Week 8

Question 1

What is lecture 8 about?

Answer 1

Copyright as a moral right (personal rights protection). Moral protection of authorship versus personal protection of author. Justification of moral rights in XXI century. The Berne Convention and moral rights. Protection over moral rights within EU framework.

Question 2

What two types of rights authors are granted?

Answer 2

• economic rights protecting their economic interest and

- moral rights, which protect the non-economic “moral” interest of the author.

Question 3

What it is economical rights?

Answer 3

1

Question 4

What it is moral rights?

Answer 4

With the creation of a work a bond arises between the author and his work, which is the basic justification for granting moral rights.

Moral rights are:

in principle inalienable and cannot be waived because of the very personal nature of moral interest;

independent of the economic rights and remain with the author even after the transfer of his/her economic rights;

maintained after the death of the author (the actual duration of moral rights depends on national legislation)

not inheritable, but after the death of an author his or her heirs may exercise these rights.

Question 5

What are 3 moral rights?

Answer 5

• The right to be identified as the author of a work (also known as the right of attribution, or the right of paternity)
• The right to integrity
• The right of disclosure

Question 6

What it is the right of attribution?

Answer 6

is an author right to be identified as a author to his work as such.

· on each copy of his/her work and, in accordance with good practice, when the work is performed or broadcasted, etc.
· in national laws there are exceptions if it is impracticable or impossible to name the author (e.g. when dance music is played in a disco)

A right to attribution includes the right to have a work published anonymously or pseudonymously,

Question 7

What is the right to integrity?

Answer 7

allows authors to decide in which form it will be presented to the public

Question 8

What is the right of disclosure?

Answer 8

1

Question 9

1

Answer 9

• Publishing a work that omits the author’s name (or which includes the name of the author but in such way that it is not clearly visible)
• Presenting a work by somebody else as one’s own
• Disclosing the name of an author of work published anonymously
• Publishing under the pseudonym of another author.

Question 10

What is constituted the infringement of the right of integrity?

Answer 10

Situations where a literary work is paraphrased or reproduced with substantial typographical errors and imperfections

• a rewriting of a literary work that changes the conclusions that represent the views of its author
• the rearrangement of a classical piece of music in disco form
• a distortion of a work while it is performed
• deleting elements of a picture or a photograph (e.g. the background)
• deleting violent scenes from a movie by a broadcaster
• changing the picture aspect ration

Question 11

1

Answer 11

The right to integrity allows the author to forbid any changes in the form or content of his work, and if such changes are made he may demand their removal and restore the work to its original state;

In certain cases an infringement is deemed to have occurred even if there has been no modification of a work, e.g. when a work is placed in a derogatory context;

The right to integrity is also infringed when the tangible medium of a work (the physical carrier of a work) is modified

Question 12

What is right of disclosure?

Answer 12

1

Question 13

What other moral rights do you know?

Answer 13

• the right of access to a work even after it has been disposed of
• the right to withdraw a work if there is a change in the author’s beliefs.

Question 14

What is article 6bis about?

Answer 14

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, or other derogatory action in relation to the said work, which would be prejudicial to his honour or reputation.

Question 15

What are the characteristic of moral rights in the Berne Convention?

Answer 15

moral rights are independent of the author’s economic rights, and may be exercised separately from economic rights;

a separate waiver or transfer of individual moral rights is not expressly excluded;

transferability of moral rights is not explicitly prohibited;

ghostwriting agreements appear to be permissible;

moral rights shall be maintained after the death of the author at least as long as economic rights (with two exceptions);

moral rights are not inheritable, but following the death of the author they are “exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed”

Contracting States are under no obligation to protect moral rights within the framework of copyrigh

Question 16

What are two exceptions to

Answer 16

Article 6bis:

those countries whose legislation, at the moment of their ratification or accession to this Act, does not, on the death of the author, provide protection for all the rights set out in the preceding paragraph (that is the right of attribution and the right to integrity) may provide that some of these rights can, after his death, cease to be maintained.

Question 17

What two rights protect in Berne Convention?

Answer 17

• The right of paternity

- the right to integrity

Question 18

What are international sources of law on moral rights ?

