#19697 - 9. Moral Rights - Intellectual Property Law

WEEK 9

MORAL RIGHTS

Goal of moral rights = to protect non-pecuniary or non-economic interests

Two distinct categories of rights may arise when a work qualifies for copyright protection

1. Economic rights

2. Moral rights for authors of certain works

Moral rights protect the personal relationship between the author and his work as his intellectual creation (emanation of his personality – Funke Medien)

Rights conferred by the UK jurisdiction

• The right to be named when a work is copied or communicated (right of attribution)

• The right not to be named as the author of a work they did not create (right to object against false attribution)

• Right to control the form of the work (right of integrity)

Infringement of a moral right in the UK is actionable as a breach of statutory duty, resulting in an award of damages.

Term

Integrity and attribution - last the same time as the copyright in the relevant work

False attribution – 20 years after the death of the author

• After the author’s death, moral rights are usually exercised by their heirs, but some countries’ executive bodies enforce this (Ministry for Culture, eg)

Moral rights in the 1988 Act are to give effect to the Article 6bis Berne Convention

British legislature chose to introduce detailed statutory provisions which contains conditions limitations and exceptions – argued as ‘cynical or half-hearted’ by commentators.

Criticism of moral rights

1. Grounded on a romantic image of an author as an isolated genius who in creating a work imparts their personality upon the resulting work

This has become unfashionable because it is an unrealistic image of the process of authorship. It fails to acknowledge the collaborative and intertextual nature of the creative process.

2. Focuses on their foreign and alien nature - moral rights cannot be readily absorbed or transplanted into a common law system; it has their origin in continental origin systems (not common law systems). It upsets the existing copyright regimes.

3. Represent an unjustified legal intervention in the working of the free market

Moral rights typically secure authors’ interests at the expense of entrepreneurs, disseminators, exploiters of copyright

4. Prioritises private interest over public interests

Inhibits creation and dissemination of derivative creations (multimedia works and parodies)

Right of attribution (or paternity)

Cannot be assigned but can be waived. Lasts for the same period of time as the copyright in the relevant work

Symbolic economic and cultural consequences – the name of the author performs many different roles

• Facilitates the management of intellectual works (through catalogues, bibliographies, indexes), the channelling of royalties (from the public lending right scheme), the interpretation of the work (psychological/biographical history of the author)

An author may rely on other mechanisms other than the right of attribution to ensure they are named (publishing contracts; implied terms eg. Miller v Cecil Film Ltd 1937; law of reverse passing off)

Necessary to show 2 things

1. The work in question is the type of work to which the right applies

2. Right to attribution has been asserted

Limited works

• Original literary, dramatic, musical, and artistic works, the right is granted to the author of the work

• In films, the right is granted to the director

Does not arise in reporting current events, contributions to a newspaper, magazine or periodical, or an encyclopaedia or similar work (s.79(6) CDPA) – enabling authors to be named in a news story would undermine the objectivity and neutrality of the news

• Does not apply to computer programs, com generated work, typefaces or works protected by the crown or by similar copyright

Assertion = the right does not arise until it has been asserted; even if it has been asserted, the courts take into account any delay in asserting the right when considering remedies.

• The right can be asserted in 1 of 2 ways –

1. When copyright in a work is assigned, the author/director includes a statement that asserts their right to be identified

2. An instrument in writing signed by the author or director.

• The form of assertion has an important impact on the extent to which third parties are bound to comply with the right (s.78)

• For the second way – binds only those who has notice of the assertation. The first way is more effective to assert the right

• An author / director can use both methods and make a number of assertions!

• Two additional modes of assertion in relation to artistic works

1. right is asserted when the artist is identified on the original, copy, frame, mount, or other attachment when the artist or the first owner of copyright parts with possession of the original s.78(3)(a)

• binds anyone into whose hands the original or copy comes (incl. borrowers and purchasers) whether or not identification is still present or visible.

2. inclusion of a specific statement to that effect in a license that permits copies of the work to be made s.78(4)(c)

• binds anyone licensee and anyone into whose hands a copy made in pursuance of the license comes, whether or not they have notice.

Infringement

For the right of attribution to be infringed, it is necessary to show that

1. the author has not been properly identified;

2. the work has been dealt with in circumstances under which attribution is required; and

3. none of the defences or exceptions applies

Author has not been properly identified

• Merely thanking a person for preparing materials was held not to be identified that person’s authorship (Sawkins v Hyperion Records 2005)

• The name of the author must appear in or on each copy of the work in a clear and reasonably prominent manner (s.77(7) CDPA)

  • So long as the name becomes apparent in its use, there is no need for the author to be named such that can be ascertained prior to the acquisition of the copy

• Book – inside of work is ok

• Performance, exhibition, showing, broadcast, or cable transmission – the author’s identity must be brought to the attention of the audience

• Building – identification should be visible to persons entering or approaching the building

• If the author specifies a pseudonym, initials, or some other form of identification such as a symbol be used (eg. Prince), this should be adopted. (s.77(7)(a) CDPA)

• Anonymity is unlikely to be protected

Circumstances under which attribution is required

In all cases, the right applies whether the act is carried out in relation to the whole/substantial part of the work.

• Literary or dramatic work – whenever copies of the work are published commercially, or the work is performed in public or broadcast

  • The author of a play has the right to be named when copies are sold in bookshops, or the play is performed in public

  • The right applies equally to adaptations of the work – the author of a French novel has the right to be named on copies of an English translation

• Musical works (song writers), the author of the music/lyrics of a song has the right to be named in the commercial publication of copies of the song

  • Issue of song books, sound recrodings, films containing a recording of the song

  • However, does not extend to circumstances under which the song is performed in public or broadcast (s.77(2),(3) CDPA) – DJs and broadcasters would not have to name songwriters when songs are broadcast or played in clubs

• Artistic works – where the work is published commercially, is exhibited in public or where a visual image of it is broadcast or included in a cable transmission.

  • If an artwork is filmed- the artist should be identified when the copies of the film are issued to the public or if the film is shown in public

  • The creator of a building, sculpture, or work of artistic craftsmanship should be named where copies of a graphic work representing it or a photograph of it is issued to the public.

  • The author of a work of architecture has the right to be identified on the building was constructed – if a series of buildings are made the architect need only be named on the first (to be) constructed building.

  • Film – a director has a right to be identified whenever the film is publicly shown, broadcast, or included in cable service; the director also has the right to be named on copies of the film, but not (seemingly) where the films are rented.

Exceptions and qualifications upon the scope of the right of attribution – s.79(3) CDPA 1988

1. If the employer or copyright owner authorised reproduction, etc, of the work, then the right does not apply.

   • Rationale – if the employer paid for the creation of the work, it should have complete freedom to exploit it

   • The employer should not be required to keep detailed records of who contributes to collaborative work.

2. Attribution right is not infringed where the act in question amounts to fair dealing for the purpose of reporting current events by means of sound recording, film or broadcast

3. The right is not infringed where the work is accidentally included in an artistic work, sound recording, film, or broadcast s.79(4)(b)

4. Where work is used for the purposes of examinations, parliamentary or judicial proceedings, and government inquiries (s.79(4A))

5. While s.30A permits use of a work for caricature, parody, or pastiche, without requiring sufficient acknowledgement, no exception is provided to the moral right of attribution

   1. Parodists have to effectively take the risk of acting unlawfully if they do not make the authorship of the parodied work clear

Waiver – an author can waive their right of attribution. This is relevant for ghost-writers

Right to object to false attribution

s.84 CDPA – provides...