Property and Property law
Moral rights are rights of creators of copyrighted works generally recognized in civil law jurisdictions and, to a lesser extent, in some common law jurisdictions.
The moral rights include the right of attribution, the right to have a work published anonymously or pseudonymously, and the right to the integrity of the work. The preserving of the integrity of the work allows the author to object to alteration, distortion, or mutilation of the work that is "prejudicial to the author's honor or reputation". Anything else that may detract from the artist's relationship with the work even after it leaves the artist's possession or ownership may bring these moral rights into play. Moral rights are distinct from any economic rights tied to copyrights. Even if an artist has assigned his or her copyright rights to a work to a third party, he or she still maintains the moral rights to the work.
Moral rights were first recognized in France and Germany, before they were included in the Berne Convention for the Protection of Literary and Artistic Works in 1928.: 37 Canada recognizes moral rights (droits moraux) in its Copyright Act (Loi sur le droit d'auteur). The United States became a signatory to the convention in 1989, and incorporated a version of moral rights under its copyright law under Title 17 of the U.S. Code. However, it should be noted, the Berne convention is not a self-executing treaty, and the US Berne Convention Implementation Act excludes the US from the moral rights section.
Some jurisdictions allow for the waiver of moral rights.: 44–45 In the United States, the Visual Artists Rights Act of 1990 (VARA) recognizes moral rights, but applies only to a narrow subset of works of visual art. "For the purposes of VARA, visual art includes paintings, drawings, prints, sculptures, and photographs, existing in a single copy or a limited edition of 200 signed and numbered copies or fewer". A photograph must be taken only for exhibition purposes to be recognized under this subcategory. Independent art is not a focus of this waiver, for VARA only works in protecting artwork that can be considered as having "recognized stature"; Some of the items that are voided from VARA's protection include posters, maps, globes, motion pictures, electronic publications, and applied art. The VARA grants artists two specific rights: the right of attribution, and the right of integrity. The right of attribution allows an author to enforce the attribution of their work, prevent the misattribution of their work to another author, and permits the author to retain anonymous or pseudo-anonymous ownership of the work. The right of integrity does its best to prevent distortion or modification of their work, easing an artists' worries surrounding negative defamation directly applied to their work affecting their own personal, creative, or professional reputation through misrepresentation.
In the United States, moral rights are not transferable, and end only with the life of the author. Authors may, however, waive their moral rights if this is done in writing.
Some jurisdictions like Austria differentiate between narrow and wide moral rights. Whilst the former is about integrity of the work, the latter limits usages, which may harm the author's integrity. Some copyright timestamp services allow an author to publish allowed and disallowed usage intentions to prevent a violation of such wider moral rights.
Through the Rome Revision of the Berne Convention in 1928, the Berne Convention accepted two forms of moral rights; paternity and integrity. These rights are included in Article 6bis of the Berne Convention as follows:
Independent 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, modification of, or other derogatory action in relation to the said work, which would be prejudicial to the author's honor or reputation.
|Countries and areas||Terms of moral rights||References|
||Arts. 4, 17-21, Law no. 7564 of 19 April 1992, as modified by Law no. 7923 of 19 May 1995|
|Algeria||∞ inalienable, cannot be waived||Art. 21, Ordinance No. 03-05 on Copyright and Related Rights (19 Joumada El Oula 1424 corresponding to July 19, 2003)|
|Andorra||= economic rights||Arts. 6, 18 Law on Copyright and Related Rights of 1999|
|Angola||∞ inalienable||Art. 18, Law on Author's Rights (No. 4/90 of 10 March 1990)|
|Antigua and Barbuda||= economic rights||s. 18, Copyright Act, 2002|
|Armenia||∞ unlimited||Art. 12, Law on Copyright and Related Rights of June 15, 2006|
|Austria||Life + 70 years||§§19-21 UrhG|
|Australia (including external territories)||= economic rights||s. 195AM, Copyright Act 1968|
|Azerbaijan||∞ unlimited||Arts. 14, 27, Law on Copyright and Related Rights of 5 June 1996|
|Barbados||= economic rights
||s. 18(1), 18(2), Copyright, Act, 05/03/1998, No. 4|
|Belarus||∞ unlimited||Art. 15, |
|Belgium||∞ inalienable||Arts. 1(2), 7, Law on Copyright and Neighboring Rights (of June 30, 1994, as amended by the Law of April 3, 1995)|
