The Trouble With Moral Rights

The Trouble with Moral Rights
Author(s): Patrick Masiyakurima

Source: The Modern Law Review , May, 2005, Vol. 68, No. 3 (May, 2005), pp. 411-434
Published by: Wiley on behalf of the Modern Law Review
Stable URL: https://www.jstor.org/stable/3699169
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Patrick Masiyakurima*
It is usually argued that moral rights are severely handicapped by their inconsistent entrenchment
in common law and civilian legal systems. This article argues that the main trouble with moral
rights protection is that the justifications for the existence of these rights are riddled with internal
inconsistencies generated by the vagaries of copyright exploitation. Harmonising moral rights
protection or using moral rights justifications cumulatively may not resolve the theoretical
inconsistencies. Copyright protection must therefore be seriously overhauled if moral rights are
to be widely perceived as vehicles for protecting authors' rights.
INTRODUCTION
The idea that Anglo-American copyright jurisdictions sacrific

the altar of economic expediency while their civilian counte
spiritual interests of authors is of antiquated pedigree.' True,
gence of copyright systems through international harmonisat
cies of modern copyright exploitation diminish the currenc
significantly2 but it still reverberates strongly in discussions on
tection.3 For instance, the patchwork nature of European Un
monisation is often partly ascribed to the difficulties surroun
the different moral rights provisions of various Member St
argues that philosophical divergences between copyright syst
ing, the trouble with moral rights chiefly emanates from acu
tencies in moral rights theories. The genesis of the inconsistencie
part to pervasive commodification of information and the r
* University of Aberdeen. I am grateful to David Vaver, Robin Evans-Jones

ver Masakure for their comments on earlier drafts of this article. All errors and o
statutes cited here were obtained from http://www.wipo.int/clea/en/ and all
checked on 4 February 2005.
1 Eg R. Sarraute,'Current Theory on the Moral Right of Authors and Ar

(1968) 16 AmericanJournal of Comparative Law 465. See also P. E. Geller,'Mus
Caught Between Marketplace and Authorship Norms? in B. Sherman and
Authors and Origins (Oxford: OUP, 1994) 159 and G. Davies,'The Converg
Authors' Rights: Reality or Chimera?' (1995) 26 IIC 964.
2 A. Frangon,'Authors' Rights Beyond Frontiers: A Comparison of Civil L
Conceptions' (1991) 149 Revue Internationale du Droit d'auteur (RIDA) 2, 16-2
3 Eg Theberge v Galerie dArt du Petit Champlain Inc (2002) SCC 34 (BinnieJ).
4 Eg L. Bently, Between A Rock and A Hard Place (London: Institute of Emplo
and G. Lea,'Moral Rights: Moving From Rhetoric To Reality In Pursui
nisation' in E. Barendt and A. Firth (eds), Yearbook of Copyright and Media L
OUP, 2002) 61, 78. See also M. Slokannel, A. Strowel and E. Derclaye,'Mor
text of the Exploitation of Works through Digital Technology' http://e
internalmarket/copyright/docs/studies/etd1999b53000e28_en.pdf for diffe
moral rights harmonisation.
? The Modem Law Review Limited 2005 (2005) 68(3) MLR 411-434
Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, US

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among copyright stakeholders. It is hoped that the article will contribute to the
growing literature on the intractable conflicts among copyright stakeholders.
In terms of structure, the first part of the article provides a brief description of
moral rights while the remainder of the essay delineates the inherent weaknesses
of moral rights theories and proposes modest reforms in this area. The term
'author' is used throughout the article to describe the various'creators' of copyright
materials while the word 'work' is used as an umbrella term covering different
copyright subject matter. Despite the different theoretical underpinnings of civi-
lian and common law copyright systems, cases and materials from both legal tra-
ditions are used in the article to demonstrate the existence of common moral
rights principles. Additionally, given that different jurisdictions have different
moral rights provisions, a comparative analysis of moral rights yields a complete
theoretical picture.
Moral rights
Gradual international recognition of moral rights as instruments for preserving

authors' non-pecuniary interests does not mask the serious controversies sur-
rounding the boundaries of these rights. Dualists treat economic and moral rights
separately while monists integrate the two rights. Additionally, economics and
respect for the sanctity of contracts force common law jurisdictions to adopt the
lowest international common denominator of moral rights protection5 and to
harbour the doubtful view that other remedies adequately protect authors' rights.6
Despite these doctrinal and practical differences, some common moral rights can
be gleaned from different copyright laws.' The right of divulgation allows
authors to control initial publication of their work8 while the paternity right
requires identification of authors, protects pseudonymous authors and prevents
false attribution of authorship.9 The right of integrity is usually predicated on
minimising harm to authors' honour or reputation arising from unauthorised
interferences with copyright works after their creation.10 Authors may also rely
on their right of repentance to withdraw their views from circulation provided
they indemnify copyright owners for losses generated by the withdrawal and
resell the work to its previous owner on the old terms if they change their mind.1
Lastly, authors may access their alienated works for limited purposes including
copying the work or collecting evidence.12 A review of the relevant authorities
5 See Berne Convention (Paris Act 1971 828 UNTS 221) Art 6bis.
6 W R. Cornish,'Moral Rights under the 1988 Act' (1989) 11 EIPR 449.
7 Other pseudo 'moral rights' including the UK's right of privacy enshrined in the Copyright,
Designs and Patents Act 1988 (CDPA), s 85 will not be discussed in this article.
8 Eg French IP Code Art L 121-2.
9 Z. Radojkovic,'The right to the paternity' (1965) 47 RIDA 168.
10 Eg Spanish Copyright Act Art 14(iv); cf French IP Code Art L121-1.
11 M. A. Roeder,'The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Crea-
tors' (1940) 53 HarvLR 554.
12 S. Str6mholm, 'Droit Moral-The International and Comparative Scene from a Scandinavian
Viewpoint' (1983) 14 IIC 1, 26.
412 0 The Modem Law Review Limited 2005

