Overview:

“Moral rights” are a set of intellectual property rights that are held by authors, inventors and creators of original artistic works. While copyright generally deals with who can use an artistic work in a certain way, moral rights govern how the work is used. Moral rights recognize that an artistic work is not merely a tangible object, but an extension of an artist’s personality which should be upheld as the artist intended. Accordingly, moral rights are personal rights that demand a duty of respect for an author’s creative excellence, staying with the author even after a work is sold. The two central focuses of moral rights are (a) to keep a work in its authentic, original form to protect the creator’s integrity (referred to as the right of “integrity”), and (b) to protect the creator’s personal attachment to their creation (referred to as the right of “association”). These rights are intended to help authors of creative works ensure that their works are correctly attributed to them and that the works are made available in their original forms. While these rights have been recognized nearly worldwide, the extent of their application and effect has varied. Although moral rights have been present in international intellectual property law for more than a century, there nevertheless continues to be a lack of clarity surrounding moral rights and how they are applied. This has been problematic for artists, particularly in this digital age where most content can be accessed globally. Moral rights have proven to be useful in some situations, but they have been largely unable to enhance the ability of artists to control the fate of their works when commissioned by a company or another individual. Even where the law appears to allow artists to keep their moral rights, these artists often lack the bargaining power to retain them, and the economic interests of the commissioning party tend to win out.

 

History:

Early Origins, 19th Century France:

While the principles of “moral rights” can be traced back as far as ancient Rome, the concept was first formally recognized in France during the 19th century under the French term droit moral. Although France had codified economic intellectual property rights in the 1790s by giving all writers, music composers, painters and engravers the lifetime right to sell, authorize the sale of, and distribute their work, the law did not specifically provide for any non-economic rights. After the French Revolution, courts came to recognize the following four non-economic interests in creative work:

 

1.         Le droit à la paternité (the right of attribution)

2.         Le droit au respect de l’oeuvre (the right of integrity)

3.         Le droit de divulgation (the right of disclosure)

4.         Le droit de repentir or de retrait (the right of withdrawal)

 

The most important of these four rights are the right of attribution, which is the requirement to associate an author’s name with their work, and the right of integrity, which gives the author creative control over modifications to their work.An early case in 1814 saw a French court recognize the right of an author to prohibit a publisher from adding unauthorized amendments to his text. By making this ruling, the court acknowledged the author’s right of integrity and the rule against unauthorized modification. Likewise, court cases dealing with attribution rights quickly began to rise in numbers, with creators demanding that their name remain attached to their work (or the opposite, in the case of anonymous or pseudonymous authors).

 

International Adoption of the Berne Convention, 1928:

In 1886, copyright protections were harmonized internationally by the adoption of the Berne Convention, which required its member countries to protect international works under a certain set of standards. However, it was not until 1928 that moral rights were first recognized by the Berne Convention, as follows: Independent of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, modification of, or other derogatory action in relation to the said work, which would be prejudicial to the author's honor or reputation. Accordingly, starting in 1928, the Berne Convention set international standards for the rights of integrity and attribution.

 

North American Recognition of Moral Rights:

Canada’s history with moral rights can be traced back to an amendment of its Criminal Code in 1915, which made it a criminal offence to change a copyrighted work or suppress a work’s authorship without consent. Canada further codified moral rights by amending its Copyright Act in 1931 to align its legislation with the Berne Convention. While Canada’s relationship to the Berne Convention after the 1920s became turbulent, the United States refused to accede to the convention until 1988, initially refusing to join largely due to the issue of moral rights and opposition from film producers and radio broadcasters, among other groups who were concerned that they would no longer have the ability to modify work to meet certain production standards. Even after joining, the United States was criticized for not adequately implementing moral rights protections in its legal framework. Since that time, there have been two significant additions to the United States’ treatment of moral rights. In 1990, the Visual Artists Rights Act (VARA) was implemented, granting authors of certain works the right to claim or disclaim authorship, along with the right to prevent distortion, mutilation or modification of their work. Secondly, in 1998, the United States made an addition to the Digital Millennium Copyright Act (DMCA) to limit the removal, alteration or falsification of certain information in a copyrighted work, including the author’s name. While VARA was a step in the right direction, its application is limited to visual works that fall within a narrowly defined category - its protection only extends to paintings, drawings, prints, sculptures and still photographic images produced for exhibition only and existing in single copies or limited editions of 200 or fewer copies signed and numbered by the artist. Although VARA does impose substantial protections for works that do fall within those categories, the application is extremely limited as to who can use it and in what situations.