|Canada||= economic rights, may be waived||Arts. 14.1, 14.2, Copyright Act (R.S.C., 1985, c. C-42)|
|China||∞ perpetual and retroactive||Arts. 10, 20, Copyright Law of the People's Republic of China|
|Denmark||= Life of author + 70 calendar years (∞ unlimited if the use of the work infringes cultural interests)||Section 63(1), 75, The Consolidated Act on Copyright 2010. Consolidation Act No. 202 of 2/27/2010|
|Egypt||∞ permanent, imprescriptible, and nonassignable||Art. 143, Law No. 82 of 2002 Pertaining to the Protection of Intellectual Property Rights, Copyrights and Neighboring Rights|
|Finland||∞ inalienable except to an extent that is limited and restricted in scope||Section 3, Copyright Law|
|France||∞ perpetual, inalienable, and imprescriptible||Art. L121-1, Intellectual Property Code|
|Ghana||∞ perpetual||Arts. 6, 18, Copyright Act, 2005, No. 690|
|Hong Kong||= economic, cannot be waived, must be asserted||s. 89-114, Copyright Ordinance, Chapter 528, Division IV|
|Indonesia||∞ eternally inherent to the Author||Art.5 (1) |
|Italy||∞ perpetual and inalienable||Arts. 22-23, Legge 22 aprile 1941, n. 633 |
|Macao||∞ perpetual, inalienable, and imprescriptible||Arts. 7(d), 41, Decree-Law n.o 43/99/M of August 16, 1999|
|Macedonia||∞ unlimited||Arts. 61(2), 75, Author's right and related rights, Act, 31/08/2010, No. 115|
|Moldova||∞ inalienable, assumed by heirs||Art. 9, |
|the Netherlands||= economic rights||Art. 25(2), |
|Oman||∞ perpetual, inalienable, and nonassignable||Art. 5 The Law For the Protection of Copyright and Neighbouring Rights, Royal Decree 65/2008|
|South Africa||= economic, can be waived, non-assignable||Art. 20 Copyright Act No.98 of 1978|
|United Kingdom||= economic, can be waived, must be asserted||Arts. 77-89, Copyright, Designs and Patents Act 1988 (C. 48), Chapter IV|
In most of Europe, it is not possible for authors to assign or even waive their moral rights. This is following a tradition in European copyright itself, which is regarded as an item of property which cannot be sold, but only licensed. The author can agree to waive them to a limited extent (and such terms are very common in contracts in Europe). There may also be a requirement for the author to 'assert' these moral rights before they can be enforced. In many books, for example, this is done on a page near the beginning, in and amongst the British Library/Library of Congress data.
Main article: Moral rights in Canadian copyright law
Section 14.1 of Canada's Copyright Act protects the moral rights of authors. The moral rights cannot be assigned, but can be waived contractually. Many publishing contracts in Canada now contain a standard moral right waiver.
Moral rights in Canada were famously exercised in the case of Snow v. The Eaton Centre Ltd. In this case Toronto Eaton Centre, a large shopping mall, had commissioned the artist Michael Snow for a sculpture of Canada Geese. Snow successfully stopped Eaton's from decorating the geese with bows at Christmas.
Article 20 of the Copyright Law of the People's Republic of China (1990) provides unlimited term of protection of the rights of authorship, alteration, and integrity of an author. As Article 55 of the same Law provides retroactive protection of unexpired term on the date of entry into force of this Law, the Chinese perpetual moral rights are retroactive as well. The 2001 version retains this provision and the original Article 55 becomes Article 59.
Art. 18, Copyright Act, 2005 provides perpetual moral rights. The moral rights in Art. 6 are for proper attribution and against any distortion, mutilation or other modification of the work where that act would be or is prejudicial to the reputation of the author or where the work is discredited by the act.
Moral Rights is specified under Copyright Ordinance (Chapter 528) Division IV, starting from section 89. Author of computer program does not have Moral Rights (section 91). Moral Rights cannot be transferred unless on the death of moral rights holder (section 105 and 106).
Moral rights are recognised under section 57 of India copyright act. Section 57 of India Copyright act refers to Author's Special rights. It states:
The issue of moral rights was discussed in Amar Nath Sehgal V Union of India & Ors.(Amar Nath Sehgal V Union of India & Ors CS/OS/No.2074/1992 decided on 21st Feb 2005. Court of Mr. Justice Pradeep Nandrajog). The case pertained to a mural that was commissioned in 1957 by Government of India during construction of Vigyan Bhavan at New Delhi. The mural in question was made of bronze had span of 140 feet sweep of 40 feet. The mural remained on display and was much appreciated till pulled down in 1979 and then consigned to storerooms of Union of India. Delhi High Court specifically referred to Berne Convention in delivering judgement. Court also awarded damages Rs. 500000 (half million) and also decreed in favor of the Amar Nath Sehgal that he would have an absolute right to recreate the mural at any place and right to sale the same.
