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Moral rights

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Definition[]

The term moral rights is taken from the French phrase droit moral, and generally refers to certain non-economic rights that are considered personal to an author. Chief among these are the right of an author to be credited as the author of his or her work (the right of attribution), and the right of an author to prevent prejudicial distortions of the work (the right of integrity).

Overview[]

Moral rights are intended to protect an author's name, reputation, and work. The author of a work has the right to be identified whenever the work is:

The author also has the right to object to derogatory treatment of his/her work (any addition to, deletion from or alteration to or adaptation of the work) which amounts to its distortion or mutilation, or is otherwise prejudicial to the honor or reputation of the author. Also under moral rights is a person's right not to have a work falsely attributed to him/her as author.[1]

Often, in civil law systems, moral rights reflect a part of the author's personality and reputation and are non-transferable, and may be not waivable. Economic rights, in some instances, may be subordinated to moral rights.

These rights have a long history in international copyright law, dating back to the turn of the 20th century when several European countries included provisions on moral rights in their copyright laws. A provision on moral rights was first adopted at the international level through the Berne Convention for the Protection of Literary and Artistic Works ("Berne Convention") during its Rome revision in 1928.

As noted in Article 6bis of the Berne Convention:

“ 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.[2] ”

United States[]

History of moral rights in the U.S.[]

In the late 1950s, the Copyright Office and Congress reviewed the issue of moral rights as part of the larger, comprehensive review of the copyright laws leading to a general revision of the 1909 Copyright Act.[3] In support of the review, William Strauss completed a study for the Office entitled "The Moral Right of the Author" in 1959.[4] The report found that U.S. common law principles, such as those governing tort and contract actions, "afford an adequate basis for protection of [moral] rights" and can provide the same protection given abroad under the doctrine of moral rights.[5]

Later, Congress considered the specific question of "whether the current law of the United States is sufficient, or whether additional laws are needed, to satisfy [Berne article 6bis’s] requirements."[6] The majority of those who testified before Congress argued against any change to U.S. law concerning an artist's right to control attribution or any alteration to his creation, stating that current U.S. law was sufficient.[7] Indeed, WIPO Director General Dr. Arpad Bogsch explained to Congress that the United States did not need to make any changes to U.S. law to meet the obligations of article 6bis.[8]

Both the House and Senate Judiciary Committees accepted this conclusion,[9] finding that U.S. law met the requirements outlined in the Berne Convention's article 6bis based on the existing patchwork of laws in the United States, including:

Congress found that the existing panoply of remedies available under U.S. common law, state trademark and unfair competition, moral rights and defamation law. and federal laws (including the federal Trademark Act (Lanham Act)[15] provided sufficient moral rights protection. These findings were explicitly stated in the Berne Convention Implementation Act of 1988.[16]

When Congress was convinced that enhanced protection for moral rights was necessary, legislation was passed in 1989.[17] Congress elected not to adopt broad moral rights provisions in its copyright law, but instead relied on a combination of various state and federal statutes to comply with its Berne obligations.

The Supreme Court's 2003 decision in Daystar[]

In 2003, some scholars began to question the strength of the U.S. patchwork of protection as a result of the U.S. Supreme Court's ruling in Dastar v. Twentieth Century Fox Film (Dastar), which foreclosed some attribution claims under Section 43(a) of the Lanham Act.[18] The Court unanimously rejected an interpretation of Section 43(a) that would "require attribution of uncopyrighted materials."[19] Citing the Visual Artists Rights Act of 1990 (VARA), the Court said that when Congress has wanted to provide an attribution right under copyright law, "it has done so with much more specificity than the Lanham Act's ambiguous use of 'origin.'"[20] The Court found that "origin of goods" is most naturally understood as referring to the source of a physical product, not the person or entity that originated the underlying creative content.[21] In a well-known sentence, Justice Scalia, writing for the Court, stated that permitting a Section 43(a) claim for such misattribution "would create a species of mutant copyright law that limits the public's 'federal right to copy and to use' expired copyrights."[22]

Some lower courts have read Dastar as a broad prohibition on applying federal trademark and unfair competition laws in the realm of copyright, regardless of whether the copyrighted work remains under the term of protection or has fallen into the public domain.[23] In contrast, some scholars have argued that the Court did not write federal trademark and unfair competition law out of the patchwork entirely.[24]

