Do Moral Rights Adequately Protect the Author's Work against a Derogatory Treatment - Research Proposal Example

Moral Rights of an The protection of the moral rights of an in the UK are covered under the CDPA 1988, however there are some limitations in its provisions in so far as the protection of authors works from derogatory treatment is concerned. Since the economic potential of a work is associated with the original skill of an author, a derivative or adapted version may result in damage to the reputation of the author and the integrity of the original work. Within the framework of the rapidly evolving digital environment, the incidence of flagrant disregard of an author’s personal rights to the form and nature his/her work will take in the public eye is heightened. Therefore, it is important to address this issue, in order to arrive at some recommendations on how statutory limitations can be improved such that the integrity of original works is not compromised, especially within a digital environment. This research proposal therefore poses the question: “Do moral rights adequately protect the author’s work against a derogatory treatment?” This research proposal examines existing statutes to find out whether they provide adequate protection for an author’s moral rights. The preservation of these rights, which are the personal rights of the author, are vital to ensure that creators of original works of value and merit are not discouraged in their creative pursuits by the distortion of their works through the production of derogatory adaptations of their work. In order to adequately address the research question, this proposal includes an examination of case law and how the courts have addressed the issue of moral rights. Some comparisons are also made with international laws. Based upon the literature review and case law, it appears that UK statutory provisions are inadequate to protect an author’s moral rights and enhanced protection for moral rights is necessary, especially in a digital environment. Introduction The Copyrights, Designs and Patents Act of 1988 was framed to protect the rights of an author or original creator of a creative work.1 The CDPA protects copyright and rights of authors/creators for original work where there is a high level of human skill and labor that is involved in the production of the work2, with the objective of ensuring that the creator is rewarded for his innovative efforts and hard labor by acquiring the exclusive right to economic exploitation of his work.3 Every creator of an original work has a moral right to benefit from his work, as also laid out in the treatises of John Locke, because he/she has invested time effort and labor, including conceptual and material inputs which he/she has the right to profit from.4 Therefore, a moral right arises on behalf of the creator in the droit d’auteur tradition,5 providing him with the incentive to create.6 These rights are personal rights that will hold good on behalf of the author and endow him/her with the right to control the content and quality of adaptations of his/her work as well, since his/her name is associated with the work. In the digital era, it has become more difficult to protect the moral rights of an author, despite the lengthening of the copyright term of a work to duration of the life of an author plus 40 years.7 The facility of easy adaptation and copying of a work afforded by the electronic medium makes it difficult to ensure that the integrity of the original work is preserved and that the reputation of the original author is not placed in jeopardy. Although the provisions of the CDPA do address moral rights, the question that arises is whether such protection is adequate to ensure that an author’s moral rights are safeguarded. This is vital to preserve the value of artistic works, which may otherwise be modified so that they are more commercial, thus destroying the integrity of the original work for posterity. Literature Review Moral rights: The principle of moral rights of an author, which first originated in the French tradition of droit d’auteur, means that the most sacred personal property is in fact, the fruits of a writer/creator’s thoughts. Therefore moral rights are also personal rights of the author/creator of an original work. The moral rights of an author mean that he/she is the originator of the outward fruits of such thought and therefore is automatically endowed with the right to determine its expression and distribution. Therefore, this includes the right to claim authorship of the work which is the right to attribution, the right to withdrawal of the work after it has been published, the right to carry out any modifications to the original work, which is the right of integrity and lastly, the right to determine exactly how and where it will be published, distributed and exhibited, which is the right of disclosure8. The right to identification of an author with the work is also referred to as “the right of paternity” while the right to integrity in the UK is equivalent to the “right to object to derogatory treatment.9 However, it is not merely the economic benefits that should accrue to the author as rewards for his/her labor and skill which constitute the protection an author deserves for his/her work. Associated with the creation of an original work are certain inalienable rights which protect the personal and moral interests of the creator10. The moral dimension also