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Patrick Masiyakurima
yields four cardinal theories which underpin the existence of moral rights and it is
to these that we now turn.
Personality
The Romantic idea that copyright works are imbued with their authors' person-
ality"3 and must therefore be protected from unauthorised interferences is largely
derived from Hegel's theory of property ownership which predicates self-actuali-
sation on control of external objects.14 Personality rights inhere in individuals
irrespective of compliance with formalities"5 and they encompass various digni-
tary interests including honour and reputation, privacy, physical integrity and
freedom of belief and expression."6 In the moral rights context, the right of pater-
nity preserves the privacy of pseudonymous authors while the right of divulga-
tion prevents widespread dissemination of unpublished private information. In
most jurisdictions, the right of integrity is designed to minimise harm to authors'
honour or reputation arising from prejudicial changes to finished works."7 By
affording authors an opportunity to veto publishing decisions, the right of divul-
gation indirectly protects authors' reputational interests while the right of pater-
nity prevents injury to reputation arising from misattribution of authorship.18
The right of integrity prevents adulteration of authors' expressions while acts of
repentance may amount to an exercise of freedom of belief and expression. In rare
circumstances, misusing a work to propagate a message which is diametrically
opposed to its author's views may cause the author irreparable harm if it severely
disturbs her interaction with the public.
The relationship between moral rights and personality hinges on singular indi-
vidual creativity. However, three arguments cloud this lofty vision of authorship.
First, since copyright works usually evolve from existing ideas, a pedantic enfor-
cement of moral rights disproportionately benefits current authors, impedes
transformative uses of copyright works and potentially creates the spectre of irre-
concilable personality rights especially where adapters such as parodists rely on
extensive and unsympathetic uses of earlier texts for their own self-actualisation.
In Zorine and VAAP v Le Lucernaire, the court enforced the author's moral rights
despite accepting that adapters may infuse their own personality in transformed
works." In that case, despite acknowledging that an adaptation of a Russian play
into a French theatrical performance was highly original, the court held that the
political nature of the adaptation infringed the playwright's moral rights. Argu-
ably, the idea/expression dichotomy resolves some of these problems by sifting an
13 M.Woodmansee,'The Genius and the Copyright: Economic and Legal Conditions of the Emer-
gence of the Author' (1984) 17 Eighteenth-Century Studies 425.
14 M. J. Radin,'Property and Personhood' (1982) 34 StanLR 957 and J. Hughes,'The Philosophy of
Intellectual Property' (1988) 77 Georgetown LJ 287, 330.
15 H. Desbois,'The Moral Right' (1959) 19 RIDA 120 125.
16 R. Pound,'Interests of Personality' (1914) 28 HarvLR 343, 445.
17 Snow v The Eaton Centre (1982) 70 CPR (2d) 105 (Canada); Belgian Copyright Act Art 1(2).
18 Clark v Associated Newspapers Ltd [1998] 1 All ER 959.
19 [1987] ECC 54 and Danmarks National Bank v F [1995] ECC 147 cf Regine Deforges v Trust Company
Bank [1992] ECC 338 and SA Les Editions Salabert v Thierry Le Luron et al [1987] ECC 48.
? The Modem Law Review Limited 2005 413

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author's individual contribution from other cultural ideas but its nucleus is a
recognition of the omnipresence of 'foreign' personalities in copyright works.20
Similarly, the safe harbours offered by fair dealing to transformative users are
diminished by judicial reticence to condone 'misappropriation' of copyright
works.21 Secondly, collaborative and derivative works such as films may not reflect
the individual personality of any one author.22 Thirdly, ascertaining the dominant
personality expressed in copyright works is fraught with difficulties. In Christo v
Agence Sygma,23 the court prohibited users from taking photographs of a draped
cultural landmark despite acknowledging the centrality of the landmark to the
author's work. Similar problems confront works based on human subjects. Focus-
ing on authors' moral rights exclusively raises proportionality issues while grant-
ing moral rights to subjects24 would negate the author-based foundations of
moral rights protection. All these conflicts emanate from commodification of
information which forces copyright owners to rely on various cosmetic facades
including individual authorship to reduce the harmful effects of competing
claims on copyright ownership and exploitation.
At first blush,'originality' arouses powerful visions of superlatively unique crea-
tions but this concept is usually confined to identifying the source of copyright
works rather than artistic merit.25 Even in civilian jurisdictions with their broad
ranging rules governing unfair competition and strong emphasis on protecting
outstanding works there is a wide chasm between theory and practice. For
instance, in Societe Microfor v Sal Le Monde,26 the Court of Cassation ruled that
newspaper titles were original copyright works. The genesis of this state of affairs
can be traced to judicial reticence to make controversial aesthetic decisions,27 pre-
serving a space for authors of differing abilities to express themselves, and to fears
that a strict test of originality would be a charter for misappropriation of banal
works.28 Although there are international moves to harmonise the standard of
originality upwards,29 protecting esoteric works including examination papers,
telephone directories, football coupons, case headnotes and banknotes30 detracts
from the singularity of individual self-expression normally associated with per-
20 Eg Designers Guild Ltd v Russell Williams (Textiles) Ltd [2001] 1 All ER 700 (HL).
21 Ashdown v Telegraph Group Ltd [2001] 3 WLR 1368 (CA) cf CCH Canadian Ltd v Law Society of Upper
Canada (2004) 236 DLR (4th) 395.
22 P. Kamina, Film Copyright in the European Union (Cambridge: CUP, 2002) 291-292.
23 [1987] ECC 228.
24 See CDPA 1988, s 85.
25 Eg Ladbroke v William Hill [1964] 1 All ER 465; Hay v Sloan (1957) 2 DLR (2d) 397.
26 [1988] ECC 297; also Babolat Maillot Witt SA v Pachot [1987] ECC 218, SA Harrap France and Harrap
Ltd v SA Masson Editeur and Ors [1991] ECC 322 and Sadrl Media and Others v Gerard Scher and Anor
[1998] ECC 101 cf Schweizerische Interpreten-Gesellschaft and Others v X and Z [1986] ECC 384 and Re
Copyright in Scientific Works [1989] ECC 232.
27 Eg Bleisten v Donaldson Lithographing Co 1888 US 239 (1903).
28 W R. Cornish, Intellectual Property Omnipresent, Distracting, Irrelevant? (Oxford: Clarendon Press,
2004) 45.
29 Eg Software Directive Art 1(3), Duration Directive Art 6 and Database Directive Art 3(1).
30 See University ofLondon Press Ltd v University Tutorial Press [1916] 2 Ch 601; Desktop Marketing Systems
Pty Ltd v Telstra Corp Ltd [2002] FCA 112 (Australia); Football League v Littlewoods [1959] Ch 637;
CCH Canadian Ltd v Law Society of Upper Canada (2004) 236 DLR (4th) 395 and Danmarks National
Bank v F [1995] ECC 147 respectively; though cf Feist Publications Inc v Rural Telephone Service Co 111
US 1282 (1989).

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sonality rights, privatises large quanta of information, proscribes transformative

