The Digital Media Project

Source

Philip Merrill

Title

TRU #59 moral rights

No.

040323merrill01

 

Name:

Philip Merrill

Affiliation/additional information:

Active Contributor, Pasadena, California

Date submitted:

2004/03/23

 

#

Criteria

Description

1.

Name of TRU

TRU moral rights

2.

Summary description of TRU

A collection of rights distinguished from authors' economic rights under several legal systems, pertaining to the fundamental relationship between a creator and the literary and artistic works they have created, primarily including the rights of paternity and integrity.

3.

Use records of TRU

For this discussion, moral rights will be somewhat broadly considered to include the following TRUs:

TRU to be recognized as the author (paternity)
TRU of attribution
TRU not to be miscredited as the author (misattribution)
TRU for the author's work not to be tampered with (integrity)
TRU of reputation
TRU of first publication/disclosure
TRU of withdrawal/objection
Moral rights are generally considered to be strictly stated statutes legislated in civil law countries, and so this is contrasted with the common law traditions of the United Kingdom and the United States. Even in common law traditions, however, moral rights assert themselves as part of what is called "natural law" or a sense of what justice demands. Also, Paul Goldstein in particular as well as a number of copyright scholars assert that local economic rights often produce the same effects as those which seem to be intended by moral rights statutes, and that in turn the civil law judiciaries may resort to using moral rights in order to resolve conlicts that only arise because of economic considerations or conflicts. Discussions of moral rights often include reference to Immanuel Kant's proposition that writings embody the personality of the author, and it is also important to note the French tradition's strong insistence on moral rights, which predates the Berne convention efforts of the late 19th century.

To illustrate how the above list of TRUs interoperate, this discussion will resort to the well-worn metaphor of the fruit tree - in this case, an anthropomorphised tree that insists its fruit be freshly plucked from the branch. So to metaphorically treat the TRUs in the order above:

  • TRU to be recognized as the author (paternity) - Although the fruit tree wants its fruit to be eaten, it expects credit and good regard for having been the tree that produces this fruit.
  • TRU for the author's work not to be tampered with (integrity) - The tree has certain standards for its fruit and will not tolerate unpleasant interference with its taste - for example the insertion of chives - especially when someone consuming the fruit might blame the tree for a bad taste.
  • TRU of attribution - If the fruit is eaten, the tree gets credit.
  • TRU not to be miscredited as the author (misattribution) - The tree rejects having other trees' fruits attached to its branches.
  • TRU of reputation - The tree cares that fruit-eaters maintain a good or at least an accurate opinion about it as being a certain kind of tree, so that its fruit will be valued and potential future consumers develop a confident sense of what to expect.
  • TRU of first publication/disclosure - Fruit is not to be eaten until it is ripe, and the color green is a warning to keep your hands to yourself.
  • TRU of withdrawal/objection - The tree can reject a fruit as unworthy by letting it drop to the ground where it will rot away.
Although the preceding is unduly colorful, it is provided here for the sake of comprehension. Less juvenile descriptions of these TRUs are available at their respective templates.

4.

Nature of TRU

[Disclaimer: The following as well as the treatment of the TRUs above is written by an American relying on an American book, Paul Goldstein's International Copyright — Principles, Law and Practice. The result is a lack of real-world detail and a detached perspective as to how these TRUs matter and function.]

Inalienable TRUs exist. France (and, less so, Germany) imposes this abstract system on the world, called droits moral (note 1928 Berne 11bis usage). French history has many examples showing the importance of ideals of creative expression, for example TRU to print was a feature of revolutionary thought and France vigorously supports its regional creative culture. As with other French systems of categories that have flourished from the Enlightenment to Post-Modernism, the moral right(s) of creators insists certain universal categories be defined.

There is also a French court case making moral right(s) available to any creator in the world, no matter what their country and regardless of treaty. Goldstein describes a notable law case (Sec. 3.3.2.2.C) decided in 1991 by France's Court of Cassation interpreting the French code's wording - "inalienable" - as providing authors from foreign countries with unrestricted access to France's courts to assert these rights, at least inside France. [For DMP it should be pointed out that this makes droit moral mandatory for technical support, because there will always be liability to legal claims brought in France.]

