Moral rights Flashcards
What are moral rights?
The central idea behind the concept of “moral rights”—a term that is derived from the French phrase droit moral—is that the author of a copyrighted work has certain personal and inherent rights in relation to the work. These rights exist, so the theory goes, because the work is tied to the personality of the author. Moral rights are usually distinguished from merely economic rights.
The content of moral rights varies from jurisdiction to jurisdiction, but the two most commonly recognized moral rights are the right of attribution and the right of integrity.99 An author with a right of attribution has the right to be credited as the author of their work; an author with a right of integrity has the right to prevent distortions or mutilation of her work, but usually only if, and to the extent that, this would be prejudicial to the author’s reputation.
“Economic rights” Can be transferred in whole or in part
* Reproduction (copy)
* Distribution
* Public performance
* Public communication
* Making derivative works
“Moral rights” Not transferable (but waivable in the UK)
* Paternity
* Integrity
* Divulgation
Explain the international framework of the moral rights.
Article 6bis of the Berne Convention requires all member states to provide authors of literary
and artistic works “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 honor or reputation.” However, the TRIPs Agreement
excludes Article 6bis.
Thus, although moral rights play an important role in many copyright systems, compliance with the Berne Convention’s full embrace of moral rights is, if not optional, at least outside the WTO dispute resolution framework. The exclusion of Article 6bis from TRIPs was not an oversight; it reflected the negotiating position of the United States which had an ambivalent (at best) commitment to moral rights.
The WIPO
Performances and Phonograms Treaty (“WPPT”) of 1996 also addressed the issue of moral rights. Section 5 of that treaty provides that performers are entitled to a right of attribution and integrity with respect to their performances. These rights are independent and distinct from the performer’s economic rights.
What is integrity in the context of moral rights?
i. Distortion, mutilation or other modification of the work
* deletion of parts, re-arrangement of music, etc…
* imperfectionsin reproduction or recording techniques
* fragmentation of the work e.g. Pink Floyd Music Limited v EMI Records Limited [2010] EWHC 533 (Ch)
* Due account given to the nature and intensity of the modifications, incl. whether they are reversible or irreversible
ii. …or other derogatory action in relation to the work…
* Presenting the work in an offensive / hostile context? e.g. Georg Kreis v Schweizerzeit Verlags, Bundesgericht, 22 June 2005 (Switzerland)
* Destroyng the work? E.g. destruction of murals or works of architecture
* Derogatory caricature, parody, …
iii. …which would be prejudicial to the author’s honour and reputation
* To be determined objectively (compare libel and defamation) (author’s “feelings” do not suffice) e.g. modification or other actions that misrepresent an author’s standing
* Actions that cause enduring association with harmful content?
As an example of right of integrity in moral rights, explain the case Huston v Turner Entertainment Cour de Cassation (France) 28 May 1991
The contested legal issue in the captioned case is concerning about the colourisation of the long feature film Asphalt Jungle, directed by John Huston, and co-written by Huston and Ben Maddows and was related to the attribution of authorship to the creators of the film and consequently the protection of their moral rights against distortion of the motion picture under the French law.
This legal case demonstrates that what is perfectly acceptable in the United States may not be so acceptable in an environment where an artist has been given the opportunity to preserve the integrity of the work he has created regardless of who or which entity financed or currently possesses the economic rights to the work.
This is what happened. The Turner Entertainment Company (TEC), which colourised the film, acquired the rights to Asphalt Jungle when it merged with Metro Goldwyn Meyer (MGM). It had claimed that the colourisation of a motion picture was not a mutilation, but an adaptation of the work, leaving the original black and white version of the motion picture intact.
The French court disagreed with that view and held that, in France, Huston was the film’s author and through his estate he was entitled to assert his moral rights and his heirs were awarded 600,000 Francs damages for injuring the film’s integrity.
The final decision of the Huston case given by the court of first instance of Versailles drew an important distinction between the right of adaptation and the right of integrity with regard to altering audiovisual works.
To colour a film is to neither make it better nor worse than it was in black and white, rather it is an aesthetic choice a director makes to present his art form. Indeed, black and white films present more than just the fact that there is no colour, but they represent a very distinct rule of lighting, contrast, framing and camera use.
