are moral rights human rights (e rosati)
TRANSCRIPT
Are Moral Rights Human Rights?
Bird&Bird LLP
12 February 2014
Eleonora Rosati
Joint BLACA/IPKat Seminar
Contents
• What are human rights?
• Why moral rights may be human rights …
• … And why they may be not
What are human rights?
A popular topic (to say the least)
A bit like pornography (“You know it when you see it”)?
But is this pornographic?
Source: The Old Pornographer
Are there common features of human rights?
Cumulative features of human rights
• Universality and Inalienability: Inherent to human beings.
• Indivisibility: All human rights have equal status, and cannot be positioned in a hierarchical order.
• Interdependence and Interrelatedness: Each human right contributes to the realisation of a person’s human dignity and the fulfilment of one right often depends, wholly or in part, upon the fulfilment of others.
Why moral rights may be human rights
Not difficult to see why within rights-based views of copyright
• Creative works as extensions of author’s personality;
• Moral claim to receive authorship credit and determine timing, manner and form of exploitation.
And in fact it was French delegation to “lobby” for inclusion of Article 27(2) UDHR (1948)
• (Perpetual) moral rights• In the end attached to right to cultural
participation
“Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”
Article 15(1) International Covenant on Economic Cultural and Social Rights (1966)“The States Parties to the present Covenant recognize the right of everyone … (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”
Actually binding obligation?
Probably the only binding obligations …
Article 6bis Berne (Paris Act 1971)
(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 honor 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 authorized by the legislation of the country where 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.(3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.
Article 5 WIPO Performances and Phonograms Treaty
(1) Independently of a performer’s economic rights, and even after the transfer of those rights, the performer shall, as regards his live aural performances or performances fixed in phonograms, have the right to claim to be identified as the performer of his performances, except where omission is dictated by the manner of the use of the performance, and to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation.(2) The rights granted to a performer in accordance with paragraph (1) shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the Contracting Party where protection is claimed. However, those Contracting Parties whose legislation, at the moment of their ratification of or accession to this Treaty, does not provide for protection after the death of the performer of all rights set out in the preceding paragraph may provide that some of these rights will, after his death, cease to be maintained.(3) The means of redress for safeguarding the rights granted under this Article shall be governed by the legislation of the Contracting Party where protection is claimed.
Moral rights under Berne
• Attribution• De minimis integrity (“clearly an unsatisfactory one” according to
Dworkin)• (Divulgation through Articles 10 and 10bis?)
• Last as long as economic rights
• Silent as regards possibility of assigning or waiving them
Why moral rights may not be human rights after all:universal and inalienable?
Universality?
Look at Berne rights … and notable “exceptions”
• Article 9(1) TRIPS relieves member states from complying with Article 6bis
• The case of the right of divulgation• The Orphan Works Directive (and ERR Act)
• The case of the US• Resisted literal incorporation into national law of Article 6bis rights • Mix of federal and state laws (derivative rights, unfair competition, defamation, privacy) in
practice approximate rights of attribution and integrity• VARA (§106A): attribution and integrity for “works of visual arts”. But:
- “works of visual arts” = works of fine art that exist only in a single copy or are published in signed and numbered editions of <200 copies;
- Significant exceptions + fair use - Generally last for life of the author
Look at Berne rights … in the UK
• Just since 1988• Although prior to that UK law happened to protect (Cornish-Phillips)
• Is a human right (and a forbidden formality?) something you have to assert to enjoy (and sue)?• Right of attribution under UK law (Section 78 CDPA)
• Integrity under UK law in “apparently narrower terms” (Cornish et al)• No reference to “any other derogatory action”
- A “treatment”: only additions, deletions, alterations, adaptations- No translations or other arrangements
• No protection against non-transformative uses of one’s work
• Is a human right something that some authors are not entitled to enjoy?
Are employees less human than others?
Attribution and integrity under UK law
• Section 79(3) CDPA: The right of attribution does not apply to anything done by or with the authority of the copyright owner where copyright in the work originally vested in the author’s or director’s employer.
• Section 82(2) CDPA: The right to object to derogatory treatment of a work does not apply to anything done in relation to such a work by or with the authority of the copyright owner unless the author or director—
(a)is identified at the time of the relevant act, or(b)has previously been identified in or on published copies of the work;
and where in such a case the right does apply, it is not infringed if there is a sufficient disclaimer.
Inalienability?
Look for it in vain in Berne
• Nothing in 6bis explicitly prohibits waiver or assignment
• Ginsburg and Ricketson argue that assignment would be inconsistent with nature of moral rights, yet Berne does not prevent it
• Adeney argues that assignment inter vivos would contradict the fundamental doctrines on which moral rights are based
• Jaszi argues that neither inalienability nor perpetual duration critical to moral rights existence
In conclusion
Source: The Old Pornographer
If moral rights are human rights pornography …
And anyway:
• A third-generation human right can be considered in its infancy if it is (at least) 66 years old?
• Is copyright a human right? We may know the answer, but still …
• Does it make a difference in practice whether moral rights (or even copyright) are a human right?
