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This page explores Moral Rights (aka droit moral),
a feature of Australian and some overseas copyright regimes.
It covers -
by a more detailed note, elsewhere
on this site, that discusses moral rights litigation and
controversies. The note offers a
sense of international disagreement and the practicalities
of moral rights in different jurisdictions.
Moral Rights, sometimes described as the 'droit moral',
originated in Europe. They are not concerned with morals
and are not a form of censorship
on the basis of 'indecency' or other morality.
Instead, they reflect a view of the creator (eg author of
a literary work, a painting or film) as deserving respect
for creativity, with an inalienable right to:
recognised as the author of a work
false attribution of authorship (ie for no-one else to
be identified as the author)
others from modifying, distorting, or otherwise interfering
with the integrity of that work.
right is independent of the physical object: the artist
for example retains moral rights even though she has sold
the canvas. In France moral rights are perpetual - "existing
for so long as the work survives in human memory and is
an object of exploitation".
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 in practice 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
The EU rights are inalienable, that is cannot be sold or
waived. French jurist Claude Colombet characterised them
as "attached to the author of a creative work like
the glow is to phosphorus". That inalienability is
strongly opposed by other jurisdictions such as the US,
where rights either are not explicitly recognised or creators
are expected to waive them as a condition of employment
in a 'work-for-hire' environment.
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.
One of the more vociferous US critics dismissed them as
rights are fictitious, made up by authors who believe
that they are somewhat more righteous than others and
therefore, they deserve a higher level of rights. None
of them are truly creators. They always depend on (and
copy!) others' ideas and works for their works. That is
because no author is an island. Yet, they falsely claim
that their works are their own creations, emanating from
their own minds and perpetuate the myth that their works
must be treated as one could with sacred texts.
Loughlin offered a somewhat more measured criticism, commenting
moral rights, as that term is used in copyright law, are
legal constructs which may inhibit the progress of art
and constrain its transformative power. Such rights are
based upon a particular aesthetic which embodies romantic,
individualistic and canonical conceptions of artistic
creativity and which does not recognise or accommodate
the collective, continuing nature of all creativity. An
author exercising a moral right wrongfully gains a right
of control over meaning, context and use which takes absolute
precedence over the needs of other artists who may wish
to change the work's meaning and context and over the
role of readers and viewers as meaning-makers of the work.
... moral rights, by canonising the artist and consecrating
the art work, may function to separate the discursive
practices of art from daily life and thereby inhibit art's
cultural and political power.
practice that judgement seems extreme, as there is little
litigation by authors over breaches of their moral rights
and most national regimes feature notions of reasonableness
and industry norms (eg directors and performers are not
attributed onscreen in television advertisements).
moral rights under the Berne Convention
The Berne Convention (discussed here)
makes explicit provision for moral rights.
Article 6 bis states that
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.
(2) The rights granted to the author in accordance with
the preceding paragraph shall, after his death, be maintained,
at least until the expiry of the economic rights, and
shall be exercisable by the persons or institutions authorised
by the legislation of the country where the protection
is claimed. However, those countries whose legislation,
at the moment of their ratification of or accession to
this Act, does not provide for the protection after the
death of the author of all the rights set out in the preceding
paragraph may provide that some of these rights may, after
his death cease to be maintained.
states in Europe (notably France) thus provide moral rights
in perpetuity - evident in a Paris court's 2004 award of
symbolic damages 119 years after the death of Victor Hugo
- whereas others restrict protection to the author's lifetime
or to the duration of
copyright (eg life plus 70 years).
the Australian legislation
In Australia the long-awaited Copyright Amendment
(Moral Rights) Act
was passed by Parliament in the first week of December 2000
and came into effect with Royal Assent on 21 December of
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.
The Copyright Council has released a concise introduction,
which we recommend, about specific features of the Act.
It has also provided a brief overview (PDF).
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 integrity is the author's
right not to have the work subjected to "derogatory treatment",
ie treatment "prejudicial to the author's honour or reputation".
That includes anything resulting in a "material distortion
of, the mutilation of, or a material alteration to, the
work, or doing anything else in relation to the work, that
is prejudicial to the author's honour or reputation".
Determining what's prejudicial is unlikely to be easy, given
the subjective nature of 'prejudice' and 'honour'. There's
little guidance in the Act, which emphasises notions of
'reasonableness' in disputes about attribution and integrity.
Overseas experience suggests that a court is unlikely to
receive much clear direction from experts.
