#10538 - Copyright Law Moral Rights - Intellectual Property Law

Moral rights

• When a work is accorded copyright – two types of rights arise

  • Economic rights to the first owner

  • Moral rights to the authors of certain works

• Moral rights protect an author’s non-pecuniary or non-economic interests

• 1988 Act – provides authors and directors with…

  • The right to be named when a work is copied or communicated – the right of attribution

  • The right not to be named as to the author of a work which one didn’t create – the right to object against false attribution

  • The right to control the form of the work – the right of integrity

• The moral rights recognized in UK – more limited than other jurisdictions

  • Right to correct the work, right to object to alteration/destruction of the original work/right to object against excessive criticism of the work/right to withdraw the work from circulation

• Infringement of a moral right damages

• Moral rights of integrity and attribution last for the same time as the copyright in the work

• The right to object as false attribution – less extensive – only lasts for 20 years after the author’s death

• After the author’s death, moral rights are exercised by their heirs

• The 1988 moral rights – introduced to give effect to Art 6bis Berne Convention – requires Member States to confer on authors the right of attribution and of integrity

  • “Independently of the author’s economic 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”

• Instead of replicating Art 6bis, the UK has provisions – each of which has a number of conditions, limitations and exceptions --- commentators have suggested that the UK has implemented Art 6bis in a “cynical, or at least half-hearted” way – Ginsburg [1990]

• Support an criticism for moral rights

Criticisms

• Founded on a romantic image of the author as an isolated creative genius who has imparted his personality on the work

  • Moral rights enable the author to maintain the “indestructible creational bond” that exists between his personality and the work – Dietz (1994)

  • ---Unrealistic conception of authorship

  • It fails to acknowledge the collaborative and inter-textual nature of the creative process – P Jaszi (1992)

• ALSO – moral rights are alien – they have their origin in continental copyright systems and cannot be absorbed into a common law system

• Moral rights represent an unjustified legal intervention in the working of the free market

  • Moral rights typically secure author’s interests at the expense of entrepreneurs, disseminators

  • They may inhibit the creation of derivative creations – if the author were to use their moral right of integrity to prevent the publication of a parody then this would conflict with the right to freedom of expression and the broader public interest

  • Moral rights prioritise private interests over the public interest

The Right of Attribution

• s77 CDPA – “right to be identified as author or director”

• While the right of attribution cannot be assigned, it can be waived

• The right lasts for the same period of time as the copyright in the relevant work

• The right to be named – symbolic, economic and cultural consequences

  • The celebration and reward for the work for the author

  • The interpretation of the work – so far as it provides a biographical history of the author

  • The channeling of royalties

• An author may be able to rely on a number of mechanisms other than the right of attribution to ensure they are named

  • Publishing contracts – terms dealing with attribution which can be enforced against the publisher and poss also against third parties who knowingly induce such breaches

  • Such a term might be implied into a contract

Subsistence of the right of attribution - 2 things

• That the work in Q is the type of work to which the right applies

• That the right of attribution has been asserted

Relevant works

• The right is recognized in relation to original LDMA works and films

• In the case of films – the right of attribution is granted to the director

• Within these general categories there are exceptions:

  • Right does not arise in relation to works made for the purpose of reporting current events – s79(5)

  • It doesn’t apply to contributions to a newspaper, magazine, encyclopedia etc – s79(6)

• These exceptions – difficult to reconcile with the Berne Convention

• They reflect government concessions to the lobbying power of the newspaper and other publishing industries

  • There were fears that the need to name the author of a work would interfere with the prompt delivery of news

  • It was also feared that enabling an author of a news story to be named would undermine the image of the news as being objective and neutral

• Act also states that the right doesn’t apply to computer programs, computer generated works, typefaces – s79(2)

  • No satisfactory justification has been given for denying authors of computer programs or typefaces the right

  • TRIPS Art 10 states that computer programs will be protected as literary works under the Berne Convention

  • While TRIPS Art 9 does not require that members apply Art 6bis, it seems that Art 10 requires that Art 6bis be applied as regards computer programs (?)

  • Computer-generated works – may be justified on the grounds that such works do not fall within Berne because Berne is a Union for the protection of author’s rights – Berne Art 1

Requirement of assertion

• s78(1) – right does not arise until it has been asserted

• Even if it has been asserted, in a action for infringement, the courts take into account any delay in asserting the right when considering remedies – s78(5)

• The imposition of the assertion requirement – justified because Art 6bis only requires members of the Union to confer on authors the right “to claim” authorship

  • BUT it has been argued that such an interpretation is unsustainable because Art 5(2) Berne Convention requires that an author’s “enjoyment and exercise of these rights shall not be subject to any formality”

  • BUT also note the TRIPS Agreement does not require that Art 6bis of Berne be implemented

• The right can be asserted in 2 ways

• When copyright in a work is assigned, the author/director includes a statement that asserts their right to be identified – s78(2)(a)

  • The right binds the assignee and anyone claiming through them, whether or not they have notice of the assertion

• Second, the right may be asserted by an instrument in writing signed by the author or director – s78(2)(b)

  • The assertion only binds those who have notice of the assertion

• The first mechanism – a more effective mode of assertion

• In relation to ARTISTIC WORKS

  • The right will have been asserted if the artist is defined on the original, copy, frame, mount or other attachment when the artist or first owner parts with possession of the original – s78(3)(a)

    • Binds anyone into whose hands the original copy comes, whether or not the identification is still visible/present

  • The right may be asserted by the inclusion of a specific statement to that effect in a licence that permits copies of the work to be made – s78(3)(b)

    • Binds the licencee and anyone into whose hands a copy made pursuance to the licence comes, whether or not they have notice of the assertion

Infringement

• For the right to be infringed, must show that

  • The author has not been properly identified

    • The name of the author must appear in one or on each copy of the work in a clear and reasonably prominent manner – s77(7)

    • Where it isn’t appropriate for the name of the author to appear on each copy, the name must appear in a manner which is likely to bring their identity to the notice of the person acquiring a copy

    • Sawkins [2005] – merely thanking a person for “preparing materials” was held not to have indentified his authorship

    • It isn’t clear whether the attribution right gives rise to a right of anonymity – which may be valuable in raising public curiosity/protecting the author from vilification or criticism ---- seems unlikely though

  • The work has been dealt with in circumstances where attribution is required

    • An author of a literary/dramatic work has the right to be identified whenever copies of the work are published commercially/the work is performed in public – s77(7)(a)

    • See s77

  • None of the defences or exceptions applies – s79 see

    • S79(3) – the employer exception – this exception can be explained on the basis that the employer has paid for the creation of the work so should have complete freedom to exploit it

      • Insofar as the right plays a role in establishing an author’s reputation, the link between authorship and livelihood is less important when the creator is employed

  • NOTE – an author can waive his right to attribution

The right to object to false attribution

• S84 – false attribution of work

• Oldest of the UK statutory rights

• This right – more extensive than the right of attribution

  • The right to object to false attribution applies whether or not the claimant is an author – the right to object to false attribution applies to persons wrongly named as authors/directors

    • Clark v Associated Newspapers [1998] – Lightman J – the section confers a personal or civic right

  • The provision does not contain the usual exceptions for computer programs/computer-generated works – while the author of a program has no right to be named, a person who is not the author has the right not to be named as its author

• Less extensive

  • The right only lasts for 20 years after the death of the person

Clark v Associated Newspapers...