This writer had the great pleasure of attending a conference on ‘Moral Rights and New Technologies: Authorship, Attribution, and Integrity in a Digital World’ held on 31 March and 1 April at the University of Glasgow. It was truly a feast for the intellect – an interdisciplinary and international event, with outstanding scholars leading discussions on the relevance of moral rights to an ever-evolving digital world and a “post-truth” era.
Moral rights – a brief introduction
For those who may not be closely familiar with this area of intellectual property law, moral rights are rights that protect the author’s personality. They usually arise in the context of copyright law, and the most commonly discussed moral rights include;
- The right of attribution – the right of the author to be named as such.
- The right of the author to publish anonymously and pseudonymously.
- The right of the author to prevent the work of another from being credited to him or her (though not always).
- The right of integrity – the right of the author to object to alterations, distortions and mutilations of the work.
- The right of divulgation – the right of the author to be the first to release the work to the world.
Creative works are protected under two different types of philosophies: the copyright systems of common law countries, and the author’s rights systems of civil law countries.
|University of Glasgow|
The author’s rights systems originated within the Civilian traditions on the European continent. This approach emerged in Germany as a means of justifying the payment of authors for their works. In 1793, Fichte published an essay, ‘Proof of the illegality of reprinting: a rationale’, in which he separated the concepts of form (the expression of the author, imbued with his very personality) and content (the ideas contained within the text that the reader is free to appropriate). This thesis gained popularity, and as a result, protection within Germany for creative works came to be based on protection of the expression of the author. His personality permeates the creative work, and that is the reason why the work is protected. Economic rights merely flow from the personality right, the personality right being based on the protection of the author’s expression. Across the European continent, legal systems for the protection of creative works are based upon the protection of the personality of the author of a creative work. Moral rights in these systems are therefore of great significance.
Copyright systems within the common law traditions take a divergent approach. The creative work – the poem, sculpture, painting or melody – is conceptually reduced (or typified) to a piece of property. Within copyright systems (such as the UK or the US), creative works are essentially treated as tradable commodities to be bought and sold in the market. Since the creative object is treated as a kind of property, the rights of the author per se have never been of paramount importance within the common law legal traditions. Rather, the focus of protection within copyright systems is the conceptualisation of the creative work as a piece of property.
The US and the Berne Convention
In terms of international copyright protection, the U.S. had, until 1989, failed to join the Berne Convention, the international framework of copyright protection across (practically) the entire globe. The reticence of the U.S. was due in large part to the moral rights provisions contained within the Berne Convention, in Article 6bis, coupled with Berne’s requirement of automatic protection to the author upon the creation of a work – a marked contrast to the U.S. copyright system, which was then based on the need for registration to enjoy rights [Berne Art. 5(2)]. In spite of these reservations, the U.S. eventually decided to join Berne: the draw of international copyright protection for its citizens and co-operation across the jurisdictions of the signatory states became strong enough for the U.S. to wish to join, and to make an attempt at incorporating moral rights into its legal landscape. To deal with moral rights, the U.S. took the step of creating the ‘Visual Artists Rights Act of 1990’. On 01 March 1989 the U.S. acceded to the Berne Convention. The adherence of the U.S. to its moral rights obligations under the Berne Convention was, and continues to be, an extremely controversial topic amongst experts, since the U.S. implemented moral rights only for visual artists, which are in themselves of particularly narrow and limited effect. Many experts question whether the U.S. is meeting its obligations under the Berne Convention’s moral rights clause at all.
Kim Isbell of the US Copyright Office kicked off the event by commenting on the current Study on the Moral Rights of Attribution and Integrity being carried out by the U.S. Copyright Office. This study is the first domestic review of moral rights since U.S. accession to the Berne Convention almost 30 years ago. The purpose of the study is to:
“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.”
As part of its Study, the U.S. Copyright Office held an event in April 2016 – Authors, Attribution, and Integrity: Examining Moral Rights in the United States. Professor Mira Rajan Sundara – a copyright expert with particular expertise on moral rights – attended this event and it was there that the Glasgow Conference had its genesis. Professor Rajan Sundara was invited by the U.S. Copyright Office to organise an event designed to bring world leading copyright experts and representatives of stakeholder groups together, to discuss digital challenges facing moral rights and help to support the current U.S. study process.
We began with case studies (through a moral rights lens, of course) on literature, music sampling and music composition.
|Mira Sundara Rajan|
Mira Sundara Rajan presented on literature, highlighting moral rights difficulties posed through posthumous publications (Hemingway’s ‘A Moveable Feast’, and Fitzgerald’s ‘The Last Tycoon’), as well as the difficulties of translations of Doctor Zhivago. Professor Sundara Rajan also covered the fascinating issues surrounding the creation of an authoritative Standard Edition (also posthumous) of the works of the prolific national poet of India in the South Indian language of Tamil, Subramania Bharati.
Pravin Anand of Anand and Anand covered the music sampling case study. ‘Bachna Ae Haseeno’ – a song from the 1977 Bollywood film ‘Hum Kisi Se Kam Nahi’ – was sampled for the title song of the 2008 film of the same name, Bachna Ae Haseeno. The moral rights issues in this case were intriguing, as the singers in both the original and the remix were father and son.