 

Overall, the United States has shown a lack of enthusiasm for moral rights, placing a greater emphasis on the commercial exploitation of creative works. As a result, the United States has refused to include moral rights protections in bilateral and multilateral agreements with other nations. For example, both the North American Free Trade Agreement (NAFTA) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) exclude moral rights; TRIPS, in particular, incorporates by reference all copyright provisions from the Berne Convention, with the explicit exception of moral rights. This has created an imbalance between parties subject to these agreements, as an American party would be able to invoke moral rights in other countries, but parties from those other countries would not be able to invoke moral rights in the United States.

 

Inconsistencies of Moral Rights Laws:

While the Berne Convention offered a certain approach to conceptualizing moral rights as separate from economic rights, member nations nevertheless have discretion regarding how they choose to implement these protections. As such, there is no universal moral rights framework, and how moral rights are recognized can differ significantly depending on the country. One aspect of moral rights that varies among countries is the concept of “waivability”. Although moral rights are frequently described as “inalienable”, many countries allow authors to relinquish or “waive” these rights. In fact, some countries such as Canada have codified waivability in their copyright legislation. While the ability to waive moral rights may seem undesirable for the author, it can be a way, for example, to demand a higher licensing fee in exchange for the author’s waiver of moral rights, thereby permitting the licensee to use the work freely. However, creative professionals often lack this bargaining power and are forced to waive their moral rights for no additional fees, giving artists few options to protect their rights. Another aspect of moral rights that can differ between countries is the duration of the rights. In Canada, moral rights last for 50 years after the author’s death. In the United States, moral rights expire immediately upon the death of the author. On the other end of the spectrum, in France, moral rights last in perpetuity.

 

Moral Rights and Employment:

Different countries also have varying regulations regarding how moral rights are treated in employment or “work-for-hire” relationships. In Canada, the creator of a copyrighted work owns the moral rights to that work regardless of whether it was created in the context of employment; accordingly, employment contracts often include a waiver of moral rights. In the United States, VARA contains a “work made for hire” exception, whereby artwork created by an employee within the scope of employment is denied protection. Similar to the United States, many jurisdictions deny moral rights, including the right of attribution, to individuals employed to create a work. When an artist is commissioned to create a work, there is a conflict between artistic and economic freedom. On the one hand, an artist should retain their moral rights and artistic integrity in order to control their work. However, if a work has been commissioned for financial gain, the commissioner has an interest in maximizing the economic benefits of the work unencumbered by the artist’s personal attachment. This economic interest is seen in some jurisdictions, including the United States, where companies are deemed to be the “authors” of their employees’ creative works, severing the link between moral rights and individual creativity and consequently negating the purpose of moral rights. Even if creative works are not automatically assigned to an employer or the party commissioning a work, authors of creative works generally have little latitude to negotiate the issue of moral rights, often being forced to sign a waiver, surrendering such rights. This is problematic for American artists in particular, since the United States’ refusal to protect its own authors’ attribution rights does not technically breach international obligations under the Berne Convention.Similarly, international agreements such as the Berne Convention offer little help to authors receiving proper credit, since they do not dictate how employee authors should be credited, if at all. Accordingly, it falls on specific countries to decide whether an employee’s name must appear on a creative work, leading to a confusing and inconsistent system.