uses of existing works and exposes the clever use of authors to disguise the injus-
tices of strengthening copyright owners' rights.31
Modern copyright exploitation often requires collaboration by teams of salar-
ied authors and necessitates deployment of vast financial resources. Given that
companies invest in and control the creative process, these artificial legal persons
are regarded by some jurisdictions as 'authors' of works created in the course of
employment.32 Ascribing authorship to companies with little discernible person-
ality interests is designed to minimise impediments to copyright exploitation but
it severs the symbiotic links between moral rights and individual creativity. Instead
of denying employees their authorship and moral rights, the best solution would
have been to limit spurious moral rights claims by requiring authors of collabora-
tive works to enforce their moral rights jointly.33 This approach would limit
moral rights litigation to cases involving genuine interferences with copyright
works. On the other hand, since employers are deeply ensconced in the creative
process, any resulting works are a manifestation of their instructions rather than
an embodiment of authors' personality and should therefore not benefit from
moral rights protection.34 However, some employed authors have a high degree
of latitude in complying with their employers' instructions to warrant the infu-
sion of their own personality in the final product.35 All these tensions highlight
the inevitable conclusion that apart from advancing their personality, authors also
create copyright works for economic reasons.36
Reproduction facilitates economic exploitation of copyright works,37 opti-
mises avenues for widespread dissemination of authors' personality and mitigates
the effects of destruction by providing exact replicas of artefacts. However, it is
difficult to approximate the personality interests contained in exact copies of a
work. Arguably, given that reproduction does not normally involve any addi-
tional creativity on the author's part, it is unnecessary to confer moral rights pro-
tection on exact copies of an original work. However, if the author intended to
disseminate his personality to a wide audience then exact copies of the work must
be protected if the author's expressions are to reach their target in pristine form.
These concerns notwithstanding, private interferences with exact and authorised
copies of a mass-produced work do not attract serious opprobrium because the
primary work remains a vessel of its author's personality. On the other hand, exact
and unauthorised copies implicate paternity rights if authorship of the work is
unacknowledged, disrupt the authenticity of the personality interests relayed to
the public if the work is altered and infringe the author's privacy if the original
work was unpublished. Serious problems are also generated by works that are
31 B. Kaplan, An Unhurried View of Copyright (New York: Columbia University Press, 1967) 6, 8.
32 See USA Copyright Act 1976, s 101.
33 Champard v SA des Editions Legislatives et Administratives [1981] ECC 521; Ponty v Chamberland [1992]
ECC 59.
34 H. Hansmann and M. Santilli, Authors' and Artists' Moral Rights: A Comparative Legal an
Economic Analysis' (1997) 26Journal of Legal Studies 95, 134; cfJ. Barta,'Copyright and Employee
Creativity' (1984) 121 RIDA 68.
35 Jean-Marc Vincent v SA Cuc Software International and Others [2001] ECC 21.
36 E. Hettinger,'Justifying Intellectual Property' (1989) 18 Philosophy and Public Affairs 31.
37 H. C. Jehoram, Copies in Copyright (The Hague: Sijthoff& Noordhof 1980) 6.
? The Modern Law Review Limited 2005 415

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transposed from their original medium onto a different surface. In Thdberge v Gal-
erie dA2rt du Petit Champlain Inc,38 the Canadian Supreme Court confined reproduc-
tion to 'multiplication' when it held that defendants who transferred posters onto
canvasses did not reproduce the original work. However, these reproductions can
infringe authors' moral rights if they do not identify the author and harm artistic
reputation if the public believes that the author's creativity is governed by com-
mercial imperatives or if botched copies create the impression that the author
poorly executed his work."39 The problem of botched copies may be addressed
by authors mounting a defamation claim against copiers40 who tarnish their artis-
tic reputation but defamation claims are predicated on publication which may not
have taken place in some cases. It is also unwise to use moral rights in cases where
copies of a work are used to make similar artefacts because to do so would pro-
scribe imitation, which is the lifeblood of creativity and competition.
Personality's interstitial links with physical objects may promote obsessive
interactions between authors and their works. This 'object-fetishism'41 may pre-
vent authors from developing other aspects of their personality and lead to private
censorship. In 1950, Giorgio de Chirico unsuccessfully attempted to use moral
rights to prevent an exhibition of his earlier works at the Venice Biennale42 while
the artist in Snow v The Eaton Centre Ltd successfully objected to anodyne and fleet-
ing interpretations of his sculpture.43 In Salinger v Random House,44 a reclusive
author successfully prevented an unauthorised biographer from accessing his pri-
vate correspondence while Stanley Kubrik, a film director, failed to prevent
balanced criticism of A Clockwork Orange by a terrestrial television channel.45 In
all four cases, the authors were minded to censor unauthorised exploitation of
their work. There is no litmus test for separating fetishism from genuine expres-
sions of personality. To avoid this difficulty, various jurisdictions generally use an
objective test when enforcing the right of integrity.46 Compulsory licensing may
also be used to prise copyright works from their authors' control but courts and
legislators use this remedy sparingly because it may reduce the royalties paid to
copyright owners, force individuals to speak to unfamiliar or unwanted audiences
and may infringe an author's privacy if the work is unpublished. The public inter-
est and fair dealing defences may also be used to disclose controlled information
but their practical application is redolent with inconsistencies.47
38 [2002] SCC 34
39 Dubuffett v Regie Nationale des Usines Renault [1980] ECC 417.
40 Eg Archbold v Sweet [1832] 172 ER 947.
41 SeeJ.W. Harris, Property andJustice (Oxford: OUP, 1996) 256-258 for a general discussion of fetish-
ism.
42 See J. H. Merryman and A. E. Elsen, Law, Ethics and the Visual Arts (The Hague: Kluwer,
2002) 316.
43 (1982) 70 CPR (2d) 105.
44 Salinger v Random House Inc and Anor 811 F 2d 90 (2d 1990).
45 Time Warner Entertainments Company LP v Channel FourTV Corporation plc and Anor [1994] EMLR 1.
46 Spanish Copyright Act Art 14(iv); German Copyright Act s 39(2); Morrison Leahy Music Ltd v
Lightbond and others [1993] EMLR 144 cf Snow v The Eaton Centre Ltd above; French IP Code Art
L121-1; but see C. McColley,'Limitations on Moral Rights in French Droit d'auteur' (1998) Copy-
right Law Symposium 423.
47 Hyde Park v Yelland [2001] 3 WLR 1172 (CA); Ashdown v Telegraph Group Ltd [2001] 3 WLR 1368
(CA).
416 t The Modem Law Review Limited 2005

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Destruction of artefacts may be wilful, accidental, incremental or be a conse-

quence of war, unsympathetic conservation or legitimate uses of copyright
works.48 Various forms of partial destruction including deletion, mutilation or
distortion are usually outlawed but complete destruction is countenanced because
it may not harm authors' reputation and its prohibition may interfere with vested
property rights.49 At first glance, all forms of complete destruction are equally
deleterious to authors' personality interests but on closer inspection, the identity
of the destroyer is crucial to any assessment of complete destruction's effects on
personality rights. Destruction of copyright works by their authors may represent
a desire to project their personality through other means and may protect artistic
reputation if the destroyed works are of an unsatisfactory quality. However, this
destruction affects users because it leaves a significant lacuna in the references
available for measuring an author's overall career. On the other hand, wilful
destruction by buyers of copyright works eradicates the very objects that perso-
nify authors and diminishes opportunities for generating future commissionss5
especially where the destroyed work is not widely reproduced. This type of
destruction deserves the strongest opprobrium because it may be possible to safe-
guard the author's personality interests by obliging the copyright owner to offer
the work to its author before destroying it or to reproduce or photograph the
work if it cannot be returned to its author.51 Similarly, state-sponsored destruction
such as the destruction of the Stari Most Bridge in Bosnia attracts serious criticism
because it is a censorship tool and it can be prevented by securing the work ade-
quately. Destruction of copyright works by an author's heirs raises nettlesome
conflicts between preserving an author's vision of himself and respecting the priv-
acy interests of those who must live in the shadow of that vision.Where the public
destroys copyright works, it is intuitive to protect authors because they may lose
the physical embodiment of their personality but it is equally important to ensure
that users have sufficient latitude to reject works that confront their own person-
ality. For instance, the decapitation of Lady Thatcher's statue symbolised an indi-
vidual's deep-seated contempt of the political values she espoused.52 Although the
statue's destruction may have exceeded the boundaries of free speech, it neverthe-
less generated conflicts between personality and free speech rights. All these
imponderables make the task of formulating an appropriate legislative framework
for regulating destruction of copyright works almost Herculean.
A related point involves forced removals of context-specific works from their
intended environment and exhibitions of copyright works in inappropriate con-
texts. At face value, this treatment may not harm the personality of authors
because the works are not destroyed or physically transformed and they can be
redisplayed elsewhere."3 However, forced removals and prejudicial exhibitions
48 D. Gamboni, The Destruction ofArt (London: Reaktion Books, 1997).

