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Lecture 8. Moral rights
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Lecture 8. Moral rightsIntroduction
- Moral rights provide legal protection for aspects of the personal relationship between creators and
their works. They are accorded to authors of works, rather than to copyright owners. The two most
widely granted moral rights are (1) the right of attribution (widely known as the “paternity right” in
more sexist times) and (2) the right of integrity. The right of attribution ensures that an author is
named when his or her work is exposed to the public and the right of integrity protects authors
against the prejudicial distortion or mutilation of his or her work. These rights are exercisable against
copyright owners, licensees and third parties.
- Moral rights originated in German legal theory and in French jurisprudence and, by the end of the first
half of the 20th Century, they had come to occupy an important place in the authors’ rights laws of
most mainland European jurisdictions (and in the laws of those countries which inherited their
copyright laws from France, Germany, Portugal, Italy and Spain). In 1928, the Berne Convention was
amended to incorporate an obligation upon contracting parties to protect the rights of attribution and
integrity. Nevertheless, generalised, statutory moral rights were not introduced in the United
Kingdom until the coming into force of the CDPA 1988.
- In this outline, my aim is, first, to place the concept of moral rights an international and comparative
context and, secondly, to introduce in greater detail the scope of the moral rights granted under the
CDPA 1988
the concept of moral rights an international and comparative context
moral rights in international copyright law
- Art 6bis of the Berne Convention provides that:
“(1) Independently of the author’s economic rights, and even after 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.”
- In recognition of the fact that moral rights are not protected uniformly around the globe, Art
6bis(2)&(3) allow members of the Berne Union certain flexibilities in implementing these obligations
(in relation to term and means of redress).
- More recent treaties agreed under the auspices of WIPO have seen the obligation to protect
attribution and integrity rights extended to cover audio, and audio-visual performers (See WIPO
Performances & Phonograms Treaty 1996, Art 5 and Beijing Treaty on Audiovisual Performances
2012, Art 5).
- By contrast, the TRIPS Agreement does not require signatories to protect moral rights. Indeed,
although TRIPS generally requires the maintenance of standards of copyright protection at Berne
levels and higher (see Art 9), the obligation to adhere to Art 6bis is explicitly excluded (see TRIPS
Agreement, Art.9(1)). This omission can be explained by the fact that TRIPS is a trade-related
agreement and moral rights are not concerned (at least directly) with trade. However, it is also
significant that the United States was one of the main proponents of the TRIPS Agreement and, as is
explained further below, has displayed no great enthusiasm in its own adoption of moral rights for
creators.
moral rights in civil law jurisdictions
- The protection of creators’ moral interests forms an important element of the laws of most civil law
jurisdictions. However, French copyright law demonstrates a particularly well-developed concern for
the moral interests of authors. In this respect, it provides an interesting contrast with the laws of
common law jurisdictions, such as the United Kingdom and the United States and it is therefore well
worth tracing the contours of the French system here.
- In France, under L 121-1 of the Intellectual Property Code, authors are granted a right of “respect for
name, qualification and for the work”. This right encompasses protected interests in attribution and
integrity. These rights (or this right) are (or is) supplemented by further specific rights – a right of
divulgation (L-121-2) and a right of withdrawal (L 121-4). The right of divulgation allows the author to
determine, at his or her discretion, the time of a work’s disclosure and the conditions under which it is
, first disclosed. The right of withdrawal (or repentance) allows an author to withdraw a work from the
public (even where the economic rights in a work have been transferred to another. 1
- Under French law, the right to respect is described as “perpetual, inalienable and imprescriptible”.
This means that the right of respect endures even after the copyright term has expired, that moral
rights cannot be transferred and that an author cannot lose his right to respect through prescription.
In practice, it is rare for such claims to be brought long after the economic rights in a work have
expired. However, in a case that received considerable publicity a few years ago, an heir of Victor
Hugo brought a claim for breach of the right of respect for a work against a publishing house which
had published a sequel to Les Misérables without consent.2 Les Misérables was published in 1862 and
Hugo died in 1885. Ultimately, the Cour de Cassation held that the creative freedom of the author of
the sequel prevailed on the facts. However, at lower levels in the court hierarchy, the heir’s claim had
been successful. For a news report on the dispute, see:
https://www.theguardian.com/world/2007/jan/31/books.france
- Further evidence of the status accorded to moral rights in the French system is provided by the fact
that they can be relied on by all authors, regardless of principles of reciprocity under international
copyright law and regardless of the legal system’s usual rules on choice of law. Turner Entertainment
Co v Huston (1995) 164 RIDA 256 concerned the “colourisation” of a black and white film, The Asphalt
Jungle. The heirs of the film’s director, John Huston, objected to this treatment of his film (a
cinematographic work falling within the scope of the Berne Convention). The French courts upheld
the heirs’ claim, even though, under usual conflicts rules, the construction of the film contract at issue
would have been governed by US law (under which there are no moral rights for film directors). The
claim for breach of the right of respect took precedence because it was a rule of “ordre public”.
- Perhaps, however, the most striking demonstration of the value placed upon the right to respect
within the French copyright system is provided by the courts’ approach to determining the scope and
application of the right to respect for a work. In general, they will rely on the author’s own view as to
whether the “spirit” of his or her work has been “denatured” (dénaturer l’éthique de l’oeuvre). The
right is described as “discretionary” and an author does not have to demonstrate that the contested
treatment of a work has caused objective harm to his or her honour or reputation. There are a
number of striking examples of the application of this approach. For example, in Godot (1993) 155
RIDA 225, Samuel Beckett’s heirs succeeded in a claim for breach of the right to respect when his
famous play “Waiting for Godot” was performed with female actors in the two leading (male) roles.
The heirs were able to present evidence that Beckett had not wanted female actors to play these
roles. In EMI Music v Brel (1997) 171 RIDA 337, the heirs of the singer, Jacques Brel, objected
successfully to the use of his music in commercial advertising and, in Nataf v Editions de Vecchi (1998)
178 RIDA 254, the publisher of a work on psychoanalytic techniques was held to have breached the
integrity right of the work’s author by altering the title of the work so as to misrepresent the author’s
opinions and by inserting a disclaimer in the preface to the book, thus distancing itself from its
contents, and advising caution to readers in practising the techniques described.
- These examples clearly show the high value accorded to creators’ moral rights within French
copyright law.3 However, it is important to qualify this impression somewhat. In certain
circumstances, even in France, the legislator and courts have tempered the apparently discretionary
power of a creator by balancing them with other important, competing interests. This has occurred,
for example, when an architect’s claim to respect for his or her work has conflicted with the interests
of a building owner wishing to alter the structure of building protected by copyright, when a
contested work has exhibited relatively little creativity or when a creator has specifically consented to
alterations to his or her work.
moral rights in common law jurisdiction
- Generally slow to adopt - By contrast with France and, indeed, with most European states, the United
Kingdom has implemented generalised statutory moral rights only relatively recently. 4 Comprehensive
1
Although, where this right is exercised, an indemnity must be paid to economic right-holders who suffer
financial loss as a result.
2
Hugo v Editions Plon [2007] ECDR 9 (Cour de cassation).
3
A number of other jurisdictions around the globe take a broadly similar approach.
4
However, by contrast with the general position, Canada introduced statutory moral rights at a relatively early
stage (1931). This perhaps ought not to surprise us – given Canada’s shared civil/common law copyright
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