“Moral rights‟ are the inalienable rights of creators of copyrighted works that protect their moral or personal interests and that supplement the set of economic rights traditionally granted to copyright holders in all jurisdictions.
The standard set of moral rights consists of the author‟s right to claim authorship (right of attribution), the right to object to modifications of the work (right of integrity), the right to decide when and how the work in question will be published (right of disclosure), and the right to withdraw a work after publication (right of withdrawal).
Moral rights are distinct from any economic rights tied to copyrights. To underline the personal nature of moral rights, they remain with the author or performer even though he or she may have transferred copyright in the work, film or recording concerned to another person. After the author or performer‟s death, they are exercisable by the author or performer‟s legal personal representatives. Generally, moral rights will last as long as the copyright in the work, film or recording concerned. Some jurisdictions allow for the waiver of moral rights. International Protection of Moral Rights
Moral rights were first recognised in French case law and German legal theory, before being included in the 1928 Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”). The first paragraph of Article 6bis, which is universally understood as codifying the moral rights of attribution and integrity, reads:
Independently 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, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation.
The Berne Convention was not the first multilateral treaty to include a provision on moral rights, but rapidly became the most important international source of moral rights. In 1996 Article 6bis of the Berne Convention was incorporated by reference into the World Intellectual Property Organization (“WIPO”) Copyright Treaty (“WCT”) and expanded to apply to performing artists by the WIPO Performances and Phonograms Treaty (“WPPT”), with a slight, but significant, modification. 31 Article 5(1) of the WPPT reads:
Independently of a performer‟s economic rights, and even after the transfer of those rights, the performer shall, as regards his live aural performances or performances fixed in phonograms, have the right to claim to be identified as the performer of his performances, except where omission is dictated by the manner of the use of the performance, and to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation.
Currently, Article 5 of the WPPT and Article 6bis of the Berne Convention are the only relevant moral rights provisions on the international level. In moral rights parlance, they protect the rights of attribution and integrity of both authors and performers. Elements of Moral Rights
Moral rights are generally conceptualized as inalienable rights of authors in their works, which means that they share the same three legal characteristics that determine whether a particular right granted to authors qualifies as a moral right.
First, moral rights are rights of authors, which is to say that only those human beings who actually create the work in question qualify as owners of moral rights. Therefore, corporate entities and employers who hire third parties to create works for them do not qualify as authors. Moral rights are meant to protect authors who actually create the work in question as opposed to those who finance or commission the creation of that work and who may qualify as initial copyright owners.
Second, moral rights are rights in copyrightable works similar in structure to economic rights, which is why moral rights law is considered an integral part of copyright law—the body of law governing rights in works of authorship. By codifying moral rights in their pre-existing copyright acts, countries around the world have expressed the idea that moral rights are rights of authors in their works and therefore ought to be formally regulated as a part of copyright law.
Third, moral rights are inalienable in the sense that they can be neither transferred to third parties nor relinquished altogether. They are personal to the author. To the extent that moral rights extend beyond the life of the author, they are passed on to the author‟s heirs upon the author‟s death in accordance with the applicable local rules. In other words, moral rights cannot be transferred inter vivos, but they can be transferred mortis causa.
The rights of disclosure and withdrawal are connected. The author has the right to decide whether the work in question should be released to the public and, once it is released, to decide whether it should be retracted because it no longer reflects the author‟s personal convictions. Consequently, the right of disclosure entitles authors to decide when their works are complete and when they are ready for publication and commercialization, while the right of withdrawal empowers authors to retract the economic rights that they may have assigned or licensed to a third party in order to enable that third party to exploit the work. Right of Attribution
The right of attribution is the right of authors to claim authorship of their works, and it includes the right to determine whether and how the author‟s name shall be affixed to the work. More specifically, the author has the right to be credited as the author of the work in question in the sense that relief is available against anyone who falsely claims to be the author of the work, who omits the author‟s name from a specific work, or who falsely attributes the author‟s work to a third party.
In addition to the right to claim authorship, authors also have a right not to claim authorship in the sense that they may elect to remain anonymous or to use pseudonyms instead of using their real names.
The right of integrity, perhaps the most important moral right, provides authors with a right to prohibit modifications of their works without their consent, regardless of whether the modification would negatively impact or objectively improve the work.
- Copyright - Intellectual Property - Attribution (copyright law) - Berne Convention for the Protection of Literary and Artistic Works (1928) - Economic rights
A. Matthews