Sunday 5 February 2017

U.S. Copyright Office Seeks Public Comments on Moral Rights

The United States Copyright Office announced it is undertaking “a public study to assess the current state of U.S. law recognizing and protecting moral rights for authors, specifically the rights of attribution and integrity.” The Copyright Office had organized a symposium, ‘‘Authors, Attribution, and Integrity: Examining Moral Rights in the United States,’’ which took place on April 18, 2016.

It now “will review existing law on the moral rights of attribution and integrity, including provisions found in title 17 of the U.S. Code as well as other federal and state laws, and whether any additional protection is advisable in this area.”

It is seeking “public comments addressing how existing law, including provisions found in title 17 of the U.S. Code as well as other federal and state laws, affords authors with effective protection of their rights, equivalent to those of moral rights of attribution and integrity“ on several questions listed below.
General Questions Regarding Availability of Moral Rights in the United States

1. Please comment on the means by which the United States protects the moral rights of authors, specifically the rights of integrity and attribution. Should additional moral rights protection be considered? If so, what specific changes should be considered by Congress? Title 17

2. How effective has section 106A (VARA) been in promoting and protecting the moral rights of authors of visual works? What, if any, legislative solutions to improve VARA might be advisable?

3. How have section 1202’s provisions on copyright management information been used to support authors’ moral rights? Should Congress consider updates to section 1202 to strengthen moral rights protections? If so, in what ways?

4. Would stronger protections for either the right of attribution or the right of integrity implicate the First Amendment? If so, how should they be reconciled?

5. If a more explicit provision on moral rights were to be added to the Copyright Act, what exceptions or limitations should be considered? What limitations on remedies should be considered?

Other Federal and State Laws

6. How has the Dastar decision affected moral rights protections in the United States? Should Congress consider legislation to address the impact of the Dastar decision on moral rights protection? If so, how?

7. What impact has contract law and collective bargaining had on an author’s ability to enforce his or her moral rights? How does the issue of waiver of moral rights affect transactions and other commercial, as well as non- commercial, dealings?

Insights From Other Countries’ Implementation of Moral Rights Obligations

8. How have foreign countries protected the moral rights of authors, including the rights of attribution and integrity? How well would such an approach to protecting moral rights work in the U.S. context?

Technological Developments

9. How does, or could, technology be used to address, facilitate, or resolve challenges and problems faced by authors who want to protect the attribution and integrity of their works?

Other Issues

10. Are there any voluntary initiatives that could be developed and taken by interested parties in the private sector to improve authors’ means to secure and enforce their rights of attribution and integrity? If so, how could the government facilitate these initiatives?

11. Please identify any pertinent issues not referenced above that the Copyright Office should consider in conducting its study.

What are Moral Rights?

The two main moral rights provide the author of a work protected by copyright the right of attribution, that is, the right to be credited as the author of the work, and the right of integrity, that is, the right of preventing the work from being altered or distorted.

Moral rights stem from French law (le droit moral) and Article L. 121-1 of the French Intellectual Property Code still provides an author the right to respect for her name, her quality and her work. This moral right is attached to the person of the author, meaning that French law considers it a personality, a droit de la personnalité, just like the right to privacy or even one’s honor. Under French law, this right is “perpetual, inalienable and imprescriptible” and is “transferable upon death to the author's heirs. Exercise can be given to a third party by virtue of testamentary dispositions.”

Does the U.S. have Moral Rights?

This question is not easily answered. The U.S. finally joined the Berne Convention in 1989. Article 6bis(1) of Berne states that:

‘‘Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”

The U.S. did not enact a comprehensive moral right law when joining the Berne Convention, but instead took the position that a combination of its laws were enough to comply with its obligations under the Convention. Amongst such law is, curiously, the Trademark Act, which Section 43(a) provides a civil action in case of false designation of origin.

However, the Supreme Court held in 2003, in Dastar Corp. v. Twentieth Century Fox Film Corporation, that origin, in Section 43(a), “refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods.” The Court concluded that therefore Section 43(a) cannot be used to require attribution of uncopyrighted materials.

The 1990 Visual Artists Rights Act (VARA), section 106A of the Copyright Act, which took effect in 1991, provides “certain authors” a right to attribution and to integrity. However, while copyright protects any work fixed in a tangible medium as long as it has a modicum of originality (the itsy bitsy doctrine), only authors of works of visual art have this right.

Such works are narrowly defined by Section 101 of the Copyright Act as “a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or… a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.”

Section 1202 of the Copyright Act forbids providing false copyright management information in order to enable, facilitate, or conceal infringement, and forbids further to remove or alter copyright management information. Artists have been using this section to claim moral rights (see here).

Comments must be received by March 9, 2017.

Image is courtesy of Flickr user mrdanielweir under a CC BY-NC 2.0 license, which includes the moral right of attribution. Moral rights may be provided by contract and included in a license, such as this CC license.

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