49 J. H. Merryman,'The Refrigerator of Bernard Buffet' (1976) 27 Hastings LJ 1023,1047.
50 A. Dietz,'The Artist's Right of Integrity Under Copyright Law-A Comparative Approach' (1994)
25 IIC 177, 191.
51 Swiss Copyright Act, Art 15.
52 L. Smith and D. Alberge,'HowThatcher lost her head for crimes of state' The Times 5 July 2002.
25 IIC 177,192.

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may alter the work's intended meanings. Arguably, the uprooting of Richard
Sierra's Tilted Arc54 from its prime location diluted the artist's meaning even if the
work was capable of being displayed elsewhere. The main drawback of this argu-
ment is that since context-specific works are often displayed in public places, the
public should not be forced to appreciate works which seriously offend its aes-
thetic judgment."ss Given that context-specific works may heavily rely on works
created by other authors for their overall success, the spectre of conflicting moral
rights would arise if the various authors were to argue that the integrity of their
work is compromised by the inclusion of a context-specific work. Additionally,
despite seriously annihilating the author's personality, removal of context specific
works may offer the best compromise between author and user rights because the
work is preserved and may be redisplayed in its intended environment if public
opinion changes.
Commercial pressures may force authors to forgo their rights in advance espe-
cially where a work is produced collectively or where it must be adapted to suit
different media. Waivers relating to future works can be justified because they do
not assault authors' reputation since a work approximating the author's personal-
ity does not exist at the conclusion of the contract.56 Waivers may also enable
authors to project their personality to new audiences through future adaptations
of their work. Additionally, the proceeds from waivers may be used to develop
other aspects of authors' personality57 In the event that copyright owners engage
in sharp practices, various remedies including undue influence and unconscion-
ability are at authors' disposal.58 Conversely, systematic waivers imply that authors
have no control over their personality. A more troubling question is whether a
person can consent to serious assaults on her personality. True, some authors
may be prohibited from exercising their rights of freedom of expression in the
interest of national security59 but superimposing commercial interests over per-
sonality rights exposes budding authors to rampant commercial exploitation.60
Additionally, impecunious budding authors may not have access to the courts
and if they do, the application of common law doctrines would yield uncertain
results.61
One of the lowest common denominators of personality interests is that they

terminate at their holder's death. Moral rights protection departs from this usual
scheme by exceeding the natural life of authors. Although this disparity is usually
ascribed to the immortality of art and the perpetuation of the spiritual interests of
authors through their work,62 this approach does not explain why these interests
54 Serra v US General Services Admin 847 F 2d 1045 (1988); Phillips v Pembroke Real Estate Inc 288 F Supp
2d 89 (2003).
55 J. L. Sax, Playing Darts with a Rembrandt (Michigan: Michigan University Press, 1999) 27.
56 Gabon v Societe Nationale De7eJlevision En Couleurs Antenne 2 [1988] ECC 316.
57 J. Hughes,'The Philosophy of Intellectual Property' (1988) 77 Georgetown LR 287, 344.
58 Eg Schroeder Music Publishing Co Ltd v Macaulay [1974] 3 All ER 616 and Clifford Davis Management
Ltd v WEA Records Ltd and Anor [1975] 1 All ER 237.
59 Att Gen v Guardian Newspapers [1990] AC 109.
60 Cornish, n 28 above, 49-50.
61 D. Vaver, "'Authors' Moral Rights-Reform Proposals in Canada: Charter or Barter of Rights for
Creators?' (1987) 25 Osgoode Hall LJ 749, 777.
62 W Strauss,'The Moral Right of the Author' (1955) 4 Americanjournal of Comparative Law 506, 517.
418 C The Modern Law Review Limited 2005

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should be preserved for a specific period after an author's death. Arguably, perpe-
tual moral rights address this shortcoming but they may strangle adaptations of
famous works indefinitely. Another vexing issue raised by post mortem moral
rights protection is identifying the guardian of the author's personality after her
death. Although heirs are the natural candidates for preserving their illustrious
ancestor's personality, they may fail to act, use moral rights abusively,63 permit
prejudicial changes to copyright works or destroy the works for various reasons
including enhancing the economic value of the remaining works64 or securing
their own privacy. Given that moral rights are designed to ensure that the public
is acquainted with an author's personality as its author intended it,65 it may be
competent for public interest organisations to enjoin heirs' abuses of copyright
works. Although public bodies rarely enforce moral rights66 due to financial con-
straints and inertia, in Foujita v Sarl ACR and others,67 the French Minister of Cul-
ture successfully intervened in a case where an heir abused her moral rights by
failing to allow publication of a book on her distinguished husband's life and
career. However, this decision may cause difficulties if heirs further their own eco-
nomic interests by permitting serious and prejudicial changes to copyright
works.68 Where that is the case, it may be inappropriate for a court to deprive heirs
of an opportunity to benefit from the economic advantages attached to their fore-
bear's works. These discussions mask the inescapable conclusion that copyright
duration is largely designed to confer limited monopolies on enterprises that
invest in cultural products.
Freedom of expression
Some authors express their views solely for circulating information necessary for
exercising democratic choices,69 fostering truth70 or promoting self-actualisa-
tion.7' Generally, copyright is congruent with freedom of expression because it
may provide the economic incentives required for creating socially useful expres-
sion.72 Where appropriate, various copyright internal balancing measures includ-
ing originality, the idea/expression dichotomy, compulsory licensing, the public
interest defence and fair dealing preserve access to these cultural expressions.73 For
instance, in Fabris v SA Nationale de Television France 2,74 the court subordinated an
63 Eg Widmaier v SPADEM and Others [1993] ECC 38.

64 Sax, n 55 above, 146.
65 Of course, the author's intentions must be interpreted objectively to minimise moral rights
abuses.
66 E Pollaud-Dulian,'Moral Rights in France,Through Recent Case Law' (1990) 145 RIDA 126, 244.
67 [1988] ECC 309.
68 Sax, n 55 above, 146.
69 A. Meiklejohn,'The First Amendment is an Absolute' [1961] Supreme Court Review 245.
70 E. Barendt, Freedom of Speech (Oxford: OUP, 1985).
71 E Schauer, Free Speech: A Philosophical Enquiry (Cambridge: CUP, 1982) chs 4-5.
72 W M. Landes and R. A. Posner, An Economic Analysis of Copyright Law' (1989) 18 Journal of
Legal Studies 325, cf S. Breyer,'The Uneasy Case for Copyright: A Study of Copyright in Books,
Photocopies, and Computer Programs' (1970) 84 HarvLR 281.
73 N.W. Netanel,'Copyright and a Democratic Civil Society' (1996) 106 Yale LJ 283.
74 [2000] ECC 258.

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author's copyright to the vital importance of disseminating news to the public.

