moral rights in Canada were famously exercised in the case of Snow v. The Eaton Centre Ltd.^[13] In this case Toronto Eaton Centre, a large shopping mall, had commissioned the artist Michael Snow for a sculpture of Canada Geese. Snow successfully stopped Eaton's from decorating the geese with bows at Christmas.

In the People's Republic of China

Article 20 of the Copyright Law of the People's Republic of China (1990) provides unlimited term of protection of the rights of authorship, alteration, and integrity of an author. As Article 55 of the same Law provides retroactive protection of unexpired term on the date of entry into force of this Law, the Chinese perpetual moral rights are retroactive as well. The 2001 version retains this provision and the original Article 55 becomes Article 59.

The Copyright Law of the People's Republic of China applies neither in Hong Kong nor in Macau because it is not listed in Annex III of the Hong Kong Basic Law or Annex III of the Macau Basic Law.

In the Republic of China (Taiwan)

In the jurisdiction of the Republic of China, the Copyright Act has provided authors' perpetual moral rights with regard of attribution and protection against alteration in bad faith, even if the works are in the public domain, as follows:

• Article 25 of the Copyright Act 1928 [3]
• Article 21 of the Copyright Act 1944 [4]
• Article 21 of the Copyright Act 1948, unchanged from the 1944 Act [5] (The effective jurisdiction of the Republic of China became limited to Taiwan Area in 1949.)
• Article 21 of the Copyright Act 1964, unchanged from the 1948 Act [6]
• Article 26 of the Copyright Act 1985 [7]
• Article 26 of the Copyright Act 1990, unchanged from the 1985 Act [8]
• Section 3, Articles 15-21 of the Copyright Act 1992, with the Article unchanged in the subsequent versions of the Copyright Act [9] [10]

In Ghana

Art. 18, Copyright Act, 2005 provides perpetual moral rights. The moral rights in Art. 6 are for proper attribution and against any distortion, mutilation or other modification of the work where that act would be or is prejudicial to the reputation of the author or where the work is discredited by the act.

In Hong Kong

Moral Rights is specified under Copyright Ordinance (Chapter 528) Division IV, starting from section 89.^[14] Author of computer program does not have Moral Rights (section 91). Moral Rights cannot be transferred unless on the death of moral rights holder (section 105 and 106).

In Macao

Article 41 of the Decree-Law_n.o_43/99/M provides inalienable, unrenounceable and imprescriptible author’s personal rights.

In the United States

Moral rights have had a less robust tradition in the United States. Copyright law in the United States emphasizes protection of financial reward over protection of creative attribution.^[15] The exclusive rights tradition in the United States is inconsistent with the notion of moral rights as it was constituted in the Civil Code tradition stemming from post-Revolutionary France. When the United States signed the Berne Convention, it stipulated that the Convention's "moral rights" provisions were addressed sufficiently by other statutes, such as laws covering slander and libel.^[16]

The United States Supreme Court affirmed the selection of the Berne Convention Copy regime for Articles 1-21 by Congress in 1994. The Court ruled in Golan v. Holder, (10-545) that this selection was a legitimate Congressional Action and didn't violate the Copyright Clause of the Constitution. The Supreme Court ruled explicitly that removing art from the public domain did not disturb Free Speech. The moral rights were less robust in the United States for centuries but are now affirmed to be the same as the Berne Convention.

Some individual states have moral rights laws, particularly pertaining to visual art and artists (See, e.g. California Art Preservation Act, Artists Authorship Rights Act (New York)). However it is unclear if these laws, or portions thereof, are preempted by federal law including VARA.

The Monty Python comedy troupe made a claim of "mutilation" (akin to a moral rights claim) in 1975 in legal proceedings against American TV network ABC for airing re-edited versions of Monty Python's Flying Circus.^[17] However, the case was primarily decided on the basis of whether the BBC was licensed in such a way as to allow ABC to edit the videos (paragraph 20).

Visual Artists Rights Act

The Visual Artists Rights Act of 1990 (VARA) recognizes moral rights, but only as they apply to listed works of visual art. The VARA is part of Title 17, the U.S. Copyright Code. (VARA) was ruled to not protect against disparaging Internet uses of listed works of visual art in Neeley v NameMedia inc et al, in docket 267^[18] of (5:09-cv-05151)(11-2558)

VARA gives qualifying authors the following rights:

• right to claim authorship
• right to prevent the use of one's name on any work the author did not create
• right to prevent use of one's name on any work that has been distorted, mutilated, or modified in a way that would be prejudicial to the author's honor or reputation
• right to prevent distortion, mutilation, or modification that would prejudice the author's honor or reputation
• right to prevent the destruction of a work of art if it is of "recognized stature"^[19]

Adaptation right

Copyright holders have the right to control adaptations, or the preparation of "derivative works". This right is given under copyright law. See 17 U.S.C. § 106.

Lanham Act

Section 43 of the Lanham Act governs false and misleading advertising, and can apply in some instances to attribution of protected works. However, it cannot be used to create moral rights for works outside of the Act. See Dastar v. Twentieth Century Fox.

Courtesy of non-attribution

Authors may choose to use a pseudonym to disclaim authorship of a particular work. One such pseudonym was Alan Smithee, a name used by discontented Hollywood film directors who no longer want to be credited between 1968 and 1999. In case the work is unfinished, the use of a pseudonym may be considered an approval from the original author so the copyright owner could do whatever it takes to finish and market the unwanted work.

The director of Highlander II, Russell Mulcahy, wanted his name removed after the completion bond company took over film production, but he was contractually obliged not to impugn the film and he was told that using a pseudonym would impugn it.^{[citation needed]}

References

Further reading

• Peter E. Berlowe, Laura J. Berlowe-Heinish, and Peter A. Koziol, In this Digital Age, Are We Protecting Tomorrow's "Masterpieces"? Protection of the Moral Rights of the Digital Graphic Artist, 81 Fla. Bar J. 30 (2007)
• Laura Gassaway, Copyright and moral rights. (Copyright Corner). "Information Outlook," Vol. 6, No. 12(December 2002), pp. 40–41.
• Patrick Masiyakurima, The Trouble with Moral Rights, The Modern Law Review (May 2005), 68 (3), pp. 411–434
• Cyrill P. Rigamonti, Deconstructing Moral Rights, 47 Harv. Int'l L.J. 353 (2006)
• Cyrill P. Rigamonti, The Conceptual Transformation of Moral Rights, 55 American Journal of Comparative Law 67 (2007)
• Mira T. Sundara Rajan, /1/Moral%20Rights%20and%20Copyright%2 0Harmonisation%20-%20Prospects%20for% 20an%20'International%20Moral%20Right '.pdf Moral Rights and Copyright Harmonisation - Prospects for an 'International Moral Right', British and Irish Law Conference, 2002, Free University, Amsterdam