Rights management information and moral rights for performers[]

Since implementation of the Berne Convention, the United States has joined two additional international treaties that address moral rights — the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). The WCT incorporates the substantive provisions of Berne, including those of article 6bis.[25] Article 5 of the WPPT expands the obligations of Contracting Parties to recognize the moral rights of attribution and integrity for performers with respect to their live performances and performances fixed in phonograms.[26] Furthermore, both the WCT and the WPPT include new obligations concerning rights management information (RMI).[27] These provisions protect new means of identifying and protecting works while also helping protect the rights of attribution and integrity.[28]

The United States implemented its WCT and WPPT obligations via enactment of the 1998 Digital Millennium Copyright Act ("DMCA"),[29] and signed as a contracting party to both treaties in 1999, three years before the treaties entered into force.[30] Congress added a new chapter 12 to title 17, which contained two new provisions to implement the treaties — section 1201, which addresses technological protection measures, and section 1202, which protects rights management information (called copyright management information in U.S. law)[31] &mdash but did not make any additional changes, finding that "[t]he treaties do not require any change in the substance of copyright rights or exceptions in U.S. law."[32]

Section 1202 includes prohibitions on both providing false copyright management information ("CMI"), and removing or altering CMI.[33] In addition to facilitating the administration of an author's or right holder's economic rights, the CMI protections afforded by section 1202 may have implications for authors' protection and enforcement of their moral rights.[34] However, two aspects of section 1202 may limit its usefulness as a mechanism to protect an author's moral rights. First, to be liable under section 1202, a person who removes copyright management information must know both that they have caused its removal and that such removal is likely to cause others to infringe the work.[35] Second, while most courts recognize section 1202 as protecting against any removal of attribution from works, a minority of courts have limited section 1202 to protect only against removal of attribution that is digital or part of an "automated copyright protection or management system."[36]

Availability and use of licenses, contracts, and state laws[]

Another part of the patchwork upon which moral rights protection in the United States relies is state contract law, which allows authors to negotiate for protection of their rights of attribution and integrity through private ordering. Since the United States' accession to the Berne Convention, a major change to this area has been the emergence of Creative Commons and its various licenses that have simplified licensing for all kinds of authors and users, large and small. The CC license suites have served to facilitate private ordering, including for individual authors that would not previously have been able to afford the services of a lawyer to create licenses to govern use of their works.[37] Currently there are over one billion works licensed under Creative Commons licenses, most of which require attribution of the author.

Changes in technology to deliver content and identify content[]

The evolution of technology in the past few decades has also impacted the availability of moral rights protections for modern authors. Technology can facilitate improved identification and licensing of works with persistent identifiers,[38] while, at the same time, it can also make it easier to remove attribution elements and distribute the unattributed works widely.[39]

U.S. Copyright Office public study on moral rights[]

The U.S. Copyright Office is undertaking a public study on moral rights for authors, specifically the rights of attribution and integrity.[40] The study will review how existing U.S. law, including provisions found in Title 17 of the U.S. Code and other federal and state laws, protects the moral rights of attribution and integrity and whether any additional protection is advisable in this area.

References[]

