For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Tuesday, 23 March 2010

Moral rights: no grey areas

A debate entitled "International Perspectives on Moral Rights", organised by the UK's Strategic Advisory Board for Intellectual Property Policy (SABIP), was held this morning. The debate, according to a handy press release from SABIP itself, brought together practitioners, academics and Government from the UK and abroad to explore how moral rights work in the UK compared with other nations.

Right: If copyright had existed during his lifetime, Leonardo might have had a mona 'bout this ...

According to the press release, which served as an hors d'oeuvres to the debate,
"In the UK, moral rights mean the author has the right to be identified as the producer of a work and can object to the work being used in a way they oppose [Correct. The Copyright, Designs and Patents Act 1988 categorises two other rights as moral rights, but they are not the moral rights of the author: (i) the right not to be attributed as author of something he hasn't writtten and (ii) the right to privacy in certain commissioned photographs]. Under British law moral rights are waivable, normally as the result of a contract between the parties.

The UK Government’s copyright strategy “© the future” noted that moral rights may be causing difficulty between the rights holder and the author, as well as between the author and the consumer and business [Well, that's most people, the Kat guesses ..].

During debate on the Digital Economy Bill, the Government agreed that further work could be done on moral rights. The aim of this workshop is to explore the key issues and to help inform future policy thinking in this area.

Mr Lammy [currently Minister for IP] said there has been a debate over whether to alter moral rights but there was little evidence over the impact this would have on the recognition or remuneration of creators [while the IPKat generally welcomes the move towards evidence-based policymaking, he wonders what sort of evidence is needed with regard to the legal entrenchment of matters of morality, such as whether it is right for a person to state falsely that he is the author of another's work].

He said: “The debate over moral rights is not an abstract one – it is something that impacts on us all. Anyone who blogs, Tweets or posts on Facebook is affected by moral rights [as indeed is anyone who sprays grafitti --or writes legal textbooks].

“There has been debate over changing how moral rights for creators work in the UK but we need more evidence before making any decisions. Today’s event will help by looking at how moral rights are applied in other countries as well as hearing the views of people working in Britain. I hope the discussions will provide real insights and help guide further work in this area.”

Joly Dixon, Chairman of SABIP, said: ...It is vital that those in Government have balanced and independent evidence to better inform their policy making. I look forward to a constructive and open debate.”
As good fortune would have it, copyright blogger, scholar and honorary Kat Hugo Cox was present. He informs us as follows:
"Today UK IP Minister David Lammy and SABIP hosted a policy panel event, 'International Perspectives on Moral Rights'. During the Government's recent brainstorming about copyright law, moral rights have emerged as one area where legislative review may be necessary and this event took the process further in a lively debate between stakeholders.

The two key moral rights that were discussed are the right of attribution (the right to be identified as the author of a work) and the right of integrity (the right to object to derogatory treatment of the work). These rights exist under UK law but must be asserted, can be waived and are subject to certain exceptions.

Ironically the event was subject to Chatham House rules, so I can't attribute input to any of the speakers. Anyway, here are some personal reflections ...

The absurdity of waivability

Moral rights only come into play where the author is licensing or assigning his rights – if a work is being used without any permission, the author can prevent the use altogether. There is of course nothing to stop an author stipulating in a licence that any use must be attributed to him and the work must not be mutilated. Therefore the only possible function for moral rights is to make sure these rights can't be excluded by contract under any circumstances, thus protecting a creator who may be in a weak bargaining position vis-à-vis the licensee. Making moral rights waivable negates this sole function.

Are international waivers legal?

When moral rights are waived in the UK, it appears that they are also mysteriously believed to be waived everywhere else. However, if a UK author waives his moral rights but his work is transmitted or sold outside of the UK, in countries where moral rights cannot be waived, they remain intact. The author has the right to sue the licensee in the law of those countries. There might be a covenant not to sue in the contract – but would that pass the UCTA reasonableness test?

Obligatory or not?

The question is, therefore, should these rights be compulsory or not?

First, if non-compulsory moral rights are as good as no moral rights at all, have we implemented the Berne Convention, which requires them?

Journalists, photographers, performers all want attribution. If others can locate them, they can get various forms of revenue and offers of new work. Their work will not get orphaned! Where productions involve large number of people, attaching names can present a presentational problem, but lateral solutions are at hand – such as listing names on web pages. Attribution also has other advantages: making people findable is helpful for the people trying to find them too (it facilitates the market); it makes it possible to establish the authoritativeness of sources in that information swamp we call the Internet.

The right of integrity is more complex. A media organization may want to edit material or use it in various ways. If it's having to worry about whether it is going to hurt the creator's feelings, then it has just got one more thing on its mind. Perhaps the answer is to clearly and objectively define the scope of 'derogatory treatment', so it can't be the subject of vain claims.

The UK has been sitting on the fence over moral rights – but there's only really one side it can come down on".
The IPKat thanks Hugo hugely for this masterly review of his own reflections. Meanwhile, still reflecting on everything having to be evidence-based, Merpel welcomes readers' suggestions as to what sort of evidence SABIP needs in the context of moral rights.

SABIP's Strategic Priorities for Copyright here
SABIP's Moral Rights page here
Moral rights here, here and here

7 comments:

Anonymous said...

It strikes me that it's not that inconceivable that there are grey areas in moral rights. Take journalism for example: currently there is a moral rights exception in the UK for work produced for the purpose of reporting news or current affairs. This is claimed to be for editorial ease - an editor should be able to make editorial changes to.text without clearing this with each author so as to be able to publish in a timely manner. Without clear evidence that this is abused - in terms of the spirit of the work being changed or the author's reputation being damaged - is it worth entering a long process of legislative reform? Philosophically maybe, but pragmatically it's not so clearcut.

estelle derclaye said...

I feel compelled to rectify a mistake - in the UK, the right of integrity does not have to be asserted, but only the right of paternity.

Also note that national or foreign contracts with sweeping waivers eg for future works, will not be enforced in France (eg Huston case) as the courts have held this is against the French ordre public. So despite a 'bad' British contract, British authors are well protected at least in France, if not in other author's rights countries.

Estelle Derclaye

Anonymous said...

You do have to assert the right of integrity in one sense, by bringing legal proceedings to enforce it. It doesn't enforce itself and there is no public body to police it.

estelle derclaye said...

Well this is the same with any right! With the right of attribution you have to do one more formality - see s 78 CDPA.

Nia Roberts said...

I suppose because of my patent background I never really gave much thought to moral rights until I gave a presentation on IP to a group of freelance photographers. They were, of course, interested in copyright and how it protected them but they were much more interested in their moral rights, and were surprised and delighted to learn that they had a right to be named as author of their work, for example.
There are other important dimensions to IP as well as just the economic dimension.

Andrew Robinson said...

I find the objection to allowing waiver of moral rights very interesting. This would have major implications for the Open Source and creative commons communities, who rely on an equivalent of 'promissory estoppel' to protect them from retrospective claims. Perhaps this is an argument in favour of the law dealing with so called copyleft situations differently to copyright?

Hugo said...

@Andrew Robinson - computer programs are currently subject to an exception, so the issue of waiver doesn't come up.

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':