Moral Rights and U.S. Copyright Law Dr. Mira T. Sundara Rajan, D.Phil. (Oxon.) Honorary Member, Magdalen College, Oxford (formerly the Canada Research Chair in Intellectual Property Law)

Today’s Seminar (1) What are moral rights? (2) Why does the United States (generally) not have them? (3) Should the United States have them? (...or, in other words: Are moral rights important in a new technological environment?)

Defining Moral Rights

Moral Rights - Sources of Law Berne Convention Article 6bis TRIPs Agreement Article 9.1 National legislation National (and international) case law

COPYRIGHT Economic Rights “Moral” Rights Reputation Attribution Integrity Disclosure

“Moral Rights” droit d’auteur – droit moral Urheberrecht – persönlichkeitsrecht Author’s “personal” rights Author’s “special” rights (India) French law - moral rights through case precedents vs codified legislation

2 Key Characteristics of Moral Rights theory/doctrine of moral rights = personal connection with the author (1) inalienability => waiver? ... => “I don’t own what I own.” (2) potentially perpetual protection => how far can this be restricted?

The United States in International Context only country that doesn’t have moral rights as part of its copyright law

Moral Rights in the United States –no general protection, but... Visual Artists Rights Act 1990 (VARA) state legislation for the protection of art – California, Louisiana Lanham Act? – Dastar (U.S.S.C., 2003) actions for copyright infringement – derivative works/economic rights

Gilliam v. ABC (1976)

Why?

Copyright “Families” common-law countries => United Kingdom => no moral rights in the copyright law => United States civil-law countries => Continental Europe – moral rights are fundamental developing countries => indigenous + (post-) Socialist countries => extreme civil law + political

Statute of Anne (1709/10) originality of the text: author’s right originality of interpretation: copyright limited to the language of the statute => no scope for common-law copyright

Preface to the Statute of Anne “Whereas Printers, Booksellers, and other Persons, have of late frequently taken the Liberty of Printing, Reprinting, and Publishing, or causing to be Printed, Reprinted, and Published Books, and other Writings, without the Consent of the Authors or Proprietors of such Books and Writings, to their very great Detriment, and too often to the Ruin of them and their Families: For Preventing therefore such Practices for the future, and for the Encouragement of Learned Men to Compose and Write useful Books . . .”

Statute of Anne –3 policy rationales (1) consent of authors to publication activity (2) protection of authors and owners from economic harm (3) provision of an (economic) incentive to write => economic rationales (=> even consent is to ensure economic benefit)

Non-Economic Rationales for Copyright? Millar v. Taylor (1769) => Lord Mansfield = concern for the broader interests of authors => source? = the common law

Millar v. Taylor (1769) “He is no more master of the use of his own name. He has no control over the correctness of his own work. He can not prevent additions. He can not retract errors. He can not amend; or cancel a faulty edition. Any one may print, pirate, and perpetuate the imperfections, to the disgrace and against the will of the author; may propagate sentiments under his name, which he disapproves, repents and is ashamed of.”

Lord Mansfield = Moral Rights attribution integrity of works author’s reputation

Overruled –Donaldson v. Beckett (1774)

Public Policy Reasons to Limit Common-Law Rights statutory limits on the monopoly power of printers (especially over classic works) freedom to publish works in the public domain = a lessening of censorship = limiting the power of the Sovereign

2 centuries later... A Change of Heart

Moral Rights Revisited... common-law countries: through international agreements (post-)socialist countries: civil tradition, but practical “double-speak” developing countries: national pride (even with common-law influences)

... and Reformed availability of waivers – from Germany to Canada adjustment of duration – equivalent to economic rights or perpetual duration = German “monism” vs. French “dualism” => now, Canadian dualism U.K. = introduction of certain formalities: CDPA, s. 78

International Copyright System England France Germany Russia

Berne Convention for the Protection of Literary & Artistic Works (1886)

Berne Convention, Article 6bis (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.

Article 6bis (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.

Berne Convention, Article 6bis (1928-67) Attribution Integrity/Reputation — IF mistreatment damages the author’s “honor” or reputation [Article 6bis (1)] duration — “at least as long as” the economic rights “some rights may cease” upon author’s death = TORT [Article 6bis (2)] = accommodation of common-law countries

Berne Principles national treatment minimum standards approach => international “harmonization” (continues to be the basis for WTO/TRIPs)

Common-law Implementation of Moral Rights Canada 1931 India 1957 United Kingdom 1988 New Zealand 1994 Ireland 2000 Australia 2004