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Moral Rights and the Berne Convention: Has the United Kingdom done enough?

 

An examination of the inclusion of moral rights into our domestic intellectual property law and whether this has been enough to meet our Berne Convention obligations.

Written by Hilary Sharkey, 4th Year LLB and sub-editor of the Property portion of the Review.

 

 

 

Intellectual property law in the UK ensures that the economic interests of authors, artists and other creators are protected through the operation of copyright law. However, often for creative individuals, there is something in addition to pecuniary rights which requires protection, that is, the integrity of the work and the right to be named as creator. ‘Moral rights’ refer not to morality in the ordinary sense, but to this non-pecuniary, personal involvement of the creator in his work, beyond the scope of commercial or financial interest. Various countries of continental Europe have recognised these special types of rights since the early 19th century but the United Kingdom has been somewhat slower to accept moral rights into its domestic intellectual property law. This article will briefly examine the importance of moral rights, and then explore the UK’s path to adoption of moral rights into domestic legislation, and consider whether this sufficiently implements Article 6bis of the International Convention for the Protection of Literary and Artistic Works (the ‘Berne Convention’).

 

Moral rights are an important aspect of copyright law because they provide protection over and above economic rights. Whilst economic rights are essential to a creator of a piece of work in the early days of publication, moral rights can allow the creator (and his ancestors) to control his work in the future. Furthermore, moral rights can be seen as intrinsically important to a creator, irrespective of a work’s commercial or financial capacity. This argument was articulated in a novel and eloquent form in the first Indian case to recognise an artist’s moral rights:-

 

“The author has a right to preserve, protect and nurture his creations through his moral rights The creative individual is uniquely invested with the power and mystique of original genius, creating a privileged relationship between a creative author and his work..”[1]

 

From as early as 1813, several European legal systems had begun to accept the concept of a moral right in a piece of work, with France in particular being regarded as the founding nation of moral rights. The concept was, however, rejected in the 18th century English case of Donaldson v Beckett.[2] It has been suggested that this could be attributed to the desire in England to avoid the adoption of foreign concepts, and also to the vastly contrasting cultures in continental Europe and the United Kingdom in relation to authors’ rights.[3] Furthermore, the different legal systems used - civilian and common law respectively - will undoubtedly have had an impact on the different nations’ views. The Berne Convention, an international agreement governing copyright, revised in 1928, sought to address this difference of protection across Europe. It was, in effect, a compromise between the countries which were liberal with their protection of moral rights, like France and Germany, and those which did not presently recognise any sort of moral rights protection. It provides minimum standards of protection to be upheld by signatory nations, and explicitly states two types of moral rights to be protected; the right to attribution and integrity. Article 6bis (1) states:-

 

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.”

The UK appeared reluctant to legislate to expressly include the provisions of Article 6bis in domestic law. It has been suggested that the concept of moral rights in UK law was a very novel one.[4] However, the Gregory Committee of 1952 accepted that there were aspects of this type of protection currently available in the form of contract, defamation and passing off laws, and that these were sufficient and best placed to implement the provisions contained in Berne. However, twenty five years on, the Whitford Committee expressed concern that in fact the UK was not fully implementing or fulfilling its Berne Convention obligations, and therefore supported the introduction of specific moral rights legislation.

Moral rights were explicitly stated in Chapter IV of the Copyright, Design and Patents Act 1988 (CDPA). The two moral rights specified in Art 6bis were included in sections 77 and 80 respectively.  The right of attribution, contained in s77, implements the same wording in Article 6bis, providing that an author should have “the right to claim authorship of the work”. Prima facie, this would suggest a satisfactory level of protection, directly in line with Article 6bis. However, a qualification was added; an author in the UK can only rely on the right of attribution under the CDPA if he or she has asserted that right, and even then, the right is only binding on those who receive actual or constructive notice of the assertion.[5] The Berne Convention does not in any place specify any requirement for such a course of action, and actually states that the enjoyment and exercise of authors’ moral rights “shall not be subject to any formality”.[6] This would suggest that the UK is not complying with the minimum standards of protection contained in Article 6bis, because it has been made significantly more difficult for an author to receive protection. As a result, in view of the creators’ difficulty, this requirement may be actually construed in favour of the economic owner, not the creator. In addition, any delay in the assertion of the right of attribution can be taken into account by the courts in assessing any remedy available to an aggrieved author[7], which, according to Harding & Sweetland, adds insult to injury.[8] It could be argued that the UK is permitted to make this qualification and is still properly implementing Berne, because the right of attribution is one which is available “to claim”. However, it is submitted that that is a contrived interpretation of the phrase and, importantly, no other signatories have interpreted Article 6bis in this way. It is unlikely that the Berne Convention was intended to make things more complex for authors to receive protections and more simple for those who look to exploit authors. Furthermore, there are various exceptions to the right to attribution in the CDPA not set out in the Berne Convention, including the exclusion of work done by or with the authority of owner of copyright, where it originally vested in the author's employer.[9]

