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

Moritz Roettinger <moritz.roettinger[_at_]dg23.cec.be> wrote:
>
> 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.

Just a remark to say that the concept that copyright is not transferrable inter vivos is a concept developed under German law, which is not shared by other "author's right" systems. For example under French law copyright (i.e. author's rights less moral rights) is freely transferrable (subject to mandatory rules regarding contracts and specific prohibitions, such as the prohibition of assignments of future works). Moral rights were developped by case law in the mid 19th century. Interestingly enough, the early cases protected the moral interests of authors through the law of tort and restrictive constructions of assignment contracts. In the same way, it can be said that moral interests of authors are indirectly protected (to a lesser extent, of course) in copyright countries through indirect means, such as passing off, defamation, or a restrictive constuction of licences or grants of rights. The difference is that under French law, the general clause of tortious liability included in the Civil Code is a very flexible tool for the protection of new rights. In the 1870s the theory of the "rights of personality" was introduced into French law from Germany, and provided the tool for the elaboration of a comprehensive theory on "moral rights" (as rights of personality). But it was only in 1957 that the theory was codified into the French copyright Act.

Also, apart from the moral rights of integrity and paternity, consecrated in article 6bis of the Berne Convention, Continental author's right systems protect other moral rights, such as the right of "divulgation" or of "dissemination" (the right to decide how and when a work should be made public - including the right not to make it public) or the right to revoke a grant of right or to withdraw a work from commerce (on the condition that the author indemnifies the transferee for any loss), sometimes called right of "reconsideration".

Pascal Kamina
Dr. Jur. (France) / L.L.M., Ph.D. (Cambridge) pkamina[_at_]club-internet.fr Received on Tue Sep 01 1998 - 21:52:12 GMT