includes the rights an author has to protect his/her good name and reputation and the integrity and character of their works, so that such work is not tampered with or distorted by others to adversely impact upon the integrity of the work and indirectly defame the character, good name and reputation of the author. When an author is able to successfully produce a creative work out of hard labor and skill, the popularity of such works automatically heightens the market value of the name of such an author/creator. According to Holderness, the two most important moral rights are the right to paternity and integrity, since the right of identification is what enables the original creator of a work to initially receive recognition for his/her efforts11. When others make use of the author/creator’s name to produce cheap, derivative works that could destroy the integrity of the original work and thereby besmirch the author’s good name and reputation in the market, then this would constitute a violation of the moral rights of the author, since moral rights under the CDPA protect the personality and reputation of authors12. As clarified by Holderness, with the right to identification for a work comes the responsibility for its content and an inaccurate representation of the author’s original skill as displayed in an adaptation may result in lower advances and damage to the author’s credibility and reputation.13 Statutory provision for moral rights: The CDPA has also introduced the concept of moral rights to allow a creator to protect the artistic integrity of their works.14 The right to identification of an author with his/her work has been provided for under Section 77 of the Act, however in order to be valid, such identification must be made in writing on the work or through the assignment of license for use of the work. Section 84 of the Act does specify that an author has the right to withdraw his/her name from an altered or adapted version of his/her work and also to not have a work falsely attributed as the work of said author. Section 80 upholds the right of an author to the integrity of the work by stating that the author has the right to not have the work subjected to derogatory treatment. However, there are also some significant limitations placed on moral rights within the scope of the Act. British law differs from French and German law, which has been the basis for the development of international law as far as protection for original work is concerned, in that there are some limitations on the exercise of moral rights. For example, where the right of integrity is concerned in so far as adaptations to the original work are concerned, the provisions of the CDPA do not allow injunctive relief that is associated with damages. As spelt out in the Act, where an author’s work is illegally modified, the extent of relief will be limited to a disassociation of the author’s name from the work.15 In the event that such modification is derogatory, the definition of derogatory treatment as covered under the statute specifically excludes translations of the work.16 Moreover, where an author wishes to file suit under the paternity rights associated with the moral framework of rights of an author, then any delay by the author in filing a suit will have to be taken into account in determining the nature of the remedy.17 The rights of attribution and integrity also do not apply in the case of works made for hire or computer programs.18 Finally, there is also a provision in the Act that allows for a complete waiver of moral rights by the author.19 The importance accorded under international law on moral rights of an author is exemplified in the Berne Convention, as follows: “Independently of the author’s economic rights, and even after the transfer of 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 honor or reputation.”20 Moreover, as Holderness also points out, most of the European countries with the exception of the UK and Ireland have authors rights legislation, which is distinct from copyright and this only underlines highlights the limitations of UK law in the sphere of protecting the moral rights of authors and protection of their works from derogatory treatment, since the limitations as specified above supersede the author’s rights too easily and in too many situations. The Internet and fair use: Before the advent of the Internet and technology, it was physically a tedious job to reproduce and distribute plagiarized copied of copyrighted works in a physical environment and making of such copies was also a relatively expensive process. However, as Lawrence Lessig points out, the online environment is so structured that a page can be copied without leaving a trace, so that the footprints of the pirate are difficult to track.21 Hannabuss has highlighted the ethical issues that arise in the realm of intellectual property because through the facility of the Internet, infringement has become increasingly easy, and it is a simple matter to “pass off” someone else’s creation as one’s own.”22. Holderness states unequivocally that if moral rights of authors are not protected in the information age, then the only kinds of works that will available will be controlled by media corporations.23 One of the aspects that is involved within the scope of moral rights is that of integrity or the right of the author to modify the original work or have some say over how his/her work will be modified. However, where