Answer 18

· there are no EU directives or regulations in the field of moral rights,

· moral rights are explicitly excluded from the scope of the TRIPS agreement

· WCT does not deal with them at all,

· There are provisions regulating moral rights in WPPT,

· Article 6bis of the Berne Convention deals with moral rights

Question 19

What it is right of paternity ?

Answer 19

Right of paternity is mentioned in article 6 bis; this right does not extend so far as to cover an author’s right against false attribution

Question 20

What it is right of integrity?

Answer 20

according to article 6bis, the right to integrity is the author’s right to object to any distortion, mutilation or any other modification of, or any other derogatory action in relation to, his work, which would be prejudicial to his or her honour or reputation;
“derogatory modification” of a work entails direct interference with the content or form of the work, which is derogatory;
“other derogatory action” in relation to a work is any derogatory action that does not modify the content or form directly;
destruction of the physical carrier of a work is not an infringement of moral rights;
derogatory modification or other action must be prejudicial to the author’s honour and reputation to constitute an infringement of his moral right.

Question 21

The three basic moral rights are:

Answer 21

the right of paternity,
the right to integrity,
the right of disclosure;

Question 22

Moral rights first made their appearance in:

Answer 22

the early nineteenth century in French case law,

Question 23

Moral rights protect:

Answer 23

the non-economic “moral” (personal) interest of the author.

Question 24

Protection of moral interest is justified by the assumption that:

Answer 24

the work is an emanation of the author’s personality;

Question 25

Besides the three basic moral rights, some countries also recognise other right designed to protect the moral interest of the author, such as:

Answer 25

the right to withdraw a work if there is a change in the author’s beliefs;

Question 26

The right against false attribution (the right of the person who is not really the author of a work and to whom authorship is falsely attributed) is:

Answer 26

not an author’s right.

Question 27

An example of the infringement of the right to integrity is:

Answer 27

deleting an element of a photograph (e.g. the background);

Question 28

An example of the infringement of the right of paternity is:

Answer 28

disclosing the name of an author of a work published anonymously or pseudonymously;

Question 29

According to article 6 bis of the Berne Convention, member states shall grant the authors:

Answer 29

the right to integrity and the right of paternity;

Question 30

Waiver of moral rights:

Answer 30

is not typical for traditional European approach;

Question 31

Under the Berne Convention Contracting States:

Answer 31

are not under such obligation and they can protect it by other legal means, such as through an action for defamation, an action for passing off etC.

Question 32

In traditional European approach the moral rights:

Answer 32

are inalienable, not inheritable and cannot be waived;

Question 33

Moral rights are independent of author’s economic rights, which means that:

Answer 33

they remain with the author even after the transfer of his economic rights;

Question 34

Under the Berne Convention the waiver of moral rights is:

Answer 34

permissible;

Question 35

At the international level, the problem of moral rights is addressed by:

Answer 35

Berne Convention, WIPO Performances and Phonograms Treaty.

Question 36

What is the right of disclosure?

Answer 36

It is the third most widely recognized moral right.

Question 37

What does the right of disclosure mean?

Answer 37

It means that nobody except the author can decide when to disclose a work to the public for the first time.

Question 38

Give an example for the right of disclosure when one infringes the law.

Answer 38

A person who has stolen a manuscript of the novel that hasn’t been previously published and discloses it to the public without the author’s consent infringes the law.

Question 39

What are the three most common moral rights exercised by the author?

Answer 39

1. right of attribution
2. right of integrity
3. right of disclosure

Question 40

Do international copyright treaties address the problem of moral rights?

Answer 40

They address it very generally or do not address it at all.

Question 41

Are moral rights harmonized in the European Union?

Answer 41

No.

Question 42

Do the TRIPS agreement and the WIPO copyright system deal with moral rights?

Answer 42

No.

Question 43

Where are provisions regulating moral rights included in?

Answer 43

In WIPO performances and phonograms treaty; in the Bern Convention.

Question 44

What is the first feature of moral rights?

Answer 44

Independence.

Question 45

Are moral rights independent from economic rights?

Answer 45

Yes.

Question 46

What is the problem with moral rights?

Answer 46

Waiver and transfer of moral rights.

Question 47

Does a transfer of economic rights imply a moral rights transfer?

Answer 47

No.

Question 48

Are the countries where moral rights can be waived?

Answer 48

Yes.

