RE: Right of attribution

Jessica Litman writes (and in the spirit of the integrity right, I will not edit):
>
> Mark Lemley suggested replacing copyright law within the boundaries
>of the net with a right of attribution, which inspired a number of
>responses on the more general question whether any of the droit morale
>rights ought to be rights within the copyright bundle. I read Mark to
>be suggesting that his observations of the net thus far had led him to
>conclude that most folks posting on the net cared less about
>traditional economic copyright rights *in* *the* *material* *they*
>*post* than they did about accurate attribution.
>
> If we posit some typical current netizen, it seems to me
>Mark is right as a descriptive matter. I suspect that that typical
>current netizen also cares a great deal about what we're used to
>thinking of as the moral right of integrity: the ease with which
>electronic texts may be altered has many people concerned with finding
>ways to detect and prevent it.
>
> We've become accustomed to thinking of rights of attribution and
>integrity with a lot of baggage associated with authors' rights regimes
>on the European continent and the expanding scope of the U.S.'s Lanham
>Act. But, there is value, I think, in taking a fresh look at the content
>of the rights we are talking about divorced from the contexts in which
>we are used to encountering them.
>
> This brings me back to Mark's very interesting question: there is
>surely a significant subset of potential posters who would prefer a
>regime based on rights of attribution and integrity *without economic
>rights* to one based on the current U.S. economic-rights-only setup.
>(One can imagine a set of rules under which the originator of a work
>had no power to prevent its reproduction so long as it was accurately
>attributed and reproduced.) If that group is very substantial, that
>fact *ought* to have policy implications for decisionmakers trying to
>adapt traditional intellectual property rules to networked environments.
>
> One answer that currently seems popular with the authors of the
>IITF Working Group Green Paper is to strengthen the copyright owners'
>control of reproduction to, in effect, vindicate any integrity or
>attribution interests through copy protection and similar technological
>devices, while simultaneously enhancing economic rights. Another
>possibility, though, is that securing attribution and integrity rights
>in some contexts would permit us to abandon traditional economic rights
>without meaningful diminution in the number and quality of works that
>are created and disseminated.

        I have long thought that those who are concerned with the overexpansion of copyright have too quickly portrayed moral rights as the ultimate villain. The attribution right imposes little burden on users and the integrity right is, in many cases, no broader than the derivative right, the only difference being that the integrity right remains with the author, where the derivative right is freely transferable. In addition, if current First Amendment jurisprudence is any guide, personal rights are more yielding than property rights when free speech interests are weighed against them. (Contrast the extensive First Amendment limitations on privacy and defamation claims with the minimal limitations imposed on right of publicity and trademark claimants. Contrast also the general unwillingess of courts, on prior restraint grounds, to grant preliminary injunctions in privacy and defamation cases with the liberal granting of preliminary injunctions in copyright cases -- though Acuff-Rose may at last signal a heightened recognition of the burden on free speech posed by such relief.) Since moral rights are personal rights, rather than property rights, they might actually be more malleable and more yielding to transformative uses than are economic rights.

        Just the same, I fear that the complete replacement of economic rights with moral rights, even on the Net, is a utopian dream. Replacement may be fine for those of us who use the Net as a simple and quick means of correspondance -- and for us, as previous threads have suggested, our mutual implied consents for noncommercial uses probably achieve something close to that anyway. The same might also be true of scholars who (1) do not expect or depend upon direct financial remuneration for their writings and (2) can generally rely on volunteer peer review and editing. But the Net is already expanding to encompass much of what is now the commercial distribution of hard copies of copyrighted works. The authors of many of those works do depend on payment for their works to make a living. Moreover, the role of commercial publishers is not simply distribution, but also gatekeeping, editing and marketing. While distribution on the Net may obviate the need for hard copy distribution, there would still be a demand, I imagine, for these additional tasks and there would still be a need for some mechanism to compensate those who perform them. With all of its problems, copyright (and here I mean the economic rights), it seems to me, will still be the least bad means to compensate and provide an incentive for those authors and electronic publishers.

Neil Netanel
Assistant Professor
University of Texas School of Law
<nnetanel[_at_]mail.law.utexas.edu> Received on Wed Dec 07 1994 - 21:37:45 GMT