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moral rights
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moral rights
This page is under construction. It explores Moral
Rights, subject of new legislation in Australia as part of
broader copyright reforms.
background
Moral Rights, sometimes described as the 'droit moral',
originated in Europe. They are not concerned with morals
and are not a form of censorship.
Instead, they reflect a view of the creator (eg author of
a literary work, a painting or film) as having an
inalienable right to prevent others from modifying,
distorting, or otherwise interfering with the integrity of
that work. That right is independent of the physical
object: the artist for example retains moral rights even
though she's sold the canvas.
Theorists argue that the droit moral is wholly independent
of 'economic rights', ie the copyright creator's right to
control the reproduction, performance and distribution of
the work. Those rights can all be traded.
Moral rights
instead seek to protect the creator's 'honour' and
reputation. They consist of rights of attribution (ie
identification as author of a work, irrespective of who
buys it), integrity (a right to object to derogatory acts prejudicial to the
creator's honour and reputation, such as
distortion, mutilation or unauthorised modification),
disclosure and withdrawal (determining if and when
material is made public).
Moral Rights are an integral, although little used, aspect
of European intellectual property legislation and cultural
protection schemes. They are enshrined in the
international Berne Convention, the centrepiece of the
global copyright regime. The EU rights are inalienable,
that is cannot be sold or waived. They're strongly opposed by other
jurisdictions such as the US.
Australia has had an equivocal position. It has argued
that existing copyright and trade practices legislation
provides appropriate attribution and integrity protection.
At the same time it has moved to extend that protection,
albeit through what amounts to alienable rights.
the new legislation
In Australia the long-awaited Copyright Amendment
(Moral Rights) Bill
was passed by Parliament in the first week of December
2000. It is expected to come into effect with Royal Assent
in the immediate future.
The legislation follows contentious reports by the Copyright Law Review Committee
(CLRC) in 1988 and 1999, and the 1994 discussion paper on Proposed
Moral Rights Legislation for Copyright Creators. That
paper was essentially supported by creators but opposed by many
investors and broadcasters. Some questioned the adequacy
of provisions within the proposed legislation to preserve
rights of literary criticism, journalism and parody.
Successive Bills were devised, discussed and scrapped as
stakeholders grappled for what's proven to be a broad
compromise.
We'll be providing more information about the new Act and
its implications in the near future. The Copyright Council
has released a concise introduction,
which we recommend, about specific features of the
Act.
The legislation protects individual creators of
literary, dramatic, musical and artistic works and makers
of films. These include painters and other visual artists,
architects, illustrators, photographers, writers,
screenwriters, set designers, film makers (eg scriptwriters, producers
and directors) and map makers. Moral rights are not
attached to sound recordings.
It offers a right of attribution (essentially a
requirement that the creator be identified when a work is
published, broadcast or exhibited) and a right of integrity,
defined according to categories of art form such as
sculpture, literature and film
The right of attribution will apply to existing and future works, as
well as films made after the legislation comes into
effect. The right of integrity only applies to
works or films created after the legislation comes into
force. The period of protection matches
existing copyright provisions, ie the creator's life plus
50 years for works (for film, 50 years after first
release). The right of integrity ceases upon the
creator's death, in line with
the right to take action for defamation, which ceases with
the death of an author or film maker.
The Act does not include proposed by Senator Aden Ridgeway
and others regarding moral rights protection of indigenous
cultural expression, although the government undertook
to include that in future reviews.
overseas
Rowland Lorimer's 1996 article
on Intellectual Property, Moral
Rights & Trading Regimes: A Publishing Perspective
offers an introduction to Canadian and international
developments.
In the US the development of a moral rights regime
that addresses the challenges of cyberspace remains
contentious. The Visual Artists Rights Act (VARA)
provides some protection regarding physical objects (eg in
principle restricts the scope for a billionaire to repaint
a canvas to match the colour of their new rug). However,
it's considered to apply only to the objects rather than
the work of art as an intangible creation. It specifically
excludes representations in electronic databases and
online publications.
That's a problem if you're an Australian artist. US courts
have argued that appropriate protection of attribution and
integrity is provided by existing interpretations of
copyright law, unfair competition (in particular 'passing
off' under the federal Lanham Act and other consumer
protection or trademark legislation), breach of contract,
invasion of privacy, and defamation.
Extension of VARA has been hotly criticised (an example
is Thomas Cotter's rather silly 1997 article
on Pragmatism, Economics & the Droit Moral) and
defended (eg the more reasoned article
by Henry Hansmann & Marina Santilli on Authors'
& Artist's Moral Rights: A Comparative Legal &
Economic Analysis). Earlier US debate centred on moral
rights in films, sparked by controversy over the
colourization of black & white classics (Casablanca
got hit with the digital spray can, Citizen Kane
escaped).
That debate resulted in the 1988 National Film
Preservation Act (NFPA), discussed in Janine McNally's article
on Congressional Limits on Technological Alterations to
Film: the Public Interest & the Artists' Moral Right,
and criticised for empowering archivists rather than
artists. Raphael Winick's 1997 article
on Intellectual Property, Defamation & the Digital
Alteration of Visual Images offers an overview of
recent US developments.
However, some are grappling with wider issues. Mark
Lemley's 1995 article
on Rights
of Attribution & Integrity in Online Communications is
one of the more cogent examinations of what moral rights
mean online on a day to day basis: are there rights in
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