The free speech benefits of moral rights protection are pronounced in cases invol-
ving expressions created by burgeoning authors who may lack the opportunity to
ventilate their ideas in widely disseminated media. For instance, the paternity
right prevents misattribution of expressions and associates or dissociates authors
with their expressions while the right of integrity preserves an author's message
from unauthorised interferences. Generally, the self-actualisation basis of freedom
of expression is a component of personality rights75 but the free speech justifica-
tion for moral rights protection advanced here largely focuses on the public ben-
efit of widespread dissemination of authentic cultural information. Additionally,
it is conceivable that expressions created by some authors may promote vital pub-
lic interests without reflecting their authors' personality.
An exercise of the right of disclosure may significantly impede freedom of
expression especially in cases involving important unpublished information. Sev-
eral factors influence judicial and legislative policies in this area. First, the right of
disclosure may safeguard a private space where authors may distil their ideas
before publication. During this creative period, user access to the work is pro-
scribed. This temporary censorship is usually countenanced because it contem-
plates eventual authorised disclosure of the information76 and prevents
misappropriation of valuable unpublished information by subordinating users'
freedom of expression to protection of copyright owners' commercial interests.77
Apart from safeguarding the creative environment, the right of disclosure may be
congruent with the self-actualisation basis of freedom of expression because it
entitles authors to express ideas which best encapsulate their personality when
they are ready to do so. However, there is a danger that publishers may refuse to
publish commercially risky expressions7" or the author may decide against pub-
lishing the information. Even if the copyright work is eventually published,
delayed publication may rob the work of its relevance to current debates. In the
hands of overzealous heirs, the right of disclosure may also be a useful tool for
censoring disclosures of embarrassing family secrets. For example, in Cohen and
Champigny v Chain and Others,79 a deceased author's heirs successfully relied on
the right of disclosure to curtail widespread dissemination of details of their pre-
decessor's scandalous sexual life. Secondly, judges' are reluctant to condone inva-
sion of authors' privacy by sanctioning unauthorised disclosures of unpublished
works.8o However, using copyright to prevent widespread dissemination of pri-
vate information is antithetical to copyright policy because it may protect the
ideas or facts in a copyright work. Thirdly, courts may use copyright to minimise
disclosures of confidential information."8 The anti-dissemination effects of the
75 Pound, n 16 above, 445.

76 Harper & Row, Publishers Inc v Nation Enterprises 471 US 539 (1985), 555.
77 Ashdown v Telegraph Group Ltd [2001] 3 WLR 1368 (CA); Hyde Park Residence Ltd v Yelland [2000] 3
WLR 215 (CA).
78 Morang & Co v Le Sueur (1911) 45 SCR 95 (Canada); Malcolm v Oxford University Press [1994] EMLR
17.
79 [1983] ECC 318.
80 T. DeTurris,'Copyright Protection of Privacy Interests in Unpublished Works' [1994] Annual Sur-
vey of American Law 277, 288.
81 Beloff v Pressdram Ltd [1973] 1 All ER 241, Hyde Park Residence Ltd v Yelland, n 77 above.
420 ? The Modem Law Review Limited 2005

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right of disclosure are exacerbated by courts' reluctance to condone non-transfor-

mative uses of copyright works.82 Thus, mere disclosure of important informa-
tion may not ground a fair dealing or public interest defence in some
jurisdictions.83
At face value,'originality' fosters dissemination of high quality information to
the public. Coupled with a proper application of the idea/expression dichotomy
and other copyright exceptions it also ensures that unprotected expressions are
available for subsequent speakers. However, save for a few exceptions,84 commer-
cial necessities often mean that 'originality' generally focuses on the effort and skill
invested in creating a copyright work rather than creativity.85 There is something
to be said for this approach. Individuals of varying ability must be afforded
opportunities to express themselves freely. A low test of 'originality' addresses this
concern by extending copyright protection to expressions created by less able
authors. Nevertheless, a low test of 'originality' lends itself to serious criticism
because it fences off large quanta of information thereby overprotecting earlier
speakers at the expense of subsequent users. This shortcoming is exacerbated by
the expansive interpretation of substantial infringement,86 the weaknesses of the
idea/expression dichotomy, and the constriction of copyright exceptions such as
fair dealing which limit public access to popular expression.87
Copies present the free speech basis of moral rights protection with an identical
dilemma. First, given the ease of distribution of cultural expressions on the inter-
net and in other cultural media, authorised reproductions of copyright works
optimise the avenues for widespread dissemination of an author's authentic
expressions. The availability of copies of a work may also ameliorate the negative
effects of destruction because authors may ventilate their opinions in the remain-
ing copies. Secondly, a rigid treatment of unauthorised copies of a work impedes
adaptations of popular expressions and may cause an artificial scarcity of informa-
tion. Most jurisdictions balance these conflicting ideals through copyright excep-
tions sanctioning unauthorised uses of copyright works.88 However, this
accommodation creates its own problems because it largely depends on a factual
analysis of individual cases. Consequently, the uncertainties surrounding the var-
ious exceptions may chill free speech because users may not have advance knowl-
edge of what constitutes legitimate copying.
'Complete destruction' censors an author's views especially where the work is
not mass-produced. In the 1950s or 1960s, Lady Churchill effectively censored an
unflattering portrait of her distinguished husband by secretly destroying it. Simi-
larly, the Rockefellers censored Diego Rivera's mural denouncing the excesses of
capitalism by ordering its destructive removal from one of their flagship offices.
82 Rv]ames Lorimer & Co Ltd (1984) 1 FC 1065.

83 Ibid.
84 Eg Art 3(1) of the Database Directive, Metix (UK) Ltd and Anor v G. H. Maughan (Plastics) Ltd and
Anor [1997] FSR 718 and Lambretta Clothing Co Ltd v Teddy Smith (UK) Ltd [2005] RPC 6.
85 A. Birrell, Copyright in Books (London: Cassell, 1899) 144.
86 Designers Guild Ltd v Russell Williams (Textiles) Ltd, n 20 above.
87 Eg Art 6 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on
the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information
Society, OJ L 167, 22.6.2001.
88 Eg UK CDPA 1988, s 29 et seq.

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This form of censorship must be reconciled with the possibility that individuals
may express themselves by destroying copyright works expressing polarising
views.89 For instance, the stage-managed destruction of Saddam Hussein's statue
by an Iraqi crowd and the American army in central Baghdad expressed the end of
a much-maligned dictatorship. Arguably, these notorious destructions have the
paradoxical effect of disseminating the views expressed by the work widely but
they remove the means of verifying the expressions. A potentially irresistible
argument which can be mounted against political destruction is that it is a dispro-
portionate and wasteful response to the messages conveyed by copyright works.
Political destruction diminishes a nation's cultural patrimony and ignores the pos-
sibility that time may purge the political connotations of the work.90 Serious pro-
blems also arise if authors destroy their original works. On the one hand, it may
be argued that authors who withdraw their expressions from the public are exer-
cising their personality rights but users who are familiar with the destroyed
expressions may lack a ready reference for the views that affected them. However,
the potency of this argument is seriously weakened if the work in question was
produced en masse.
Various factors including encryption technologies91 and the weakness of copy-
right's internal balancing processes limit access to authors' expressions thereby
diminishing the free speech benefits of moral rights protection.92 Authors and
copyright owners are animated by several considerations when they proscribe
access to copyright works. For instance, some authors and their heirs may wish
to preserve their privacy by withholding publication of personal information and
users who trespass this zone of personal autonomy may breach the right of dis-
closure. In a French case, the disaffected heirs successfully relied on their moral
rights to limit the dissemination of excoriating criticisms of their predecessor's
intellectual rigour and moral turpitude.93 Other authors may rely on their moral
rights to limit access to their less important works or maximise their economic
returns. For instance, Giorgio De Chirico relied on his moral rights to censor an
exhibition of his earlier works at the Viennese Biennale. However, a German
court recognised the benefits of freedom of expression when it allowed an anti-
smoking lobby group to use the claimant's work to propagate an anti-smoking
message.94 Apart from these considerations, an exercise of the right of repentance
may enhance authors' personality but it prevents access to works that are not mass-
produced. These deficiencies explain why numerous jurisdictions protect users'
freedom of expression by requiring proof of harm to honour or reputation when
authors enforce the right of integrity.95
89 J. L. Sax, n 55 above, 17.

