moral rights

This page explores Moral Rights (aka droit moral), a feature of Australian and some overseas copyright regimes.

It covers -

• background to moral rights
• moral rights under the Berne Convention
• the Australian legislation
• overseas developments and studies
• droit de suite

It is supplemented 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.

     background 

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:

• be recognised as the author of a work
• no false attribution of authorship (ie for no-one else to be identified as the author)
• prevent others from modifying, distorting, or otherwise interfering with the integrity of that work.

That 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 copyright regime.

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

Moral 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.

Patricia Loughlin offered a somewhat more measured criticism, commenting (PDF) that

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.

In 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

(1) 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.

Some 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 that year.

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 under contract.

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 distress".

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 force.

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 reviews.

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 ISPs.

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 paper and 2002 Heretic: Copyright Law & Dramatic Works paper. 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 legislation.

     overseas 

Rowland Lorimer's 1996 article on Intellectual Property, Moral Rights & Trading Regimes: A Publishing Perspective 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 paper, Jane Ginsburg's 2005 The Author’s Name as a Trademark: A Perverse Perspective on the Moral Right of 'Paternity'? (PDF) 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 Property paper 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 paper 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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