Moral rights (Was: copyright expiration as a spur to creativity)

Madeleine Fix <fix.3[_at_]osu.edu> wrote:
>
> Mr. Roettinger; could you illustrate the parameters of moral rights
> relating to intellectual property a bit more in depth? Do these rights
> pertain to artistic and/or other forms of creativity which are protected
> by copyright?

Continental European countries traditionally protect authors' "moral rights". See also article 6bis Berne Convention. The moral rights include:

• the right to claim authorship (paternity): If the authorship of a creator of a work is disputed or if it is ascribed to another, the author is entitled to claim the paternity of the work. He may claim, in particular, a declaratory judgment fixing the work's authorship. In such cases a particular legal interest is not argued.
• the right to claim credits: The author can determine whether the work is to bear the author's name or other designation and which designation shall be used, if any. The author's designation is protected against changes by third parties to the same extent as the work itself. The right to claim credits means that the work may not be exploited (reproduced, brought on the market or publicly displayed) without the designation of the author.
• the right to integrity: This is the author's right to object to any mutilation or other modification of his work.

As a rule, the moral rights of the author are not tranferrable (assignable). This follows from the concept that copyright is not transferrable inter vivos; only the exploitation rights may be licensed.

US copyright law traditionally did not separately protect moral rights. Article 6bis Berne Convention (to which the USA adhered in 1988) was not transposed into national US copyright law. (On the other hand, Congress made it clear that the Berne Convention is not self-executing.) However, in the Visaul Artists Rights Act of 1990 Congress extended certain moral rights to a limited class of works.

Three cases illustrate the status of moral rights under US federal and state law:

• Gilliam v. American Broadcasting Co., 538 F.2d 14, 192 U.S.P.Q. 1 (2d Cir. 1976)
• Weinstein v. University of Illinois, 811 D.2d. 1091 (7th Cir. 1987)
• Wojnarowicz v. American Family Association, 745 F. Supp. 130, 17 U.S.P.Q.2d 1337 (S.D.N.Y. 1990)

I hope this helps a bit.

Moritz Roettinger

Dr Moritz Roettinger
European Commission, Brussels
Universitites of Vienna and Saarbruecken moritz.roettinger[_at_]dg23.cec.be Received on Mon Aug 31 1998 - 16:52:02 GMT