90 D. Gamboni, The Destruction of Art (London: Reaktion Books, 1997) 22.
91 S. Dusollier, 'Exceptions and Technological Measures in the European Copyright Directive of
2001-An Empty Promise' (2003) 34 IIC 62.
92 C. B. Graber and G. Teubner, Art and Money: Constitutional Rights in the Private Sphere?'
(1998) 18 OJLS 61, 68.
93 Editions Gallimar~ Jean Camus and Catherine Camus v Hamish Hamilton [1985] ECC 574.
94 Re the Parodying of CigaretteAdvertising [1986] ECC 1.
95 Eg Belgian Copyright Act, Art 1(2); German Copyright Act, s 39(2) and Spanish Copyright Act,
Art 14(iv).
422 ? The Modern Law Review Limited 2005

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Jurisdictions which exclude moral rights protection from works created by

employees in the course of their employment96 potentially allow corporate greed
to stifle weak voices.97 However, it may be posited that employees who enter into
employment contracts vesting future copyright works in their employers may be
deemed to have waived their right to control future uses of their expressions. The
unanswerable objection to this argument is that generally, assignment of copy-
right does not affect moral rights.98 A more persuasive argument is that authors
who create in pursuance of an employment contract may not rely on their right to
speak freely because their employers demarcate the parameters and exploitation of
the speech. Additionally, given the amount of collaboration that takes place in
most workplaces, granting moral rights to individual employees would also
impede future adaptations of copyright works if any one of the authors objects
to the adaptation. Although authors of commissioned works who create under
nearly similar circumstances retain their moral rights, the degree of supervision
required for commissioned works is sufficiently low to allow the inference that
the author largely expresses her own views in the finished product. In any event,
the author of a commissioned work retains her copyright in the work. Even if
works created by employees were to benefit from moral rights protection, serious
problems may surface after the employment contract is terminated. On balance,
since the work would have been created for a specific employer, employees must
not use the work as they please. These shortcomings demonstrate the problems
caused by trying to justify the allocation of what are essentially individual rights
to artificial legal persons who are mainly motivated by the profitability of their
various undertakings. Apart from posing problems to copyright theory, the par-
ticipation of companies in the distribution of artistic discourse is usually coloured
by financial considerations which may exclude important but financially unat-
tractive expressions from public circulation.99 This danger is largely ignored
because courts may not see any urgency in resolving human rights disputes
between publishers and users even if the disputes implicate issues of cardinal pub-
lic importance.100
Interferences with freedom of expression through waiver of moral rights do
not chart new territory. Individuals may enter into contracts compromising their
right to speak freely for various purposes including protecting national security.
Nevertheless, there is a vast gap between protecting vital public interests and pro-
moting the economic interests of copyright owners. A relentless pursuit of copy-
right owners' rights may force powerful financial interests to override or distort an
author's message through botched or unsympathetic adaptations. Additionally, it
may be argued that routine waivers may permit destruction of copyright works
thereby expunging authors' expressions. These risks are usually associated with
burgeoning authors who may lack the muscle to force copyright owners to treat
their expressions with consideration. However, these arguments must be recon-
96 Eg USA Copyright Act, s 101.

97 Y. Gendreau, 'Copyright and Freedom of Expression in Canada' in P. Torremans (ed), Copyright
and Human Rights (The Hague: Kluwer, 2004) 21, 24.
98 Eg UK CDPA 1988, s94.
99 Malcolm v Oxford University Press [1994] EMLR 17.
100 R. Abel, Speech and Respect (London: Sweet & Maxwell, 1994) 48-58.

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ciled with the possibility that waivers may also bolster freedom of expression
especially if they allow sympathetic adaptations of copyright works. Where such
authorised adaptations occur, waivers allow authors to propagate their expressions
to potentially new audiences.
Sometimes, copyright's limited duration may guarantee the authenticity of
expressions until they withstand the test of time. However, there is little empirical
evidence to buttress this claim. In fact, some famous expressions have survived in
the absence of copyright protection. In any event, heirs may allow significant
interferences with their predecessor's expressions during the subsistence of copy-
right. Coupled with the low test of originality and the imprecision of other copy-
right tools, an unduly long copyright term impedes access to contemporary
information. In some instances, the end of the copyright term does not enhance
public access to copyright works because authors and their heirs may refuse to sell
or disclose unpublished information. Even where the information is published
and the copyright term has ended, users do not normally have unbridled access
to private collections of copyright works. Once again, commercial necessities take
precedence over the public interest.
Cultural heritage
Various measures including repatriations of looted artefacts, publicly funded

acquisitions of art, export restrictions on iconic works and conservation of treas-
ures reflect the public interest in preserving cultural property for historical, aes-
thetic or socio-economic reasons. Copyright may augment our cultural
patrimony by granting authors significant incentives for creativity. Once created,
various copyright exceptions such as fair dealing, compulsory licensing and the
public interest defence may facilitate public access to important cultural works.101
At a different level, moral rights complement national heritage laws by allowing
individuals to vindicate the public interest in cultural heritage preservation. For
instance, the right of integrity outlaws prejudicial changes to cultural treasures
while the right of access may be a useful tool for conserving copyright works in
another's possession. Similarly, the right of attribution identifies authors of
important cultural icons thereby facilitating informed and sympathetic conserva-
tion of these works. However, the right of repentance may be inconsistent with
cultural heritage preservation because it subordinates the public interest to the
self-interest of individual authors. The major difference between the personality
and cultural heritage bases of moral rights protection is that instead of advancing
the interests of authors, the cultural heritage argument is principally concerned
with enhancing the public interest. Of course, public institutions may police
national heritage violations but their activities may be crippled by budgetary con-
straints or inertia.
Discussions on moral rights and cultural heritage protection imply compre

hensive public access to important literary and artistic works. Public access t
101 A. Frangon, 'Authors' Rights Beyond Frontiers: A Comparison of Civil Law and Common Law
Conceptions' (1991) 149 RIDA 2, 4.

