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