The Trouble with Moral Rights
| Date | 01 May 2005 |
| Published date | 01 May 2005 |
| Author | Patrick Masiyakurima |
| DOI | http://doi.org/10.1111/j.1468-2230.2005.00544.x |
TheTrouble with Moral Rights
Patrick Masiyakurima
n
It is usually arguedthat moral rights are severelyha ndicappedby their inconsistent entrenchment
in common law and civilian legal systems. This article argues thatthe mai ntrouble with moral
rights protection is thatthe justi¢cations for the existence of these rights are riddled with internal
inconsistencies generated by the vagaries of copyright exploitation. Harmonising moral rights
protection or using moral rights justi¢cations cumulatively may not resolve the theoretical
inconsistencies. Copyright protection must therefore be seriously overhauled if moral rights are
to be widely perceived as vehicles for protecting authors’rights.
INTRODUCTION
The idea that Anglo-American copyright jurisdictions sacri¢ce authors’ rights at
the altar of economic expediency while their civilian counterparts promote the
spiritual interests of authors is of antiquated pedigree.
1
True, incremental conver-
gence of copyright systems through international harmonisation and the exigen-
cies of modern copyright exploitation diminish the currency of this argument
signi¢cantly
2
but it still reverberates strongly in discussions on moral rights pro-
tection.
3
For instance, the patchwork nature of European Union copyright har-
monisation is often partlyascribed to the di⁄culties surrounding approximating
the di¡erent moral rights provisions of various Member States.
4
This article
argues that philosophical divergences between copyright systems notwithstand-
ing, the trouble with moral rights chie£y emanates from acute internal inconsis-
tencies in moralright s theories.The ge nesisof the inconsistencies can be traced in
part to pervasive commodi¢cation of information and the resulting con£icts
n
Universityof Aberdeen. I am grateful to DavidVaver, Robin Evans-Jones, Paul Beaumont and Oli-
ver Masakurefor their comments on earlier drafts of this article. All errors and omissions are mine.Al l
statutes cited here were obtained from http://www.wipo.int/clea/en/and all website references were
checked on 4 February 2005.
1 Eg R. Sarraute, ‘CurrentTheory on the Moral Right of Authors a nd Artists under French Law’
(1968) 16 AmericanJournal of ComparativeLaw 465. See also P.E. Geller,‘MustCopyright Be Forever
Caught Between Marketplace and Authorship Norms? in B. Sherman and A.Strowel (eds), Of
Authorsand Origins (Oxford:OUP,1994) 159 and G. Davies,‘The Convergence of Copyright and
Authors’Rights: Reality orC himera?’ (1995) 26 IIC 964.
2A.Franc on,‘‘Authors’ Rights BeyondFrontiers: A Comparison of Civil Law and Common Law
Conceptions’(1991) 149Revue Internationaledu Droit d’auteur (RIDA) 2,16^26.
3EgThe
Łberge vGalerie d’Art du Petit Champlain Inc (2002) SCC 34 (Binnie J).
4EgL.Bently,Between A Rockand A HardPlace (London: Institute of Employment Rights,2002) 32
and G. Lea,‘MoralRights: Moving From RhetoricTo RealityIn Pursuit Of European Harmo-
nisation’in E. Barendt and A. Firth (eds),Yearbook of Copyrightand Media LawVolumeVI (Oxford:
OUP, 2002) 61, 78. See also M. Slokannel, A. Strowel and E. Derclaye,‘Moral Rights in the Con-
text of the Exploitation of Works through Digital Technology’ http://europa.eu.int/comm/
internal_market/copyright/docs/studies/etd1999b53000e28_en.pdf for di¡ering national views on
moral rights harmonisation.
rThe Modern LawReview Limited 2005
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2005) 68(3)MLR 411^434
among copyright stakeholders. It is hoped that the article will contribute to the
growingl iterature on the intractable con£icts among copyright stakeholders.
In terms of structure, the ¢rst part of the article provides a brief description of
moral rights while the remainderof the essay delineates the inherent weaknesses
of moral rights theories and proposes modest reforms in this area. The term
‘author’ is used throughout the article to descri be the various ‘creators’ of copyright
materials while the word ‘work’ is used as an umbrella term covering di¡erent
copyright subject matter. Despite the di¡erent theoretical underpinnings of civi-
lian and common law copyright systems, cases and materials from both legal tra-
ditions are used in the article to demonstrate the existence of common moral
rights principles. Additionally, given that di¡erent jurisdictions have di¡erent
moral rights provisions, a comparative analysis of moral rights yields a complete
theoretical picture.
Moral rights
Gradual international recognition of moral rights as instruments for preserving
authors’ non-pecuniary interests does not mask the serious controversies sur-
rounding the bou ndaries of these rights. Dual ists treat economic and moral rights
separately while monists integrate the two rights. Additionally, economics and
respect for the sanctity ofcontracts force common law jurisdictions to adopt the
lowest international common denominator of moral rights protection
5
and to
harbour the doubtful view that other remedi es adequately protect authors’rights.
6
Despite these doctrinal and practical di¡erences, some common moral rights can
be gleaned from di¡erent copyright laws.
7
The right of divulgation al lows
authors to control initial publication of their work
8
while the paternity right
requires identi¢cation of authors, protects pseudonymous authors and prevents
false attribution of authorship.
9
The right of integrity is usually predicated on
minimising harm to authors’ honour or reputation arising from unauthorised
interferences with copyright works after their creation.
10
Authors may also rely
on their right of repentance to withdraw their views from circulation provided
they indemnify copyright owners for losses generated by the withdrawal and
resell the work to its previous owneron the old terms if they change their mind.
11
Lastly, authors may access their alienated works for limited purposes including
copying the work or collecting evidence.
12
A review of the relevant authorities
5 See Berne Convention(Paris Act 1971828 UNTS 221)Art 6bis.
6 W. R. Cornish,‘Moral Rights under the1988 Act’(1989)11EIPR 449.
7 Other pseudo ‘moral rights’ including the UK’s right of privacy ens hrined in the Copyright,
Designs and Patents Act1988(CDPA),s 85 will not be discussed i nth is article.
8 EgFrench IP Code Art L 121^2.
9 Z.Radojkovic,‘The right tothe paternity’ (1965) 47 RIDA168.
10 Eg Spanish Copyright Act Art14(iv);cf French IP Code Art L121^1.
11 M. A. Roeder,‘The Doctrine of MoralRight: A Study in the Law of Artists, Authors and Crea-
tors’(1940) 53Har vLR554.
12 S. Str˛mholm,‘Droit Moral^The International and Comparative Scene from a Scandinavian
Viewpoint’(1983) 14 IIC 1,26.
TheTrouble with Moral Rights
412 rThe Modern LawReview Limited 2005
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