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national cultural patrimony is necessitated by the aesthetic and educational value

of the artefacts. True, access to some works must be restricted in the interest of
conservation, security and privacy. However, the exclusive property rights stem-
ming from copyright ownership coupled with the right to privacy conspire to
reduce meaningful public access to culturally significant works stored in private
residences. Although this problem is ameliorated by granting tax incentives to
collectors who allow public access to their collections,102 the access granted by
private owners may be limited and some wealthy collectors may ignore these
tax breaks. In any event, some private collectors reside in tax havens thereby ren-
dering the benefits of inheritance tax breaks remotely attractive. Anonymous auc-
tion sales compound the problem of public access to private collections by
making it nearly impossible to locate the location of important works. For
instance, despite offering useful research insights into their authors' life and artistic
techniques, both Maria Callas' private correspondence and Pablo Picasso's Nu au
collier were sold to anonymous collectors in 2002.103 These anonymous sales also
paralyse the value of moral rights as a measure for preserving our cultural heritage
because authors may not know the fate of their works once they have been spir-
ited away to their secret owners. Even where limited access is possible, fragmented
location of an author's principal works at various private residences impedes the
ability of researchers to study the works together.
The low test of originality in most jurisdictions104 sits uneasily with accepted
definitions of cultural heritage which focus on extraordinary and rare artefacts.105
A weak originality test also generates serious arguments about who should deter-
mine the cultural status of copyright works. The dimension of self-interest ensures
that even modestly skilled authors may inflate the cultural status of their creations.
The available evidence also suggests that judges do not have the requisite skills to
make aesthetic judgments106 while expert evidence is often tainted by the con-
straints of parochial training and adversarial litigation.107 In any event, it is unde-
mocratic to bestow the function of determining the cultural status of objects on
unelected individuals who may disregard avant-garde works.108 Arguably, public
surveys are the best tool for approximating the public interest in preserving our
cultural heritage'09 but they are expensive to commission and the public may
exhibit its philistinism by disregarding new works. The solution to this old chest-
nut is to use a partly subjective and partly objective test which accommodates the
best available evidence from authors, the public and experts. In the final analysis, a
low test of originality is an arbitrary line which is drawn to accommodate busi-
ness and aesthetic interests but it leaves copyright systems with no sieve to separate
culturally significant from ordinary works.
102 Eg Inheritance Tax Act 1984 (UK), s 31.

103 http://news.bbc.co.uk/1/hi/entertainment/arts/2064625.stm and http://news.bbc.co.uk/l/hi/enter
tainment/arts/2520071.stm.
104 Eg Ladbroke v William Hill [1964] 1 All ER 465; Hay v Sloan (1957) 2 DLR (2d) 397.
105 Eg UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export
and Transfer of Ownership of Cultural Property, November 14,1970, 823 UNTS, 234, 236.
106 George Hensher v Restawile Upholstery (Lancs) Ltd [1976] AC 64.
107 Eg Thomson v Christie Manson & Woods Ltd and others [2004] EWHC 1101 (QB).
108 D. Gamboni The Destruction of Art (London: Reaktion Books, 1997) 167.
109 Eg Tidy v Trustees of the Natural History Museum (1997) 39 IPR 501.

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Complete destruction of original works generally reduces the corpus of cul-

tural artefacts especially where the work concerned is not mass-produced but it
takes a controversial twist if authors destroy their own works. Given that a fin-
ished work may be culturally significant, allowing authors to destroy their fin-
ished work concentrates the power to determine the fate of cultural objects in
one self-interested individual. This issue reflects the difficulties existing at the
interface of the personality and cultural heritage justifications for moral rights
protection. While authors may discard their earlier personality by destroying their
work, cultural heritage preservation would disapprove destruction of existing
treasures irrespective of its source. These arguments apply with equal force to pre-
judicial alterations of copyright works by their authors. However, unfinished
works are in a different league because their very nature envisages failure or sub-
sequent change. Destruction also pits the cultural heritage and freedom of expres-
sion rationales of copyright protection against each other. For example, the
destruction of Saddam Hussein's statue in Baghdad was a stage-managed exercise
of freedom of expression but it depleted Iraq's cultural treasures. Similarly,
destruction of a dead author's unpublished works creates tensions between main-
taining culturally significant information and heirs' privacy interests. Arguably,
freedom of expression and privacy conflicts may be resolved in favour of cultural
heritage preservation because time may neutralise the work's political and privacy
connotations. Lastly, it must be noted that in exceptional circumstances, destruc-
tion of treasures may yield unintended positive outcomes.Very few events under-
line the serious dangers of religious extremism more than the state-sponsored
dynamiting of the Bamyan Buddhas in Afghanistan.
Generally, decisions to interfere with cultural landmarks are usually made after
extensive public consultation.Waivers strike at the heart of this democratic process
by granting authors the sole discretion to permit changes to culturally significant
works. Apart from being undemocratic, routine waivers may also harm cultural
works created by budding authors who usually lack the muscle to prevent unwar-
ranted changes to their works. Waivers relating to future copyright works raise
different considerations because society may not know the cultural value of the
work at the time the waiver is made. However, waivers relating to future works
expose culturally significant works to commercial vagaries once they have been
created. Nevertheless, blanket bans on waivers are inappropriate because they stifle
widespread appreciation of cultural works arising from sympathetic adaptations
of important works. That argument apart, creators of valuable works must have
the opportunity to maximise their financial interests through waivers and must
not be forced to contribute disproportionately to the public interest. Permissions
may offer the best solution to the conflicts between waivers and cultural heritage
preservation because they force copyright owners to consider the full ramifica-
tions of any proposed changes to important works before making an application
to the appropriate authorities. Although these permissions are used regularly
when modifications are proposed to the built heritage, unless there are strong
legislative provisions that combat abuse of moral rights, seeking permission to
change collaborative works is fraught with difficulties.
The end of the copyright term may leave some valuable cultural treasures dan-
gerously exposed in the hands of private collectors. Of course, owners of impor-

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tant works may be reluctant to implement changes that devalue their investments
but the absence of moral rights protection may tempt some copyright owners to
implement unwarranted changes to their works. Despite this gloomy picture,
copyright's limited duration may have some hidden benefits. During the subsis-
tence of copyright, the public and experts may form a rough consensus on the
cultural status of some copyright works. Works of insufficient merit are left to
the vagaries of the public domain while culturally significant works would ben-
efit from public heritage laws including export restrictions. The end of the copy-
right term therefore sifts banal works from cultural treasures. Another argument
in favour of a limited copyright term is that it frees the raw materials needed for
creating works of cultural importance. That possibility notwithstanding, public
access to the most outstanding treasures may be limited by various factors includ-
ing conservation, security and ownership of the works by private collectors.
Extending moral rights protection to copies of original works anticipates the
problems arising from loss or destruction of cultural treasures but it may over-
protect our cultural heritage and diminish transformative uses of copyright
works. Another vexing question is generated by the production of identical but
unauthorised copies of an original work. Apart from being potential instruments
of fraud, these fakes poison the wells of cultural authenticity and waste scarce con-
servation resources and museum space.110 Even if the public knows that a work is
faked, time may blur the distinctions between copies and originals thereby intro-
ducing high authentication costs."' Strictly speaking, the right against misattribu-
tion of authorship is not a moral right because it can be claimed by non-authors.112
Instead, it shares common features with a passing off claim because it is aimed at
preventing misappropriation of the goodwill in another's name. However,
viewed through the prism of cultural heritage preservation, the right against mis-
attribution of authorship minimises some of the negative consequences of fakes
on our cultural heritage by granting authors the right to deny authorship of the
work if fakes are attributed to them. Arguably, an unauthorised but aesthetically
superior copy of an original work may deserve copyright or moral rights protec-
tion because it develops the ideas in the original work. Additionally, outlawing
these copies fails to recognise the incremental nature of modern creativity.
It may be important to recognise the creativity of employed authors as a mea-
sure of social reward and historical accuracy but that generosity is not extended to
employed authors in the United Kingdom."113 Presumably, the UK treats
employed authors differently because copyright works are capable of numerous
adaptations and abusive exercises of moral rights by individual employees may
impede wholesale exploitation of cultural products. Additionally, employees are
generally mobile and it may be administratively inefficient for companies to
apportion the creation of finished products. Nevertheless, excluding works cre-
ated by employed authors from moral rights protection severs the links between
cultural works and their 'creators'. To prevent employers from abusing this loop-
110 J. H. Merryman,'Counterfeit Art' (1992) 1 InternationalJournal of Cultural Property 27.