Goldstein says the U.S. "has steadfastly resisted the literal incorporation into national law of the rights secured by Article 6bis" of Berne (link to treaty language) and the U.S. excluded moral rights from TRIPS (Id. Sec. 5.4.2, also ref. Sec. 2.3.2.I). However, Trademark and other requirements - such as 15 U.S.C. 1125 prohibiting "False designations of origin, false description..." - are "potentially perpetual" (Id. Sec. 5.3.I.I.A). A perpetual economic right is at least as sound as an inalienable moral right, provided judicial enforcement is available for both. The one place where the U.S. has embraced Paternity & Integrity applies to visual artists releasing no more than 200 copies of an artwork. It should also be noted that WIPO Performances and Phonograms Treaty Article 5(I) extends Paternity and Integrity to performers for their "live aural performances or performances fixed in phonograms."

In oversimplified popular thinking:

  • by French statute, moral rights are part of a 'dualist' separation of universal rights from alienable economic rights
  • moral rights in Germany are embodied in a 'monist' unity of inalienable rights both moral and economic (as opposed to whatever other rights of an author or creator are alienable)
  • moral rights don't exist in U.S. or British common law (with narrow exceptions)
Goldstein suggests the apparently different structures of ideas in these traditions don't add up as very different in the end. He describes a wide variety of state and federal remedies available in the U.S. (Id. Sec. 4.2.3) as well as circumstances under which moral rights may be limited or considered waived (Id. Sec. 5.4.2.5). He says, "Although it is commonly thought that the civil law countries are sternly paternalistic in these matters while the common law countries widely endorse the opposing principle of freedom of contract, the substantive differences between the two traditions are, as a practical matter, small and sometimes nonexistent." (Id. Sec. 5.2.2.I)

Enormous conundrums are potentially posed by collective works, especially since the U.S. often vests copyright ownership in an economic entity whereas French civil law favors flesh-and-blood authors (Id. Sec. 3.3.2.I.A, esp. discussion of Kerever, and Sec. 4.2). Goldstein's discussion of whose job on a movie should count as "co-author" shows the amusing variety of copyright ownership schemes internationally (Id. Sec. 5.2.I.5.A and Sec. 5.2.2).

At Sec. 2.I.2.I.A, Goldstein reviews a bit of early Berne history, showing the difference between French universalist thinking and a distinct approach favored by the German Publishers' Association, the Boersenverein der deutschen Buchändler. This resulted in Berne as we now know it and even the well-known phrase "literary and artistic works" was a Swiss compromise, as the early convention sought to avoid "theoretical controversies related to the nature of author's rights."

5.

Benefits of TRU

Benefit Right-holders. Constrain the permissible behavior of Middle-men and others who might want to claim credit.

6.

Possible digital support

The absolutist nature of moral rights lends itself to an information technology approach being as it embodies easily distinguished factual information that can be stored and provided readily through both a server system and databases protected by some sort of trusted digital repository (TDR, ref. RLG/OCLC report). In contrast to the simplistic mathematics of serving this information is the unbearably variable nature of art, artists and what could somewhat facetiously be described as "their world".

Perhaps the information in authors and artists' heads will always seem unstable compared to the pristine simplicity of maintaining moral rights databases. On a purely human B2B level, some sort of artistic representation by third-party manager/promoter types is likely to be inevitable and recommended, as in many reported cases of artists being unusually inclined to unpredictable behavior.

Pertaining to the issue of databases, two rules documents produced by the U.S. Copyright Office on March 11 provide interesting insights. http://www.copyright.gov/fedreg/2004/69fr11515.html was produced to address the recordkeeping struggles of webcasters, who would benefit greatly if queueing up audio playlists automatically generated needed databases with the legally required fields already filled out. http://www.copyright.gov/fedreg/2004/69fr11566.html comments on the absence of a copyright ownership database at the Office and says, "the creation of an all-inclusive database is a laudable goal". In related testimony that day before a U.S. House of Representatives subcommittee (http://www.house.gov/judiciary/courts.htm), the Register of Copyrights referred repeatedly to the advantages (in this case referring to blanket licensing) of developing internationally compatible practices.

Pertaining to the separate issue of trademark, considered in combination with TRU quote, it is urgently suggested that some sort of digital trademark be specified such that interactivity by an End-user with it can result in trusted content between the true owner of that mark and the End-user, note connection with TRU authenticity of content guarantee.

7.

Requirements

DMP shall support moral rights

DMP shall support a system adjusting declarations of who owns a work's copyright to national schemes that differ.

DMP shall support the distinction between a creator's alienable TRUs and their inalienable TRUs.

DMP shall support the specification of data for digital trademarks such as can be connected to trusted ecommerce controlled by the owner of that mark, including an interface with the moral rights database.

8.

References