the electronic environment is concerned, it is not possible to ignore the fair use of material that is permitted under the Copyright Act, in order to aid in the dissemination of knowledge, for use on research and for other educational purposes that could be deemed to constitute fair public use of the material. Danay has discussed peer-to-peer file sharing of music in the context of the freedom of expression that is guaranteed under Article 10 of the European Convention of Human Rights and incorporated into UK law through the Human Rights Act of 198824. He argues that the traditional idea/expression dichotomy cannot be relied upon to prima facie deny breaches of copyright under this Article, since such breaches may be justified to some extent in a democratic society. Case law: One of the earliest cases involving moral rights in the musical field was that of Bach v Longman25 where the composer was litigating his grievance not only for the purpose of economic recoveries from distribution of his material, but also to uphold his moral rights in the property. One of the desires of an author of a creative work is to gain some measure of control over how and in what manner his/her work is displayed to the public, mainly in order to protect his/her own reputation and integrity. For example, Van Ann Russell, in detailing this particular case, has pointed out that one of the grounds of Bach’s complaints was that his compositions were “very ignorantly and much to the discredit of this deponent as a composer, adapted to and for instruments not intended by this deponent.”26 Rohr also points out how the desire to exercise some controls over their work in the form of moral rights to their property was not merely conditioned by monetary interests but also by the desire to gain respect in society and to maintain a dignified and professional reputation with respect being accorded to the author’s works.27 Mark Twain sued publisher Belford, Clarke and Co for the unauthorized use of his nom de plume to publish a collection of stories. In a satirical speech to the Congress which highlighted the need to address moral rights of the author, he pointed out how “they turn around and do what they can to discourage it.”[fine literature].28 In the case of Confetti Records v Warner Music UK Ltd29 there was a distinction made between economic rights and moral rights of an author since the Court held that assignment of a copyright did not affect the author’s moral rights which still subsisted in the work, and a German ruled the same by stating that moral rights are not available to legal entities29. The courts in the U.K. have also upheld moral rights to disclosure, where unauthorized publication of manuscripts without an author’s consent were found to be in violation of the author’s rights.30 Similarly, the unauthorized disclosure of an unwritten play and its plot31 and unauthorized publication of private photographs were also found untenable before the law.32 However, it must be pointed out that in these cases, the rights of the author were not upheld on the basis of moral rights but on the breach of confidence, unlike the Confetti records case, where the moral rights of the author were upheld. Moreover, one area where the author’s moral rights are well protected is in the right to attribution, since false ownership of material through passing off has been held by the Courts to be in violation of an author’s rights by way of libel or an invasion of privacy.33 Russell has also mentioned a couple of cases where the moral rights of the author were upheld, i.e, grant of an injunction to British singer George Michael against a record company and the successful stopping of a different version of “Ashpalt jungle” from being produced in France by the heirs of John Huston.34 The grounds that were invoked in both cases were the author’s right to object to derogatory treatment of works. Similarly, the author’s right to withdrawal of his/her work is also a part of moral rights and has been upheld by the Courts35, but the underlying laws have been on the basis of the contractual arrangement between the parties, rather than on the basis of any inalienable right that belongs to the author. Moreover, there have been more instances where moral rights were overruled in favor of other laws or interests. For example, in the case of Southey v. Sherwood36, a young poet who had left his poem with a publisher was deemed not to have the right to refuse permission to have it published, similarly in the case of Chaplin v. Leslie Frewin (Publishers) Ltd37 it was held that Charlie Chaplin’s son who had previously assigned the rights to a story but later changed his mind, could not continue to refuse to grant rights to publication on the basis of his moral rights. Therefore, on this basis it may be noted that where authors have found relief in the Courts, they have mostly been won on other points of law rather than on moral rights. The conclusion that may be drawn is that the courts have given precedence to other interests over the rights of the author in many cases, and therefore, there is a likelihood that the inalienable moral rights authors are endowed with, are not being strictly enforced by the Courts. Hence it appears likely that authors may not be in a position to fully challenge the derogatory treatment of their works in the light of present statutes and case law. While there is undoubtedly a clear identification of the need for moral