Book Review: Research Handbook on IP and Moral Rights

This is a book review of the Research Handbook on Intellectual Property and Moral Rights, curated by Ysolde Gendreau (Université de Montréal, Canada), provided by Francesca Mazzi, Lecturer in AI, Innovation and Law at Brunel University London. Here’s what she has to say:

They say don’t judge a book by its cover, but we are diving into the realm of intellectual property here. The artist behind the painting on the cover graciously permitted reproduction of the work under certain conditions, including the use of a pseudonym. Such gestures couldn't be overlooked in a book on moral rights. It sets the tone perfectly, much like the epigraph of the book: an extract from Milan Kundera’s essay "Testaments Betrayed," delving into Stravinsky's frustration over his moral rights and Ansermet's irritation with his conduct.

 

A red-carpet entrance to a volume of 29 chapters by 33 contributors, showing Gendreau's ambitious undertaking: exploring moral rights from every conceivable angle. The chapters are neatly divided into six parts, each focusing on different jurisdictions and perspectives of moral rights.

The initial segment of the book delves into philosophy. As the editor writes: “The lack of elaborate international constraints does not mean that there is no general framework within which to delineate (moral rights) contours. Indeed, much of the debate takes place, consciously or unconsciously, in reference to cliché assumptions about moral rights.” Therefore, the first part explored philosophical debates of global relevance, that infuse moral rights with particular meanings, touching on Islamic perspectives, feminist theories, and political stances on moral rights post-Berlin Wall. 

Authors in the subsequent section explore industrial property rights, with Nari Lee delving into inventors and patents, Giorgio Spedicato shedding light on industrial design, and Genevieve Wilkinson discussing trade marks.

Traditional divisions of moral rights are dissected in the third part.Katarina de la Durantaye provides an European perspective by delving into the contraposition between dualist and monist traditions, to investigate whether it is an obstacle to harmonisation. Jay Dougherty brings the reader to the other side of the Atlantic, discussing contractual substitutes for moral rights in the US motion picture industry.

The fourth part offers a comprehensive overview of the challenges to moral rights. The topics vary. For example, Sergio Branco and Beatriz Nunes analyse artificial intelligence (AI) and moral rights. By addressing the concepts of authorship and moral rights, as well as subject matter requirements, they evaluate AI and creative works to tackle the question of originality of AI-generated works. The authors emphasize that AI cannot hold moral rights and that in the absence of an author, the work should be in the public domain. 

Another example is the chapter by Christophe Geiger and Elena Izyumenko on the topic of compliance with freedom of expression and moral rights. They focus on the unharmonized status of moral rights in the EU, and the ambiguities surrounding the availability of traditional copyright exceptions in this context. They provide insights into the tension between freedom of expression and moral rights by discussing renowned CJEU cases such as Deckmyn, Funke Medien, and Spiegel Online. Finally, they make recommendations by proposing alternative solutions to design a freedom of expression-compliant legal framework for moral rights.

Japan, China, Brazil, Latin America, and Commonwealth countries are covered in part five, providing readers with insights into non-EU jurisdictions' approaches to moral rights. In this section, Susy Frankel also contributes with an analysis of moral rights and the protection of traditional knowledge, explaining that some aspects of claims to traditional knowledge resemble moral rights claims. However, the overlap is partial and complicated by jurisdictional variations in the scope of protection. Frankel argues that moral rights alone are insufficient to protect traditional knowledge.

The book concludes in part six with practical issues encountered in real-life experiences by authors facing moral rights dilemmas, such as authors' desires to control the fate of their works beyond their death.

As the editors explain, “I hope the readers will find multiple reasons to continue to think about the role of moral rights in copyright law, of course, but also in patent law, design law, and trademark law.” This original contribution will therefore appeal to those interested in the scope and challenges of moral rights not only in the traditional area of copyright but also regarding other IP rights where the connection with moral rights is less obvious, and, as a consequence, the research avenues less explored.

Details:

Publisher: Edward Elgar

Extent: 582

Available in hardback and ebook

ISBN: 978 1 78990 486 4