  1. ↑ Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works.
  2. ↑ Berne Convention for the Protection of Literary and Artistic Works art. 6bis(1), Sept. 9, 1886, as revised July 24, 1971, and as amended Sept. 28, 1979, S. Treaty Doc. No. 99–27 (1986).
  3. ↑ As part of the consideration for possible accession to the Berne Convention, the general review of the 1909 Act took more than 20 years and resulted in the 1976 Copyright Act.
  4. ↑ See William Strauss, "Study No. 4: The Moral Right of the Author" (1959), in Staff of S. Comm. on the Judiciary, 86th Cong., Copyright Law Revision: Studies Prepared for the Subcomm. on Patents, Trademarks, and Copyrights of the Comm. on the Judiciary, United States Senate: Studies 1–4, at 109 (Comm. Print 1960).
  5. ↑ Strauss at 142. The report rejected the idea of an "irreconcilable breach between European and American concepts of protection of authors' personal rights," instead concluding that U.S. and European courts generally arrived at the same results in upholding the same rights or limitations on those rights, just in different ways. Id. at 141–42.
  6. ↑ H.R. Rep. No. 100–609, at 33 (1988).
  7. ↑ See S. Rep. No. 100–352, at 6 (1988); H.R. Rep. No. 100–609, at 33 (1988).
  8. ↑ See H.R. Rep. No. 100–609, at 37 (1988); S. Rep. No. 100–352, at 10 (1988); see also Letter from Dr. Arpad Bogsch, Dir. Gen., World Intellectual Prop. Org., to Irwin Karp, Esq. (June 16, 1987), reprinted in Berne Convention Implementation Act of 1987: Hearing on H.R. 1623 Before the Subcomm. on Courts, Civil Liberties & the Admin. of Justice of the H. Comm. on the Judiciary, 100th Cong. 213 (1987) ("In my view, it is not necessary for the United States of America to enact statutory provisions on moral rights in order to comply with Article 6bis of the Berne Convention. The requirements under this Article can be fulfilled not only by statutory provisions in a copyright statute but also by common law and other statutes.").
  9. ↑ See S. Rep. No. 100–352, at 9–10 (1988); H.R. Rep. No. 100–609, at 37–38 (1988); see also S. Exec. Rep. No. 100–17, at 55 (1988) (to accompany S. Treaty Doc. No. 99–27 (1986)) (statement of John K. Uilkema on behalf of American Bar Ass'n before the S. Comm. on Foreign Relations) ("Whether greater or lesser moral rights per se should be the subject of legislative consideration in the United States is a question that is separate and apart from the Berne adherence compatibility question.").
  10. ↑ See 15 U.S.C. §1125(a).
  11. ↑ See 17 U.S.C. §106(2).
  12. ↑ See 17 U.S.C. §115(a)(2).
  13. ↑ See 17 U.S.C. §203.
  14. ↑ See H.R. Rep. No. 100–609, at 34 (1988). Contract law is particularly important for authors to control aspects of their economic and moral rights. For example, the collective bargaining agreements that govern the creation of major motion pictures often contain explicit requirements with regards to attribution for actors, writers, directors, and other guilds. Many copyright sectors that involve numerous authors and participants in the creative process, such as filmed entertainment, business and entertainment software, music production, and book publishing, also rely on both employment agreements and the work-for-hire doctrine to determine ownership issues, which in turn may include elements related to attribution and integrity.
  15. ↑ Section 43(a) of the Lanham Act creates a federal law of unfair competition, part of which prohibits inaccurate descriptions of goods and their origin. See, e.g., Gilliam v. American Broadcasting Cos., 538 F.2d 14, 192 U.S.P.Q. (BNA) 1 (2d Cir. 1976) (full-text) (editing a television program by someone other than its creator so fundamentally changed the nature of the original work that it was a misdescription of origin to continue to exhibit the edited work with the author's name on it); Smith v. Montoro, 648 F.2d 602, 211 U.S.P.Q. (BNA) 775 (9th Cir. 1981) (full-text) (misattribution of credit on a motion picture is actionable under Section 43(a)).
  16. ↑ See Act of October 31, 1988, Pub. L. No. 100-568, 1988 U.S.C.C.A.N. (102 Stat.) 2853.
  17. ↑ See Visual Artists Rights Act of 1990, Pub. L. No. 101-650, 1990 U.S.C.C.A.N. (104 Stat.) 5128 (gave the author of a work of visual art certain rights of attribution and integrity).