rights as identified by several experts as well as through the inclusion of moral rights within the sphere of copyright protection, there is a need for UK to come on par with other countries such as France and Germany where an author’s personal rights are already recognized under the laws of those countries and some clear steps have been taken towards ensuring that derogatory treatment of works are prevented. The incorporation of EC law into the framework of UK law and the implementing of the Berne Convention principles are however likely to aid in strengthening of moral rights in the UK, so that derogatory treatments can be more effectively prevented and the current level of apathy in recognition of the vital nature of moral rights is redressed and more authors are able to preserve their moral rights to object to derogatory treatment of their works. Methodology: Methodology: The Methodology that has been selected for this research study is a purely library based approach, in order to critically examine as much information as possible that is available on the subject of moral rights of the author. According to Saunders et al, defining the aims and objectives of the research study is important to generate evidence of the “the researcher’s clear sense of purpose and direction.”38 The purpose of undertaking this research effort is to examine the issue of moral rights that an author has over his/her original creative work and whether such rights are adequate to prevent derogatory treatment. Therefore, the research question that is posed is whether moral rights as covered under UK case law and statute is adequate to prevent derogatory treatment of an author’s work? Both qualitative and quantitative research methods were considered for this study. As pointed out by William Trochim (2001), every study has a qualitative as well as a quantitative element to it39, since even a numerical response may involve several shades of meaning and even purely verbal responses can be counted. Therefore, it is the approach adopted by the researcher and the nature of the conclusions that are sought to be drawn which will dictate the choice of method. However, the nature of the research question that has been posed in this study is not one that lends itself to examination through the identification of sample populations on whom research surveys or interview techniques may be carried out. Rather the sources that will be valid and credible in the quest for information to answer the research question that has been posed, is that available from the views of legal experts and from the precedents established by the courts. In view of the above, a library based research effort and a comprehensive literature review and case law analysis appears to be the best methodology to use in the proposed research study. Therefore, I propose to conduct an exhaustive review of case law and literature available on the subject of moral rights of an author in order to examine whether derogatory treatment of an author’s works were avoided or not and whether the scope of the law was adequate to provide the necessary protection. This method offers the possibility of a vast and reliable database of information, so that analysis of such information is likely to provide some valuable insight into the problem. Identifying trends in case law and examining the views of experts is likely to provide a fairly accurate picture of the part and current state of moral rights and levels of protection accorded under it. However, the limitation of this method is that it is of necessity, second hand information and the benefit of a first hand research effort through the use of individual samples and surveys is not available or feasible in this case. Moreover, time constraints may also prevent as exhaustive a research effort as may be necessary to arrive at accurate assessments to answer the research question. However, in view of the subject matter, it appears that a library based research effort may yield the best results. Results This preliminary analysis has already shown that there is a difference between UK law and international laws as far as moral rights of an author are concerned. In countries such as France and Germany, moral rights of an author are personal rights which are distinguished from the purely economic rights that are also protected under copyright. Moreover, although moral rights have been included within the scope of the CPDA 1988, there are several limitations that have been identified in the provision of adequate protection for moral rights. For instance, some of the examples that have been cited are the waiver of moral rights that is available, the fact that such rights do not apply to work done for hire or broadcast material, etc. As a result, the statutory provisions appear to be inadequate and there is a great deal of provision within the law to bypass an author’s moral rights. This preliminary study has also shown that as far as case law is concerned, the prevailing trend appears to be a lack of specific recognition by the courts of moral rights. In the few instances where an author’s rights have been acknowledged and upheld by the courts, they have been enforced under other provisions of the law, rather than moral rights per se. However, as the views of several experts show, this view appears to be slowly changing and the importance of moral rights is increasingly being recognized. The importance of the emergence of the digital