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Date 05-07-2017

Moral privileges: obstacles for the exploitation of the works rather than for the components of the right

In the continental system, the moral right is clearly set as a component of copyright, and even sometimes, as its first component (see the order of presentation inside the French Intellectual Property Code). In the American copyright or the British copyright, in spite of the ratification of the Bern Convention, moral right is unmistakably seen as an obstacle to freedom of exploitation of the work (which explains its very strict frame). Even the terms “moral right” are very suspicious as they imply “something non-legal, something paralegal”. The history of this privilege, in the United Kingdom and in the United States, before the adoption of the 1988 law (CDPA) and of the 1990 law (VARA), is disconnected from the rest of the common law as regards protection (we have spoken on this matter of patchwork, division, piece-meal). The moral right was indeed indirectly protected by mechanisms such as passing-off, defamation, personality rights and contract law …

The moral right, in copyright countries, presents, even today, important differences with the moral right in countries of continental law (even if we know that within the European Union, the protection of moral right is not harmonized which implies that it is not protected everywhere in the same way). First of all, the copyright does not contain any right to reconsider, to disclose, and to prevent the destruction of the work of art. The moral right is also not subject to the same duration. The attribution right or the right for respect of the work’s integrity are protected in the United Kingdom and in the United States, until the death of the author; the right to fight against false attributions is protected, in the United Kingdom, 20 years after the author’s death. The right for the respect of the work’s integrity, which is certainly the most symbolic privilege, finally, is strictly framed and does not allow bringing any actions against modifications of the work. Furthermore, we are not even raising the question of limitation of the type of works covered (in the United States the right only applies visual art), or the waiver of rights contractually which are admitted in a much wider way than in continental law.

This being specified, we will see the organisation of the moral right in the British copyright and more particularly of the right for the respect of the work’s integrity (let us specify that the CDPA also protects the right of paternity and the right to prevent false attributions). The right of integrity, which was created in 1988, is the right to object to derogatory treatment of work (certain types of works, as newspapers or software are excluded from the protection). This privilege is submitted to very strict conditions. It is excluded in the presence of certain exceptions and it can be the object of waivers. We understand, in these conditions, why it is sometimes useful to apply peripheral legal mechanisms.

Two conditions are necessary: the work must have been the object of a derogatory treatment and have been displayed in particular circumstances. This second condition does not imply specific comments. The derogatory treatment implies, on the contrary, numerous discussions. What is, indeed, a treatment? And what makes it derogatory?

On the first point, the section 80 (2) defines the treatment as any addition to, deletion from or alteration to or adaptation of the work. According to the expression honoured by the judge and the doctrine, the legal definition involves an internal modification of the structure of the work. Concretely, part of a painting is cut before its exhibition, a work in black and white is colorized, or a work is reduced. This text has never given place to a lot of precision on behalf of the judge. In the Record Confetti v. Warner Music UL Ltd case, seen hereafter, the judge recognized the derogatory treatment of the musical work source, without specifying what it consisted of (the transfer a musical piece into rap? the repetition of the same word?). In any case, the conception here defended is much narrower than the one appearing in the Bern Convention, which concerns all the derogatory treatments of the work. It is possible to infringe the work without touching its internal structure. It will notably be the case when a noble musical work is introduced into a vulgar compilation, or when a work of art is exposed in an off-ill repute place. The infringement of the work is an infringement of its integrity but also of its spirit, even though it has been understood that the British copyright does not protect this last dimension.

If there is a treatment, when is it seen as derogatory? According to section 80 (2) b, the treatment of the work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director. One of the first questions set by this text is to determine whether there can be a mutilation or distortion of the work without prejudicing the honour and consideration of the author? (The opposite hypothesis does not present any difficulty). The answer is certainly positive but it was only brought indirectly by the judge on the occasion of a dispute regarding the reframing of a photograph. The following question is more delicate: what it seen as prejudicing the honour and the reputation (a condition included in the Bern Convention under the influence of the United Kingdom)? Several decisions illustrate this notion and show that the exercise of this right is difficult. Without evoking the famous Canadian decision Snow v. The Eaton Centre[1] ruled in 1982 by the High Court of justice of Ontario (about a sculpture of gooses exposed in a shopping mall to which ribbons had been added during Christmas time), two British cases allow the illustration of this point. The first one (Tidy v. Trustee of the Natural History Museum[2]) was ruled in 1996. It opposed a draftsman, Bill Tidy, to a Natural history museum, transferee of the rights on a series of drawings of dinosaurs in black and white. The artist blamed the Museum for having reduced strongly his drawings in a book and for having colorized them without authorization. The action was rejected by the high court which considered that the author did not bring the proof that this reduced representation had modified the perception of the public. The second case (Record Confetti v. Warner Music UL Ltd[3]) ruled in 2003 presented a litigation between two groups of musicians. The second had created a rap version of a song using its lyrics by adding to it a continuous tempo and the repetition of the word burning. The musician author of the first work complained about the fact that his work was plunged into an atmosphere of rap with words which could be interpreted as an invitation to lynching. The derogatory treatment is, once more, rejected by the judge. Besides the fact that the initial work already bathed itself in a rap universe, the judge considered that the applicant did not bring the proof of the attempt caused to the honour and to the reputation of the artist. The teachings of these jurisprudences are of two. The attempt to the honour and to the reputation, which the English doctrine compares to the defamation or to the attempt to dignity, is an objective and not subjective infringement. The judge requires a certain threshold of gravity. To make a reference to a French concept, we could say that the attempt caused to the honour and to the reputation must be obvious.

Interpreted strictly, decreased from essential privileges, except for certain works, the moral right can still be the object of waivers on behalf of the author. According to the section 87 of the law of 1988, a waiver may relate to a specific work, to works of a specified description or to works generally (which is not possible in most of the systems of continental rights). It can concern existing or future works. In any case it requires to be put in writing. Actually, the operators include very often these waivers which reduce the moral right to nothing.

The moral protection can be then acquired by requesting the application of the defamation right (the fact to present a work with numerous errors may attempt the honour and the reputation of the person) or the application of contract law (see for example the case Frisby v. BBC[4] in which a contract authorized in advance an operator to proceed to minor corrections which were not considered as minor by the judge).




[1]  Snow v. The Eaton Centre (1982) 70 CPR (2d) 105 Canada

[2]  Tidy v. Trustee of the Natural History Museum (1996) EIPR D-86, (1998) 39 IPR 501.

[3]  Confetti Confetti Records v. Warner Music UK Ltd (2003) EMLR (35) 790

[4]  Frisby v. BBC Ch. 932