Louise Harris, prominent sonic and audio-visual artist based at the University of Glasgow, gave a presentation dealing with situations in which her moral rights had been infringed. Specific difficulties encountered by Dr Harris involve the performance of her audio-visual compositions on equipment with insufficient bandwidth to competently perform her work. This poor-quality bandwidth – as well as lack of three-dimensional acoustic spaces – has led to situations in which she felt that her work had been – to an extent – mutilated, and the essence of the work was lost.
Similarities and differences of moral rights laws across jurisdictions was a major theme of the conference, with Michel Walter presenting on the traditions of the monist jurisdictions of Austria and Germany, Marta Garcia-Leon on Spain, Valérie-Laure Benabou on France, Giuseppe Mazziotti on Italy and Rudolf Leska on the Czech Republic.
In the middle of the day, the presenters enjoyed a different kind of session, with David McGuinness and Concerto Caldeonia offering a performance and discussion of moral rights from the unique perspective of historical Scottish music. The thought-provoking and enjoyable session delivered by the enthusiastic musicians was a highlight of the day.
|Mr. Justice Arnold|
Mr Justice Richard Arnold began day two of proceedings with the keynote of the Conference – a most excellent and impressive overview of moral rights law within the UK, as well as a brief introduction of his current explorations into moral rights with Professor Rajan Sundara.
Mr Justice Arnold presented on the case, The Creative Foundation v Dreamland Leisure Limited and others, over which he presided in the High Court of Justice. This case involved a Banksy mural, which had been removed from the wall of a building and shipped to the U.S. for valuation and eventual auction. Mr Justice Arnold emphasised during his presentation that, despite the UK not having particularly strong moral rights per se, moral rights are capable of being protected through other mechanisms of the law. In the particular case in question, the decision hinged, rather than on a law of moral rights, the law of lease-holding.
Mr Justice Arnold also presented on his current work being undertaken with Professor Sundara Rajan. This fascinating project concerns Elena Feranti (a novelist publishing under a pseudonym), and whether authors have a right of pseudonymity in the UK. A forthcoming article to be published by the illustrious pair will explore issues on whether Article 8 of the European Convention of Human Rights might protect Feranti’s pseudonymity, as well as whether a pseudonymity right might be extrapolated from other areas within UK law.
The rest of the second day focussed on the important issue of moral rights in the digital environment. This is a concept currently in flux, as new technologies allow users to intervene in creative works as has never before been possible. The ways in which we understand authorship and what a creative work is are being challenged with the ever increasing digital presence within our lives. Critically assessing the conceptual challenges posed by digital innovations to existing moral rights schemes is at the cutting edge of our understanding of moral rights law.
Christian Geib PhD candidate at the University of Strathclyde, covered moral rights in Text and Data Mining, and whether moral rights issues could be encountered in this area. Examples he suggested included the data mining of particular creative works and whether the results of such data mining could potentially infringe an author’s moral rights.
|Florian De Rouck|
Florian De Rouck from Verhaegen, discussed artificial intelligence. He presented on the moral rights repercussions regarding artificial intelligence, from the 1960’s software Aaron to the cutting edge Google Magenta project, which is designed to ‘advance the state of the art in machine intelligence for music and art generation’. As it develops to greater and greater complexity, artificial intelligence will surely destabilise our current understanding of the concept of the author and the creative product.
Erin Simon Product Counsel from Google, discussed the potential alternative legal mechanisms used in the U.S. to protect moral rights, including the use of the various creative commons licences For example, an author may licence a creative work and require only that attribution is given – a CC BY licence. Proponents of this approach argue that the creative commons system protects moral rights in an indirect way.
Johannes Grossekettler discussed the moral rights implications of 3D printing. Where low resolution or poor quality printers are used in replicating works, Johannes discussed the potential moral rights issues that may apply in these circumstances.
Owing to the truly multi-disciplinary aspect of the event, the final two speakers were a particular treat. They are both successful artists who kindly gave us their view of moral rights and how their work is affected by these rights. Ela Orleans spoke about her own experiences of both her copyright and moral rights being infringed, and her difficulties in this area. She expressed that she often feels frustrated with YouTube and other platforming sites that do not do much in the way of prohibiting infringement of her work.
|Martha de Francisco|
Martha de Francisco presented on her work as a renowned tonmeister. Having worked with Alfred Brendel for around twenty years and having recorded with a great many other outstanding musicians, Martha has developed a prolific and stellar career. Her work as tonmeister entails recording and producing classical music. With specialist knowledge in classical music, Martha understands the difficulties faced by musicians in interpreting and lifting the music from the score and in turn is expertly able to capture that music in recording. She posited whether moral rights should be accorded to those in her highly-skilled and creative profession.
The Conference was truly a fantastic exploration of moral rights within our digital world. These issues are only going to grow in importance as our lives become ever more intertwined with the digital. Delegates from the conference are planning to produce a book featuring artworks and music, alongside the text, relating to the areas discussed at the Conference, which I am sure will be a fascinating read. The group submitted comments to the U.S. Copyright Office in relation to the ongoing moral rights study in the U.S. The Conference was a most enriching event, with speakers of exceptional calibre and of multidisciplinary reach.
From left to right:
Johannes Grossekettler, Pravin Anand & Florian De Rouck
This writer wishes to thank and acknowledge the kind assistance and expertise of Professor Mira Sundara Rajan in the drafting of this blog.