Reasonableness includes the nature of the work, the purpose
for which it is used, the manner in which it is used, the
context in which it is used, practice in the industry in
which the work is used (including voluntary codes), and
whether the work was made in the course of employment or
Defences in disputes about attribution include difficulty
or expense in identifying the author. In relation to derogatory
treatment, questions include whether that was required by
law and if the work has two or more authors, their views
about the treatment. Remedies for an infringement of moral
rights may include an injunction, a public apology and damages
for loss. The particular loss for which damages may be awarded
is not specified and there's disagreement about whether
an artist would be able to recover damages for "grief and
The right of attribution will apply to existing and future
works, as well as films made after the legislation comes
into effect. The right to attribution does not apply to
acts or omissions before commencement of the Act but does
apply to works created before commencement. The right to
no false attribution of authorship excludes acts or omissions
before commencement but does apply to all works created
before commencement. The right of integrity only applies
to works or films created after the legislation comes into
The period of protection matches existing copyright provisions,
ie the creator's life plus 70 years for works (for film,
70 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 amendments proposed by Senator
Aden Ridgeway and others regarding moral rights protection
of indigenous cultural expression,
although the government undertook to include that in future
A detailed introduction is provided by Maree Sainsbury's
lucid Moral Rights & their Application in Australia
(Leichhardt: Federation Press 2003). Tanya Aplin's 1999
paper Internet Service Provider Liability for Moral
Rights Infringement in Australia is of interest for
Academic Matthew Rimmer has published several papers on
application of moral rights in the fields of art, architecture
and drama. They include his 2002 Daubism: Copyright Law
And Artistic Works paper,
2002 Crystal Palaces: Copyright Law And Public Architecture
and 2002 Heretic: Copyright Law & Dramatic Works
Molly Torsen's 2004 Fine Art Online: Digital Imagery
& Current International Interpretations of Ethical Considerations
in Copyright Law (PDF)
offers a useful point of entry into literature about moral
rights and fair use in the digital environment.
Overseas experience suggests that it may be some time before
there is a substantial body of case law under the Australian
Rowland Lorimer's 1996 article
Property, Moral Rights & Trading Regimes: A Publishing
offers an introduction to Canadian and international developments.
It is complemented by Mike Holderness' 1998 Moral Rights
& Authors' Rights: The Keys to The Information Age
Jane Ginsburg's 2005 The Author’s Name as a Trademark:
A Perverse Perspective on the Moral Right of 'Paternity'?
and Catherine Fisk's 2006 Credit Where It's Due: Attribution
Rights without Intellectual Property Rights (PDF).
In the US the development of a moral rights regime that
addresses the challenges of cyberspace remains contentious.
The national Visual Artists Rights Act (VARA)
of 1990 followed isolated state legislation such as the
1979 California Art Preservation Act and 1983 New
York Artist's Authorship Rights Act.
Leading US lawyer William Patry commented
in 2006 that
The Visual Artists Rights Act is a somewhat embarrassing
nod toward droit moral: a minimal grant of rights of attribution
and integrity long recognized in civil law copyright systems.
Passed in 1990, but effective 1991, Section 106A is severely
limited in scope, marred by some of the ugliest drafting
ever (thanks to book publishers who had no real dog in
the fight anyway), and astonishingly, ridden with formalities,
i.e., a marking requirement; it such a distinctly American
product that it gives the French reason to say "We
told you so."
It 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 or for a government
agency to mutilate
a Calder mobile). However, it is 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 is a problem if you are 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). Another perspective is offered by cultural
economist William Landes in his 2001 paper What Has the
Visual Arts Rights Act of 1990 Accomplished? (PDF).
Earlier US debate centred on sculpture (in 1960 prominent
sculptor David Smith publicly 'disowned' a work after a
collector "improved" it by stripping its red paint) and
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. An outstanding account of EU developments
is provided by Pascal Kamina's Film Copyright in the
European Union (Cambridge: Cambridge Uni Press 2002).
The Moral Rights provisions
in the Canadian Copyright Act provide for a right of integrity
and a right "where reasonable in the circumstances"
to be "associated with the work as its author by name
or under a pseudonym" (including a right to remain
anonymous in relation to that attribution). Moral rights
under the legislation may not be assigned but may however
be waived in whole or in part. They subsist for the same
term as the copyright in the work.
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 in the US: are
there rights in email? William Fisher's Theories of Intellectual
in New Essays in the Legal and Political Theory of Property
(Cambridge: Cambridge Uni Press 2001) edited by Stephen
Munzer examines US thinking about the nature of property
and moral rights.
It is complemented by Playing Darts with a Rembrandt:
Public & Private Rights in Cultural Treasures (Ann
Arbor: Uni of Michigan Press 1999), an excellent study by
Joseph Sax, and
Anthony Grafton's The Footnote: A Curious History
(Cambridge: Harvard Uni Press 1997).
For historical perspectives see works by Woodmansee and
Rose cited earlier in this guide. Jane Ginsburg's 'A Tale
of Two Copyrights: Literary Property in Revolutionary France
and America' in Of Authors and Origins (Oxford: Oxford
Uni Press 1994) edited by Brad Sherman & Alain Strowel
offers a succinct analysis of Continental and Anglo-American
traditions, complemented by Gregory Brown's delicious 1999
After the Fall: The Chute of a Play, Droits d’Auteur
& Literary Property in the Old Regime.
droit de suite
The Droit Moral is independent of the Droit de Suite
(discussed in a detailed note here),
a resale royalty for the visual arts.
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