Question 49

Is assigning a moral right to another person a problem?

Answer 49

Yes.

Question 50

Does the Bern Convention prohibit assigning a moral right to another person?

Answer 50

It does not explicitly prohibit the transferability of moral rights but it does seem to be against the very nature of these rights.

Question 51

Are ghostwriting agreements permissible according to the Bern Convention?

Answer 51

Yes.

Question 52

In which country are ghostwriting agreements void and null?

Answer 52

Poland.

Question 53

How long last moral rights?

Answer 53

At least as long as economic rights.

Question 54

How long do moral rights last according to article 7 section 1 of the Bern Convention?

Answer 54

Throughout the author’s lifetime and for 50 years after his death.

Question 55

Are there any exceptions to the rule stated in article 7 section 1 of the Bern Convention?

Answer 55

Yes, two of them.

Question 56

What is the first exception to the rule stated in article 7 section 1 of the Bern Convention?

Answer 56

Those countries that were not initially favorable towards moral rights can still maintain a restricted approach towards their protection by not extending the term of protection beyond the death of the author.

Question 57

Where are stated the two exceptions to the rule stated in article 7 section 1 of the Bern Convention?

Answer 57

In article 6 bis of the Bern Convention.

Question 58

What is the second exception to the rule stated in article 7 section 1 of the Bern Convention?

Answer 58

Moral rights should be maintained after the death of the author until the expiry of the economic rights. And yet at the same time it is possible under the provisions of the Convention that economic rights can expire even before the author’s death.

Question 59

What work concerns the second exception to the rule stated in article 7 section 1 of the Bern Convention?

Answer 59

cinematographic work, anonymous work and pseudonyms work, photographic work and work of applied arts.

Question 60

When does the term of protection begin in case of cinematographic work, anonymous work and pseudonyms work, photographic work and work of applied arts?

Answer 60

When the work is created or when it is made available to the public.

Question 61

Can moral rights be inherited?

Answer 61

No.

Question 62

What happens with moral rights after the death of the author according to the Bern Convention?

Answer 62

These rights shall be following the author’s death, exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed.

Question 63

Is the right of paternity mentioned in the Berne Convention?

Answer 63

Yes.

Question 64

What does the provision of article 7 section 2 of the Bern Convention deal with?

Answer 64

It deals with the term of protection for economic rights and provides specific solutions for anonymous and pseudonyms works.

Question 65

Is the right of paternity an author’s right?

Answer 65

No.

Question 66

Is the right to integrity mentioned in the Berne Convention?

Answer 66

Yes.

Question 67

What is the right to integrity?

Answer 67

It is the author’s right to object to any distortion, mutilation or any other modification of or any other derogatory action in relation to his work which would be prejudicial to his or her honor or reputation.

Question 68

What may an infringement of the right to integrity involve?

Answer 68

It may involve either a derogatory modification of a work or any other derogatory action in relation to work.

Question 69

How many forms of the infringement of the right to integrity are there?

Answer 69

Two.

Question 70

What is the first form of the infringement of the right to integrity?

Answer 70

The first one, modification, entails direct interference with the content or form of the work which is derogatory.

Question 71

What is the second form of the infringement of the right to integrity?

Answer 71

Any action that does not modify the content of form directly.

Question 72

Is destruction of a physical career of a work considered to be a modification or other derogatory action?

Answer 72

No.

Question 73

What must a derogatory modification or other action be like?

Answer 73

It must be prejudicial to the author’s honor and the reputation to constitute an infringement of his moral right under the Bern Convention.

Question 74

To what do the concepts of honor and reputation refer?

Answer 74

They refer to the author as a person and should be understood objectively.

Question 75

What rule constitute the moral rights of paternity and integrity under the Bern Convention?

Answer 75

They constitute the minimis rule only.

Question 76

What does the minimis rule mean?

Answer 76

It means that the contracting states can extend the protection and afford authors wider protection.

Question 77

Which approach do common law law countries follow?

Answer 77

The minimalist approach.

Question 78

To what kind of works are moral rights granted in the US?

Answer 78

Only to artistic works.

Question 79

Is paternity granted automatically according to Section 78 of UK copyright designs and Patents Act?

Answer 79

No.

Question 80

Do new technologies pose a challenge to moral rights?

Answer 80

Yes.