  18. ↑ 539 U.S. 23 (2003). Dastar involved the distribution of an edited version of a 1949 broadcast to which Twentieth Century Fox had owned the copyright but which it failed to renew, placing the work in the public domain. Dastar distributed copies of the edited series listing Dastar and its subsidiary as the producer and distributor of the edited work, rather than Fox. Fox sued for reverse passing off, claiming Dastar violated Section 43(a) of the Lanham Act's prohibition against false designation of origin.
  19. ↑ Id. at 35.
  20. ↑ Id. at 34.
  21. ↑ See id. at 31–32.
  22. ↑ Id. at 34 (internal quote marks omitted). The Supreme Court left open the possibility of a Lanham Act claim under Section 43(a)(1)(B) where, in advertising for a [[copied work of authorship, the copier "misrepresents the nature, characteristics [or] qualities" of the work. Id. at 38.
  23. ↑ See, e.g., Kehoe Component Sales Inc. v. Best Lighting Prods., Inc., 796 F.3d 576, 587 (6th Cir. 2015); Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131, 148–49 (5th Cir. 2004); Zyla v. Wadsworth, 360 F.3d 243, 251–52 (1st Cir. 2004); Carroll v. Kahn, 2003 WL 22327299, at *5–6 (N.D.N.Y. Oct. 9, 2003).
  24. ↑ See, e.g., Jane C. Ginsburg, "Moral Rights in the U.S.: Still in Need of a Guardian Ad Litem," 30 Cardozo Arts & Ent. L.J. 73, 83–87 (2012); Justin Hughes, "American Moral Rights and Fixing the Dastar 'Gap,'" 2007 Utah L. Rev. 659 (2007). At least one commenter has argued that not only do section 43(a)(1)(B) claims survive Dastar, but so do some section 43(a)(1)(A) claims. See Hughes, at 692– 95.
  25. ↑ See WIPO Copyright Treaty art. 1(4), Dec. 20, 1996, 2186 U.N.T.S. 121 ("WCT"); see also Summary of the WIPO Copyright Treaty (WCT) (1996), WIPO, http://www.wipo.int/treaties/en/ip/wct/summary_wct.html.
  26. ↑ See WIPO Performances and Phonograms Treaty art. 5(1), Dec. 20, 1996, 2186 U.N.T.S. 203 (‘‘WPPT’’). Like the Berne Convention, the WPPT provides that the duration of protection shall be at least for the term of economic rights and shall be governed by national law. WPPT arts. 5(2)–(3).
  27. ↑ See WCT art. 12; WPPT art. 19. WCT article 12 and WPPT article 19 define rights management information to include identification of the author and owner and terms of use of the work or sound recording.
  28. ↑ See J. Carlos Ferna dez-Molina & Eduardo Peis, "The Moral Rights of Authors in the Age of Digital Information," 52 J. Am. Soc'y for Info. Sci. & Tech. 109, 112 (2001) (explaining how the WIPO Internet Treaties' rights management information provisions fit within the treaties and also are useful in protecting moral rights).
  29. ↑ Digital Millennium Copyright Act (DMCA), Pub. L. No. 105–304, 103, 122 Stat. 2860, 2863–76 (1998) (codified as amended at 17 U.S.C. §§1201–05). The WIPO Internet Treaties were submitted to Congress for advice and consent the previous year, and the Senate voted to approve the Treaties shortly before passage of the DMCA. See S. Treaty Doc. No. 105-17 (1997); 105 Cong. Rec. S12, 972–73 (daily ed. Oct. 21, 1998).
  30. ↑ See WCT Notification No. 10: WIPO Copyright Treaty: Ratification by the United States of America, WIPO (Sept. 14, 1999), available at http://www.wipo.int/treaties/en/notifications/wct/treaty_ wct_10.html; WPPT Notification No. 8: WIPO Performances and Phonograms Treaty: Ratification by the United States of America, WIPO (Sept. 14, 1999), available at http://www.wipo.int/treaties/en/notifications/wppt/treaty_wppt_8.html.
  31. ↑ The other sections of chapter 12 include sections 1203 and 1204, which set forth available civil remedies and criminal sanctions for violation of sections 1201 and 1202, and section 1205, which explicitly carves out federal and state laws affecting Internet privacy. 17 U.S.C. §§1203–05.
  32. ↑ H.R. Rep. No. 105-551, pt. 1, at 9 (1998).
  33. ↑ The term "copyright management information" in the Copyright Act is seen as a synonymous term for "rights management information" as used in the WCT and WPPT. See S. Rep. No. 105–190, at 11 n.18 (1998) ("Rights management information is more commonly referred to in the U.S. as copyright management information (CMI).").
  34. ↑ Section 1202 makes it an offense to "intentionally remove or alter any copyright management information," which includes the name of a work's author. 17 U.S.C. §§1202(b)(1), (c)(2). See Jane C. Ginsburg, "Have Moral Rights Come of (Digital) Age in the United States?," 19 Cardozo Arts & Ent. L.J. 9, 11 (2001) ("The DMCA may contain the seeds of a more general attribution right. . . .’’); see also Greg Lastowka, "Digital Attribution: Copyright and the Right to Credit," 87 B.U. L. Rev. 41, 69–73 (2007).
