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IPL Discussion Moral Rights

IPL Discussion Moral Rights

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Published by Arkhaye Salvatore

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Categories:Types, Research, Law
Published by: Arkhaye Salvatore on Aug 30, 2012
Copyright:Attribution Non-commercial


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Theoretical Foundation of Moral Rights
“When an artist creates, be he an author, a painter, a sculptor, an architector musician, he does more than bring into the world a unique object having only exploitative possibilities; he projects into the world part of hispersonality and subjects it to the ravages of public use...”This passage describes the theoretical foundation of Presidential Decree No. 49(Decree on the Protection of Intellectual Property) which was repealed by theIntellectual Property Code.The law adopts a two-dimensional approach to the protection of intellectual property.1.
Economic right s- property rights which involve the pecuniary or economicelements of exploitation of created works that are recognized in the provisionspertaining to copyright, and the residual economic right of 
"droit de suite." 
Moral rights - personal rights which belong to an artist as creator of the work
Principle of “Droit Moral”
The moral right of an artist to his own creation developed as a doctrine largely through the efforts of 19
century French and German jurists.The term "moral right" as applied to art is derived from the French concept
droit moral 
However, it has been opined that its intended meaning is better expressed by theGerman term
 which means "the right of the author'spersonality."Under the French legal system, the concept of literary and artistic rights involves two basic elements.1.
The first is parallel to the British and American concept of copyright. It is a property right which assures to the artist the exclusive right to control thereproduction and distribution of his creation to the public.2.
The second element is the
"droit moral" 
encompassing "non-property attributes of an intellectual and moral character which give legal expression to the intimate bond which exists between an ... artistic work and its author's personality."*The latter element exists independently of the former.Unlike the property right element, the development of 
"droit moral" 
had at the outsetno basis in statute or code. Instead, the doctrine slowly took shape from the numerousdecisions handed down by French tribunals and courts in the last century.
 Two sweeping changes which became evident in the nineteenth century have beencited as providing impetus to its development. One of these was economic in nature. Andthe other one is a matter of aesthetics.
With the flowering of romanticism in the nineteenth century, the artist's right to "follow the call of his feelings and individual disposition" was emphasized as never before. The work of art was no longer severely restricted by patrons in terms of subject matter, form and content. Rather, it became the personal expression of the artist, revealing his individual  perceptions and sensibilities. Thus, false attribution of work and inter- ference with the integrity of the work by mutilation, alteration, or presen- tation out of context, were increasingly construed as personal attacks on the artist. The public, also imbued with romantic notions about art, was sympathetic regarding moral rights, ...
In the course of time, the doctrine of 
droit moral 
 was embodied in the dualist theory of copyright crystallized in French statute. Partaking of the Latin concept of copyright, thetheory construed the work of the mind as inseparable from the artist and remainedindissolubly attached to the person of the artist, thus "excluding all possibility of anabsolute transfer, the personal, moral element retaining always a pre-eminence over thepecuniary, commercial element in the exploitation of the work." So that by the mere factof creation, an intellectual manifestation of the personality of the artist, the rights of theartist to his creation are vested - pecuniary and moral. The latter includes his right "toenforce the use of his name attached to his work, to oppose any modification of his workand anything that might harm his honor and his reputation."
Moral Right Doctrine
 After decades of redefinition, the moral right of an artist to his creation has finally evolved into the present basic concept of an artist's personal right to protection of hisartistic reputation.It is guaranteed by the Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 1971). Article 6 of the Convention enshrines two basic moral rights of an artist. These are
attribution or paternity 
 which will be discussed later.
Scope of Moral Rights (Section 193, Intellectual Property Code)
Right to Paternity 
(paragraph 1 and 4) 
 The paternity right of an artist consists of:a.
his right to be made known to the public as the creator of his work to preventothers from usurping his work (paragraph 1), and b.
to prevent others from wrongfully attributing to him a work he has not created,or presenting a distorted version of his own work (paragraph 4).
Courts have applied the paternity right broadly. For example, reproducing a work without the author’s name has been held to violate his right. Similarly, the courtshave ruled that an author’s name must appear on all publicity of his or her work, andin the case of joint works, all collaborators have the right to be identified as authors of their work.This right was expounded in the case of 
 where third party was not allowed to write his own name in place of the signature of thecreator on the work.The right of an artist to claim paternity of his work may be exercised as he wishes.It can be used in a negative way, that is, by publishing his work under a pseudonym orkeeping anonymous. Also, he may at any time change his mind and reject hispseudonym or abandon his anonymity. The moral right ensures protection of theidentity of the creator as he has chosen it.In the case of 
Ellis v. Hurst 
the plaintiff-author had published twouncopyrighted stories under the pen name "Lieutenant R.H. Jayne." Forty yearslater, after the plaintiff had acquired a reputation in his own name, the defendantspublished the two stories under the plaintiff's real name. The New York court ruledin favor of the plaintiff, thereby upholding his right to prevent his actual namefrom being used in connection with the two stories, without his consent.The artist is also protected against false imputation of paternity. Public interestand policy have mandated this right to be unassignable.In the English case of 
Lord Byron v. Johnston 
the court granted an injunctionagainst the defendant where the latter advertised for sale certain poems falsely claimed to have been written by the plaintiff.
“…no person has the right to hold another out to the world as the author of literary matter which he never wrote because no one has the right, either expressly or by implication, falsely or untruly to charge another with the composition or authorship of a literary production which he did not write.” 
Right To Create, Alter and Withhold
The second of the rights enumerated in Section 193 constitutes the very basis of all creative work - the
right to create
, "which is a function of the right of individualliberty." A corollary to this right is the right
to create, in whatever form ormedium.
So long as a work of art has not been completely created, t remains a mere expression of its creator's personality, and has no existence beyond that which he tentatively intends to give it. It is only a rough draft, and no one but the artist can have any rights in it. He alone is able to determine when it should be disclosed, put into circulation, and treated as a chattel which may be exploited for profit.
The Rouault v. Vollard Heirs Case

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