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Copyright Law Moral Rights Notes

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Moral rights--

When a work is accorded copyright - two types of rights arise
? Economic rights to the first owner
? Moral rights to the authors of certain works Moral rights protect an author's non-pecuniary or non-economic interests 1988 Act - provides authors and directors with...
? The right to be named when a work is copied or communicated - the right of attribution
? The right not to be named as to the author of a work which one didn't create - the right to object against false attribution
? The right to control the form of the work - the right of integrity The moral rights recognized in UK - more limited than other jurisdictions
? Right to correct the work, right to object to alteration/destruction of the original work/right to object against excessive criticism of the work/right to withdraw the work from circulation Infringement of a moral right ? damages Moral rights of integrity and attribution last for the same time as the copyright in the work The right to object as false attribution - less extensive - only lasts for 20 years after the author's death After the author's death, moral rights are exercised by their heirs The 1988 moral rights - introduced to give effect to Art 6bis Berne Convention - requires Member States to confer on authors the right of attribution and of integrity
? "Independently of the author's economic 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" Instead of replicating Art 6bis, the UK has provisions - each of which has a number of conditions, limitations and exceptions --- commentators have suggested that the UK has implemented Art 6bis in a "cynical, or at least half-hearted" way - Ginsburg [1990]
Support an criticism for moral rights

Criticisms?Founded on a romantic image of the author as an isolated creative genius who has imparted his personality on the work
? Moral rights enable the author to maintain the "indestructible creational bond" that exists between his personality and the work - Dietz (1994)
? ---Unrealistic conception of authorship
? It fails to acknowledge the collaborative and inter-textual nature of the creative process - P Jaszi (1992) ALSO - moral rights are alien - they have their origin in continental copyright systems and cannot be absorbed into a common law system Moral rights represent an unjustified legal intervention in the working of the free market
? Moral rights typically secure author's interests at the expense of entrepreneurs, disseminators
? They may inhibit the creation of derivative creations - if the author were to use their moral right of integrity to prevent the publication of a parody then this would conflict with the right to freedom of expression and the broader public interest
? Moral rights prioritise private interests over the public interest

The Right of Attribution-

s77 CDPA - "right to be identified as author or director" While the right of attribution cannot be assigned, it can be waived The right lasts for the same period of time as the copyright in the relevant work The right to be named - symbolic, economic and cultural consequences
? The celebration and reward for the work for the author
? The interpretation of the work - so far as it provides a biographical history of the author
? The channeling of royalties An author may be able to rely on a number of mechanisms other than the right of attribution to ensure they are named
? Publishing contracts - terms dealing with attribution which can be enforced against the publisher and poss also against third parties who knowingly induce such breaches
? Such a term might be implied into a contract

Subsistence of the right of attribution - 2 things
- That the work in Q is the type of work to which the right applies
- That the right of attribution has been asserted Relevant works
- The right is recognized in relation to original LDMA works and films
- In the case of films - the right of attribution is granted to the director
- Within these general categories there are exceptions:
? Right does not arise in relation to works made for the purpose of reporting current events - s79(5)
? It doesn't apply to contributions to a newspaper, magazine, encyclopedia etc - s79(6)
- These exceptions - difficult to reconcile with the Berne Convention
- They reflect government concessions to the lobbying power of the newspaper and other publishing industries
? There were fears that the need to name the author of a work would interfere with the prompt delivery of news
? It was also feared that enabling an author of a news story to be named would undermine the image of the news as being objective and neutral
- Act also states that the right doesn't apply to computer programs, computer generated works, typefaces - s79(2)
? No satisfactory justification has been given for denying authors of computer programs or typefaces the right
? TRIPS Art 10 states that computer programs will be protected as literary works under the Berne Convention
? While TRIPS Art 9 does not require that members apply Art 6bis, it seems that Art 10 requires that Art 6bis be applied as regards computer programs (?)
? Computer-generated works - may be justified on the grounds that such works do not fall within Berne because Berne is a Union for the protection of author's rights
- Berne Art 1 Requirement of assertion
- s78(1) - right does not arise until it has been asserted
- Even if it has been asserted, in a action for infringement, the courts take into account any delay in asserting the right when considering remedies - s78(5)
- The imposition of the assertion requirement - justified because Art 6bis only requires members of the Union to confer on authors the right "to claim" authorship

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