  35. ↑ See 17 U.S.C. §§1202(a)–(b); see also Stevens v. Corelogic, 2016 WL 4371549, at *5, *6 (S.D. Cal. July 1, 2016) ("Under §1202(b)(1), Plaintiffs must present evidence that [defendant] intentionally removed or altered CMI. . . ." and "[a]lthough Plaintiffs need not show actual infringement, the fact that there was none is relevant to Plaintiffs' burden to show that [defendant] had a reasonable ground to believe it was likely to happen.").
  36. ↑ Compare Murphy v. Millennium Radio Grp. LLC, 650 F.3d 295, 305 (3d Cir. 2011) (rejecting argument that the definition of CMI under section 1202 is "restricted to the context of 'automated copyright protection or management systems'") and Williams v. Cavalli S.p.A., 2015 WL 1247065, at *3 (C.D. Cal. Feb. 12, 2015) (holding that "[t]he plain meaning of § 1202 indicates that CMI can include non-digital copyright information"), and Leveyfilm, Inc. v. Fox Sports Interactive Media, LLC, 999 F. Supp. 2d 1098, 1101–02 (N.D. Ill. 2014) (noting that the majority of courts have rejected a requirement for CMI to be digital under section 1202), and Fox v. Hildebrand, 2009 WL 1977996, at *3 (C.D. Cal. July 1, 2009) ("The plain language of the statute indicates that the DMCA provision at issue is not limited to copyright notices that are digitally placed on a work."), with Textile Secrets Int’l Inc. v. Ya-Ya Brand Inc., 524 F. Supp. 2d 1184, 1201 (C.D. Cal. 2007) ("[T]he Court [] cannot find that the provision was intended to apply to circumstances that have no relation to the Internet, electronic commerce, automated copyright protections or management systems, public registers, or other technological measures or processes as contemplated in the DMCA as a whole."), and IQ Grp., Ltd. v. Wiesner Publ’g, LLC, 409 F. Supp. 2d 587, 597 (D.N.J. 2006) (holding that "[t]o come within § 1202, the information removed must function as a component of an automated copyright protection or management system"). The majority position seems to accord with statements from the legislative history. See, e.g., S. Rep. No. 105–190, at 16 (1998) ("CMI need not be in digital form, but CMI in digital form is expressly included.").
  37. ↑ Founded in 2001, Creative Commons offers various open source content licenses. Creative Commons Project, Cover Pages (Aug. 22, 2008), http://xml.coverpages.org/creativeCommons.html. These types of licenses were held to be governed by copyright law rather than contract law in Jacobsen v. Katzer, 535 F.3d 1373, 1380–83 (Fed. Cir. 2008).
  38. ↑ For example, the PLUS Coalition has created an image rights language to allow for global communication of image rights information, and it is currently developing an image registry that will function as a hub connecting registries worldwide and providing both literal and image-based searches. PLUS Coalition, "Comments Submitted in Response to U.S. Copyright Office's Apr. 24, 2015 Notice of Inquiry (Visual Works Study)," at 1 (July 22, 2015) (noting that the Coalition's unique image rights language is meant to address the "challenges [arising] from a present inability to ensure that any person or machine encountering a visual work has ready access to rights information sufficient to allow the work to be identified, and sufficient to facilitate an informed decision regarding the display, reproduction and distribution of the work").
  39. ↑ Indeed, CMI is of particular interest to visual artists who embed copyright information in their works only to find it unlawfully stripped from digital copies. This makes it difficult for potential users to identify and contact the copyright owner to obtain a license to use a work found online. See Columbia University Libraries, Comments Submitted in Response to U.S. Office's Apr. 24, 2015 Notice of Inquiry (Visual Works Study) at 2 (July 23, 2015) ("Rights metadata that includes author attribution and source information would [] facilitate subsequent re-uses of visual works while at the same time support the interests of legitimate copyright owners.").
  40. ↑ U.S. Copyright Office, Study on the Moral Rights of Attribution and Integrity, Notice of Inquiry (Jan. 23, 2017) (full-text).

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