Creators' Rights Alliance - Between a rock and a hard place - G: Proposals for reform
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Reform of moral rights

As noted previously, the 1988 reforms introduced into UK law express protection of authors’ rights of attribution and integrity. Our first proposal would strengthen these rights by removing objectionable limitations to them, thereby enabling the UK to comply with its obligations under the Berne Convention.[1]

(a) Removal of the current requirement of assertion

Under current UK law, the right of attribution (that is, to be identified when the work is published) does not arise until it has been asserted. In general, the right can be asserted in one of two ways. First, when copyright in a work is assigned, the author or director may assert their right by including a statement that they assert their right to be identified.[2] Secondly, the right may be asserted at any  time by an instrument, in writing and signed by the author or director. The occasion of the assertion has an important impact on the extent to which third parties are bound to comply with the right. Even if the right has been asserted, in an action for infringement of the attribution right the courts take into account any delay in asserting the right when considering remedies.[3]

The requirement of assertion is an unnecessary precondition on a creator’s right to be named, that appears to have no justification in principle and is almost certainly contrary to the UK’s international obligations. More specifically, Article 5(2) of the Berne Convention requires that an author’s ‘enjoyment and exercise of these rights shall not be subject to any formality’, and the requirement of assertion is almost certainly to be regarded as a ”formality”.[4][5] Removal of the assertion requirement would also have the advantage of bringing UK law into line with other European countries. Not even Ireland, (Europe’s other “common law” country) when introducing its Copyright and Related Rights Act 2000 (which otherwise draws heavily on the UK law) thought it satisfactory to require assertion.[6]

(b) The prohibition of the general waiver

Although the moral rights recognized by UK law (in particular those of attribution and integrity), cannot be transfered, section 87 of the CDPA 1988 ensures that they can be waived by way of agreement in writing. Such waiver can be specific or general, and relate to existing or future works. It has been said that most “objective observers would acknowledge that such wide waiver provisions, both in theory and in practice, erode significantly, indeed drive a coach and horses through the moral rights provisions.”[7] This is because the industries which exploit copyright works tend to oblige authors and artists to enter standard form contracts which require them to waive their integrity rights. Even the requirement that the waiver be in writing, which provides authors with some residual protection, is compromised by section 87(3), which states that the general law of contract and estoppel applies to informal waiver.

The CRA proposes the removal of the possibility of any global advanced waiver. This would bring UK law into line with the rest of Europe.[8] For example, Article 1(2) of Belgian law states that “the global waiver/overall renunciation of the future exercise of moral rights is void” and Article L 132-11 of the French IP Code prohibits waivers in advance. In place we suggest the following:

  • That the court be granted discretion not to enforce the moral right where it would be an abuse of the right.[9] In deciding whether there was an abuse, the court could take into account the behaviour of the creator and whether they had consented to the alteration of the work.[10] Other factors would include the extent of the modification and the extent of the detrimental reliance of the exploiter on the formal consent of the creator.[11]
  • Or, alternatively, that authors can only make specific waivers of moral rights, and these are valid only where such waivers are (i) made in writing;[12] and (ii), in the case of the integrity right, in circumstances where the creator can appreciate the full impact of the alteration on the work in question.[13]

(c) Removal of exclusions

The integrity right does not apply to a work made for the purpose of reporting current events,[14] to publications in newspapers, or collective works of reference such as encyclopaedias.[15] In the latter case, the relevant publishers were keen to retain their power to edit or otherwise alter any submissions without having to consult contributing authors. It must be doubtful whether such an inroad into a creator’s right of integrity can be justified. Equally, translations of works are excluded from the notion of treatment and, thus, the moral right of integrity is not breached even by a hideously poor translation. The CRA calls for the removal of these limitations and restrictions, neither of which appear defensible either in terms of principle nor international law.

In addition, there is no legitimate reason for the broad exception relating to works made for the purpose of reporting current events. Journalism today is not merely straightforward conveying of news. Rather, the majority of journalism is creative and includes comment and opinion, backed up by research and investigation. There is no good reason why a third party should be free to distort the work, alter its meaning, selectively modifying it so that it bears a different message. In these cases, there is absolutely no justification for depriving the journalist of their moral rights.[16] As we argued above (in section B) to do so is to remove their human rights and potentially has implications for the quality of the democracy in which we live.

[1] A. Schelin, ‘Intevention’ at EC  Strasbourg conference on Management and Legitimate Use of Copyright, (9-11 July 2000), 84 at 88 (One important step is for EU legislation to harmonize moral rights at the high level).

[2] This may be difficult because the author need not be a party to such an assignment, for example, where he or she is not first owner.

[3] CDPA s 78(5).

[4] See J.C. Ginsburg, ‘Moral rights in a Common Law System,’ [1990] Ent L Rev 121, 128.

[5] It has been argued that ‘the assertion requirement will have to go when the legislation is amended and that such an amendment is already overdue.’ I. Stamatoudi, ‘Moral Rights of Authors in England: The Missing Emphasis on the Role of Creators’ [1997] 4, Intellectual Property Quarterly 478, 504.

[6] Irish Copyright Act 2000, ss.107-8.

[7] G. Dworkin, ‘Moral rights and the Common Law Countries’ (1994) 5 Australian Intellectual Property Journal 5, 28.

[8] Except Ireland which largely reproduced the UK rules on waiver: Irish Copyright Act 2000 s. 116.

[9] See e.g. German Law of 9 September 1965, (as amended) Art. 39(2) (alterations to the work and its title which the author cannot reasonably refuse shall be permissible.) A. Strowel, ‘Moral Rights in the Internal Market’, address to Strasbourg Conference on Management and Legitimate Use of Copyright, (9-11 July 2000).

[10] Law for the protection of Copyright and Neighbouring Rights No 663 of 22 April 1941 as amended (hereafter ‘Italy’), Art. 22 (if author was aware of and has accepted modification to work, he may not demand its suppression.)

[11] A. Dietz, ‘Legal Principles of Moral Rights’, General Report, in ALAI, Le Droit Moral de L’Auteur (Antwerp Congress, 19-24 September 1993), 54.

[12] Copyright, Related Rights and Cultural Matters (Law No 2121/1993 as amended) (hereafter ‘Greece’) Art. 14 (Acts dealing with the exercise of moral rights shall be null and void unless they are concluded in writing.”).

[13] Specific waivers are permitted under the laws on several member states: Copyright Act (Law No 404 of 8 July 1961) (hereafter ‘Finland’) Art. 3(3) (permitting waiver of integrity right in relation to use that is limited in character and extent); Act on Copyright in Literary and Artistic Works (Law no 729 of 30 December 1960 (hereafter ‘Sweden’) Art. 3. Under Art. 21(3) of Austrian Copyright Law of 1936 (hereafter ‘Austria’) the fact of giving consent “shall not prevent the author from opposing distortions, mutilations or other alterations of the work which seriously violate his moral interests in the work.”

[14] CDPA s 81(3). Note also Irish Copyright Act 2000, s. 110.

[15] CDPA s 81(4). Makers of encyclopaedias, it might be noted, have had their rights strengthened by the sui generis database right introduced into UK law on 1 January 1998 in the Copyright and Rights in Database Regulation 1997 (SI 1997/3032).

[16] At best, there might be justification for permitting reuse of parts which are fair for the purpose of reporting current events, as long as the authorship is acknowledged.

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