environment has also been illustrated above, since the electronic environment has unleashed the facility of easy copying and distortion of the original work of an author. Therefore, in this context, the question of protecting the moral rights of the author becomes even more critical. Therefore, in answering the research question, this study proposes to undertake a detailed examination of existing provisions of the statute, both in the UK and two other countries, for example France and Germany. The provisions of the Berne Convention will also be taken into account and analyzed in comparison with UK law, in order to identify the lacunae in UK law. The study will also undertake an examination of case law not only in the UK but also in the United States, Germany, France and Canada, since moral rights in particular have been the key factor in many more cases in these countries. In addition, it is also proposed to examine the views that legal experts have offered in this connection. Their views will have particular relevance, since this preliminary proposal has identified the inherent threat to moral rights that is posed by the Internet. For example, Lessig has proposed a “creative Commons” where authors offer license for use of their works on their own terms to all those who want to avail of it40. Seadle has discussed the concept of moral rights and their application within a digital environment, offering three examples of international collaborations where differing moral rights in different countries could cause a clash of expectations41. Vetrone, who is an attorney for artists has examined how file sharing and illegal downloading of music has only exacerbated the already bad problem of disregard of the moral and other rights of artists over their property.41 The inclusion of more such views is likely to provide a clearer picture of the current status of moral rights, as well as the improvements that have occurred in the UK over the years, in so far as providing protection of authors’ rights is concerned. Further more, such a library based analysis is also likely to highlights areas where improvements must be made. Bibliography Legislation: * The Copyrights, designs and Patents Act of qf 1988 * The Berne Convention Books/Journals/websites: * Ardito, Stephanie C, 2002. “Moral rights for authors and artists” Informaiton Today, 19(1) [online] available at: http://www.infotoday.com/IT/jan02/ardito.htm * Bently, Lionel and Sherman, Brad, 2004. “Intellectual Property law” (2nd edn) Oxford University Press * Cornish, W.R., 1996. Intellectual Property 3rd edition. Sweet and Maxwell * Danay, Robert Jacob, 2005. “Copyright vs Free Expression: The case of peer to peer file sharing of music in the United Kingdom.” International Journal of Communications Law and Policy, Volume 10 * Dworkin, Gerald, 1986. “Moral rights in English law” 8 European Intellectual property review, 329 * Locke, John “The Second Treatise” Sec 27 in “the Two treatises of Government” (Peter Laslett, edn) 1970. Cambridge University Press IN Holyoak and Torremans, 2005. * Hannabuss, Stuart, 1998. Issues of Intellectual Property New Library World, 1998: 99(1143), p 185 * Holyoak and Torremans, 2005. “International Property Law” (4th edn) * http://digital-law-online.info/lpdi1.0/treatise11.html @ pp 1 * http://www.intellectual-property.gov.uk/faq/copyright/moral_rights.htm * Holderness, Mike, 1998. “Moral rights and authors’ rights: The keys to the Information age.” Journal of Information, Law and technology [online] available at: http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1998_1/holderness/ * Lessig, Lawrence (1999). Code and other Laws of Cyberspace” Basic Books * Penhaligan, Lee, 2003. “Moral Rights – Protection of literary and artistic works.” Charles Russell solicitors. [online] available at: http://www.cr-law.co.uk/articles/viewarticle.asp?articleid=52 * Rohr, Deborah, 2001. “The careers of British musicians: 1750-1850” A Profession of Artisans * Saunders, M., Lewis, P. and Thornhill, A. (2003) Research Methods For Business Students (3rd edn.) . Harlow, England: Prentice Hall at pp 25 * Seadle, Michael, 2002. “Copyright in the networked world: moral rights.” Library Hi Tech, 20(1) : 124-127 [online] available at: http://www.emeraldinsight.com/info/copyright/copyright_column/moral_rights.pdf * Trochim, William, 2001. “The Research Methods Knowledge base” (2nd Edn) Atomic Dog Publishing * Van Allen-Russel, Ann, 2002. “For instruments not intended: the second J.C. Bach lawsuit.” Music and Letters, 83(1): 3-29 at 8-9,21-22 * Vertrone, Amelia V, 2003. “The legal and moral rights of all artists.” Iuniverse Publishers Case law: * Bach v Longman, 98 Eng. Rep 1274 (K.B 1777) * Clarke v. Price (1819) 37 Eng. Rep. 270 (Ch.) * Chaplin v. Leslie Frewin (Publishers) Ltd. [1966] Ch. 71 (A.C. 1965) * Confetti records v Warner Music UK Ltd (2003) EWHC (Ch) 1274 (152) * Gilbert v. Star Newspaper Co. (1894) 11 T.L.R. 4 (Ch.) * Marengo v. Daily Sketch [1948] 1 All E.R. 406 (H.L.) (Eng.) * Oberlandesgericht Frankfurt (OLG Frankfurt) Feb 15 1990 (Appellate Court) 44 Neue Juristische Wochenschrift [NJW] 1839, 1991 (F.R.G.) * Prince Albert v. Strange (1849) 41 Eng. Rep. 1171 (Ch.) * Ridge v. English Illustrated Magazine, Ltd. (1911–1916) MacG Cop. Cas. 91 (K.B. 1913) * Samuelson v. Producers’ Distrib. Co. [1932] 1 Ch. 201 * Southey v. Sherwood (1817) 35 Eng. Rep. 1006 (Ch.) * Thompson v. Stanhope (1774) 27 Eng. Rep. 476 (Ch.) Read More