Definitions

Moral_rights

Moral rights

Moral rights are rights of creators of copyrighted works generally recognized in civil law jurisdictions and first recognized in France and Germany, before they were included in the Berne Convention for the Protection of Literary and Artistic Works in 1928. Canada recognizes moral rights in its Copyright Act, although the French translation of the phrase used in the legislation is "droits moraux", not "droit d'auteur". While the United States became a signatory to the convention in 1988, 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.

Moral rights include the right of attribution, the right to have a work published anonymously or pseudonymously, and the right to the integrity of the work. 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 rights to a work to a third party, he or she still maintains the moral rights to the work. Some jurisdictions allow for the waiver of moral rights. In the United States, the Visual Artists Rights Act of 1990 (VARA) recognizes moral rights, but only applies to works of visual art.

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.
Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886, art. 6bis, S. Treaty Doc. No. 27, 99th Cong., 2d Sess. 41 (1986).

In most of Europe, it is not possible for authors to assign their moral rights (unlike the copyright itself, which is regarded as an item of property which can be sold, licensed, lent, mortgaged or given like any other property). They 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.

Some European countries also provide for artist resale rights, which mean that artists are entitled to a portion of the appreciation of the value of their work each time it is sold. These rights are granted in respect of a non Anglo-Saxon tradition -- the droits d'auteur concept rather than copyright. Droits d'auteur, and most legislation implementing it, also grants all creators various moral rights beyond the economic rights recognized in most copyright jurisdictions (see also parallel import).

Moral rights in Canada

Section 14.1(1) of Canada's Copyright Act protects the moral rights of authors. 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 the People's Republic of China

Article 20 of the Copyright Law of the People's Republic of China 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.

Article 20 of the Copyright Law of the People's Republic of China also provides unlimited term of protection of the rights of authorship, alteration, and integrity of an author. As Article 59 of the same Law, the same as Article 55 of the 1990 Copyright Law, provides retroactive protection of unexpired term on the date of entry into force of this Law, the Chinese perpetual moral rights remain retroactive.

The Copyright Law of the People's Republic of China is inapplicable in Hong Kong and Macau because it is not listed in Basic Law of the Hong Kong Special Administrative Region/Annex III of the Hong Kong Basic Law or Basic Law of the Macao Special Administrative Region/Annex III of the Macau Basic Law.

Moral rights in the Republic of China

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
  • Article 21 of the Copyright Act 1944
  • Article 21 of the Copyright Act 1948, unchanged from the 1944 Act (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
  • Article 26 of the Copyright Act 1985
  • Article 26 of the Copyright Act 1990, unchanged from the 1985 Act
  • Article 18 of the Copyright Act 1992, with the Article unchanged in the subsequent versions of the Copyright Act

Moral rights 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.

Moral rights in Macao

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

Moral rights in the United States

Moral rights have had a less robust tradition in the United States. 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.

The Monty Python comedy troupe famously managed to rely on moral rights in 1975 in legal proceedings against American TV network ABC for airing re-edited versions of Monty Python's Flying Circus.

Visual Artists Rights Act

The Visual Artists Rights Act of 1990 (VARA) recognizes moral rights, but only as they apply to works of visual art. The VARA is part of Title 17, the U.S. Copyright Code.

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"

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 a 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.

Articles on moral rights

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)

Cyrill P. Rigamonti, Deconstructing Moral Rights, 47 Harv. Int'l L.J. 353 (2006)

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