The second moral right recognised in the CDPA is the right of ‘integrity.’ This protects an author’s work from being mistreated by others, and is phrased as follows: the right 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”. Once more, following analysis, it would appear that the format in which the right has been implemented into our domestic law is inadequate in terms of the Berne Convention. There are exclusions to the right which are not provided for in the Article 6bis. Arrangements and translations are excluded, and this is clearly contrary to the spirit of protection integrity of a piece of work; no author or artist would be satisfied with a bad arrangement or translation of their work, yet they have no moral right to protect them in this situation. Further, section 80 does not cover destruction or re-contextualisation of a work, and therefore does not meet the minimum standard of Berne, that being any form of “modification” of the work.

An additionally questionable area of the CDPA’s implementation of Article 6bis is the opportunity to waive the protection of moral rights, or consent to an act which would otherwise infringe moral rights.[10] This raises a complex issue for authors. Since the option of waiving moral rights is available, publishers - who already hold a great deal of power over minor authors - are put in a position of greater power. They can demand that an author waive his moral rights in order to be published, asserting that they will not work with authors who seek to preserve their moral rights.[11] As a result of this, very few authors may ever know the benefits of their moral rights because, in order to be published and make their work known, they are in no position to do anything other than forfeit their moral rights. Conversely, it has been argued that the availability of waiver and consent gives an author greater freedom to choose and control the fate of their own work, and puts authors and publishers on more equal footing in terms of bargaining power.[12] The issue is unsettled and it is submitted that because the Berne Convention does not provide for any sort of waiver or consent of moral rights, the CDPA is treading dangerous waters by allowing such action to take place.

Thus in conclusion, whilst moral rights are an unusual form of intellectual property, it is evident that they are of great significance in the creative industry and ought to be protected. It was momentous when the CDPA 1988 expressly included moral rights in UK legislation, but it is clear that remnants of prior attitudes - that economic rights are more valuable and worthy of greater protection - remain. The implementation of moral rights in the UK is in various ways inadequate in terms of the Berne Convention. Reform, particularly of the need for asserting the right of attribution and the multiple exceptions found in the CDPA would be a welcome development in this area.



[1] Amar Nath Sehgal v. Union of India, 117 (2005) DLT 717 at 24-26

[2] (1774) 2 Brown's Parl Cases 129, 1 Eng Rep 837

[3] Rajan,  M.T.S. ‘Moral Rights: Principles, Practice and New Technology’ (OUP 2011) at 89

[4] De Freitas, D. ‘The Copyright, Designs and Patents Act 1988 (2)’ (1989) 133 Solicitors Journal 670

[5] CDPA, s78

[6] Berne Convention, Article 5.2

[7] CDPA, s78(5)

[8] Harding 1, & Sweetland E, ‘Moral rights in the modern world: is it time for a change?’ Journal of Intellectual Property Law & Practice (2012) 7 (8): 565-572.

[9] CDPA, s79 (1) - (3)

[10] CDPA, s87

[11] Harding 1, & Sweetland E, ‘Moral rights in the modern world: is it time for a change?’ Journal of Intellectual Property Law & Practice (2012) 7 (8): 565-572.

[12] Newman, S. ‘The development of copyright and moral rights in the European legal systems’, EIPR 688 (2011)

 

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