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The Digital Media Project |
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Source |
Philip Merrill |
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Title |
TRU #59 moral rights |
No. |
040323merrill01 |
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Name: |
Philip Merrill |
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Affiliation/additional information: |
Active Contributor, Pasadena, California |
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Date submitted: |
2004/03/23 |
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Criteria |
Description |
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1. |
Name of TRU |
TRU moral rights |
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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. |
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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)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:
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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:
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." |
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5. |
Benefits of TRU |
Benefit Right-holders. Constrain the permissible behavior of Middle-men and others who might want to claim credit. |
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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. |
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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. |
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8. |
References |