Thursday 8 December 2011

Moral rights: a book review

Moral Rights - Principles, Practice and New Technology, by Mira T. Sundara Rajan, is reviewed here by Iona Harding and Emily Sweetland.  Iona and Emily both belong to Baker & McKenzie LLP, where they are Associates in the firm's Intellectual Property Group. Iona and Emily write:
"The initial question posed in this book may well be the same question that many readers of this review are currently asking themselves: why care about moral rights? If that is the case, Mira Rajan has at least succeeded in knowing something about her readers and their level of interest in the subject matter. Her answer is that moral rights are "vital now more than ever as we enter the Digital Age."

This is a theme throughout the book, which begins by addressing the evolution of moral rights both throughout history and throughout the world, as well as the place of moral rights in the international copyright regime. The book then comprehensively discusses moral rights in the information technology, digital music, film, and arts industries, before looking at moral rights and open access and the future of moral rights.

With sometimes highly evocative language, the author walks us through the history of moral rights, comparing the doctrine in France (where a clear distinction is made between economic rights in a work and the author's droit moral) with that in Germany (where a monistic approach discourages the separation of economic and moral rights). She then looks at how the UK came to adopt moral rights, and explains why we rejected the concept when the Statute of Anne was passed, only acknowledging it fully in the Copyright, Designs and Patents Act 1988 (CDPA). Case studies of "younger" jurisdictions such as Canada and Japan provide an interesting counterpoint to the European approach, with the role of honour and reputation in Japanese culture being a driver behind the country's strong protection of moral rights and its unusual stance in allowing corporations to have moral rights in their works. 
To some it may seem that moral rights have become irrelevant in the digital age, where there is more distance than ever between the author and his work. Mira Rajan's view is that the fact that moral rights have become more difficult to enforce in practice does not mean that they are no longer relevant. However, the book reveals that moral rights are fundamentally a cultural phenomenon, a concept which is enormously dependent on the social value attributed to the author of a work and which cannot easily be codified. The practical question of how to legislate for those rights is difficult: there appears to be no clear answer, although the breadth of protection offered throughout the world may be testament to the need for moral rights regulation to provide the flexibility and "delicate nuances" which are needed in the Digital Age and which are not, she argues, sufficiently protected by the copyright regime. 
The impact of technology on moral rights is discussed over the course of a number of chapters covering music, film, visual arts and open access separately. The author explains that moral rights should be protected despite evolving technology and, as the forerunner of commercial digitisation, the music industry should provide a framework of how to apply moral rights to digital works. Fundamentally, although we may need to adapt moral rights to fit with the way the world now works, the principles of integrity, attribution and disclosure should apply equally to digital and analogue works. However, no practical examples are given as to how moral rights could or should be adapted. 
There is one small point that needs attention. The work states, at p.381, that in the UK a producer is the author of the copyright in a film but the director is entitled to moral rights "even though he is not considered an author". For films made on or after 1 July 1994, s.9(2)(ab) of the CDPA however states that the author of a film is its producer and the principal director. Unless the producer and the principle director are the same person, the film is a work of joint authorship (s.10(1A)). Professor Cornish's comments which follow appear to have been made in 1989 so are now out of date.  
The author is undeniably passionate about her subject, meaning that her writing is engaging and convincing. The narrative is rich and is illustrated with examples and stories, making it easy to read and the main themes are repeated in every chapter. Because the book deviates into philosophical and cultural arguments more than is usual in a legal textbook, it is likely to appeal to academics looking for a well researched and thorough analysis of the social and historical context of moral right,s rather than to practitioners looking for a guide to help them advise on the application of moral rights to the evolving digital world".
Moral Rights: Principles, Practice and New Technology is published by Oxford University Press. ISBN13: 9780195390315; ISBN10: 0195390318. Paperback, 572 pages. Price $150. Web page and further details here.

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