The Court accepted existence of moral rights despite the work being commissioned work and copyright had passed over to union of India and suit being brought 13years after the said act(defense of limitations as pleaded by Government was rejected by the court).
Article 41 of the Decree-Law_n.o_43/99/M provides inalienable, unrenounceable and imprescriptible author's personal rights.
In Taiwan, the Copyright Act has provided authors' perpetual moral rights with regard of attribution and protection against alteration in bad faith, even if the works are in the public domain, as follows:
Moral rights traditionally have not been recognized in American law. Some elements of moral rights do exist in the United States, but are usually protected through specific contract provisions between parties, or else through individual states' laws or the derivative work rights in U.S. copyright law. U.S. copyright law emphasizes protection of financial reward over protection of creative attribution.: xiii The exclusive rights tradition in the United States is inconsistent with the notion of moral rights as it was constituted in the Civil Code tradition stemming from post-Revolutionary France. When the United States acceded to the Berne Convention, it stipulated that the Convention's "moral rights" provisions were addressed sufficiently by other statutes, such as laws covering slander and libel.: 30
Some individual states have moral rights laws, particularly pertaining to visual art and artists (See, e.g. California Art Preservation Act, Artists Authorship Rights Act (New York)). However, it is unclear if these laws, or portions thereof, are preempted by federal laws, such as the Visual Artists Rights Act.
In Gilliam v. American Broadcasting, the Monty Python comedy troupe made a claim of "mutilation" (akin to a moral rights claim) in 1975 in legal proceedings against American TV network ABC for airing re-edited versions of Monty Python's Flying Circus. However, the case was primarily decided on the basis of whether the BBC was licensed in such a way as to allow ABC to edit the videos (paragraph 20).
The Visual Artists Rights Act of 1990 grants authors of a "work of visual art" - e.g. photographs, paintings, sculptures, etc. - the non-transferable right to
These rights are distinct from any rights of copyright and ownership of a copy of the work.
Copyright holders have the right to control adaptations, or the preparation of "derivative works". This right is given under copyright law. See 17 U.S.C. § 106.
Section 43 of the Lanham Act governs false and misleading advertising, and can apply in some instances to attribution of protected works. However, it cannot be used to create moral rights for works outside of the Act. See Dastar v. Twentieth Century Fox.
By the start of the twentieth century, U.S. decisions on unfair competition found that representing as the author's work a version of the work that substantially departed from the original was a cause of action. Section §43(a) of the Lanham Act, which protects brands and trademarks, also provides similar protection to laws based on moral rights. For any goods or services, it bans false designation of origin or a false description or representation.: 30 In Gilliam v. American Broadcasting the British comedy group called Monty Python took action against the ABC network for broadcasting versions of their programs which had been correctly attributed to them but had been extensively edited, in part to remove content that their audience might consider offensive or obscene. The judgement of the United States Court of Appeals for the Second Circuit was in favor of Monty Python, finding the cuts might be an "actionable mutilation" that violated the Lanham Act.
Authors occasionally wish to distance themselves from work they've been involved with, some to the point of not wishing to be recognized as the work's author. One way they may do this is by signing the work under a pseudonym. Alan Smithee was a traditional, collective pseudonym used between 1968 and 1999 by discontented Hollywood film directors who no longer wanted to be credited. This courtesy was not always extended, however. The director of Highlander II, Russell Mulcahy, wanted his name removed after the completion bond company took over film production, but he was contractually obliged not to impugn the film and he was told that using a pseudonym would impugn it.
If the work was unfinished, sometimes the original author will choose a pseudonym as permission for the copyright holder to do whatever they wish to finish and market the unwanted work, cutting ties from the product.
European copyright systems provide for a stronger connection between the copyright and the author of the protected work. This makes sense if one considers that even though the German Urheberrecht or the French droit d'auteur are often translated as copyright, the literal translation is author’s right. It comprises not only proprietary rights but also moral rights. In many European jurisdictions, only the proprietary rights are assignable; in others, copyrights, including the proprietary rights, cannot be assigned at all but authors may only grant others a license to exploit the protected work. Moral rights are usually not assignable and can be waived only to a limited extent.