111 Thomson v Christie Manson & Woods Ltd and others [2004] EWHC 1624 (QB).
112 Clark vAssociated Newspapers Ltd [1998] 1 All ER 959.
113 Eg UK CDPA 1988, s 79(3).

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hole, public heritage laws must be used to preserve outstanding works once their
cultural relevance has been ascertained by independent bodies.
Authenticity
Moral rights protect authors and copyright owners' pecuniary interests by safe-
guarding the authenticity of copyright works. The authenticity basis of moral
rights protection is largely similar to the cultural heritage argument in that it pro-
motes truth in artistic and literary discourse. The only difference between the two
justifications is that authenticity is a hybrid interest designed to preserve the eco-
nomic benefits of copyright transfers, the rights of consumers and the public
interest in maintaining accurate artistic records. Moral rights are especially rele-
vant to old works because their authentication becomes increasingly difficult with
time.114 Authenticity also matters because fakes may be used to defraud consumers
and may result in a wasteful allocation of scarce museum resources."5 Moral rights
promote authenticity in several ways. The right of attribution markets an author's
works by identifying their provenance and prevents misattribution of inferior
works to successful authors thereby reducing consumer search costs.16 Correct
attribution of copyright works may also substantially affect the price commanded
by copyright works.17 In 2002, Rubens' The Massacre of the Innocents was sold for
nearly ?50 million largely because it was attributed to the old master rather than
one of his followers.18 Similarly, in Thomson v Christie Manson & Woods and
Others,119 an attribution of rare French urns to a later artist rather than Enne-
mond-Alexandre Petitot significantly altered the value of the urns. Of course, in
both instances, the work remained the same but its selling qualities derived from
its association with a specific author. Similarly, the right of integrity preserves the
resale value of copyright works and minimises loss of future commissions or sales
by prohibiting unauthorised interferences with copyright works.120
Apart from diminishing economic returns to authors, fakes introduce signifi-
cant search costs into the art market, defraud consumers and may prevent buyers
from entering into repeat transactions if they doubt the authenticity of their pur-
chases.121 Outlawing unauthorised copies of copyright works is therefore neces-
sary especially where significant time has lapsed since the creation of the original
work. This consumer protection function of moral rights also assumes great
importance to buyers who cannot afford independent expert advice. However,
serious theoretical problems arise if forgers make better copies of original works
because in these circumstances it may well be argued that the better copy repre-
114 Thomson v Christie Manson & Woods and Others [2004] EWHC 1101 (QB).
115 Merryman, n 110 above.
116 Hansmann and Santilli, n 34 above, 130-131; D.Vaver,'Moral RightsYesterday, Today and Tomor-
row' (1999) 7 InternationalJournal of Law and Information Technology 270, 276.
117 J. C. Ginsburg,'The Right to Claim Authorship in U.S. Copyright and Trademarks Law' (2004) 41
Houston LR 263, 265.
118 See http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2002/07/11/nrubell.xml.
119 [2004] EWHC 1101 (QB).
120 J. Ginsburg,'Moral Rights in a Common Law System' [1990] EntLR 121,122.

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sents a new commodity deserving independent copyright and moral rights pro-
tection. However, given that authenticity is not confined to aesthetic merit,
buyers who purchase the better copy believing it to be an original work by
another author must be protected from this misrepresentation. Conversely, pro-
scribing similar copies of original works ignores the derivative nature of modern
creativity. For that reason, a French decision sanctioning reproduction of an artist's
signature without creating consumer confusion122 recognised the proper limits of
the authenticity argument. For authenticity purposes, if a copy of a work does not
cause consumer confusion, it must be immunised from copyright infringement
suits if future creativity is to be freed from economic shackles. However, this rea-
soning clashes with the cultural heritage rationale of moral rights protection
because with the passage of time these similar or identical copies may cause diffi-
culties when authenticating the original work.
Theoretically, waivers may be perceived as a statement of an author's wishes
regarding the consumption of her work. For instance, voluntary waivers may
indicate that authors view their work as being capable of significant changes and
various interpretations to meet the needs of different consumers over time. Where
that is the case, authenticity is not seriously affected if the buyer's attention is
drawn to the fact that alterations to a work are a result of properly obtained waiv-
ers. However, a different picture emerges if one prods beneath the surface of this
argument. The usual position is that apart from cases involving singularly original
works created by well-known authors, decisions on commercial exploitation of
copyright works are usually reserved for copyright owners. At a different level, if
authenticity is a consumer protection device then undisclosed waivers subtract
from that interest because consumers may unwittingly buy altered works without
knowing that authors and copyright owners agreed on serious changes to the ori-
ginal work. Moreover, consumers bent on acquiring significant works would
incur significant search costs when establishing the authenticity of the work con-
cerned. At another level, whether or not authors object to prejudicial adaptations
arising from authorised waivers may be irrelevant if consumers know that they
are buying altered works. Nevertheless, prejudicial alterations may constitute a
serious assault on an author's personality and imperil our cultural heritage. Argu-
ably, absolute prohibitions on waivers cure this defect but they may diminish the
resale value of the work if it needs subsequent adaptations. All these problems are
ameliorated by the likelihood that authors who have confidence in their creative
powers may sell their works for a higher price if the public knows that they do not
compromise their principles.123 However, this argument presupposes that consu-
mers are acutely familiar with the convictions of individual authors.Where copy-
right owners improperly interpret waivers, authors whose honour or reputation is
harmed by authorised alterations must be given the opportunity to enforce their
moral rights.124 This solution provides a proper balance between the commercial
interests of authors and copyright owners.
122 A. Lucas and P. Kamina,'France' in P. E. Geller and M. B. Nimmer (eds), International Copyright
Law and Practice (NewYork: Matthew Bender, 2003) 98.
123 Hansmann and Santilli, n 34 above, 128.
124 Belgian Copyright Act, Art 1(2).

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Altered or destroyed works add further wrinkles to the problems surrounding

the authenticity basis of moral rights protection. Arguably, consumers who buy
copyright works knowing that they were altered cannot complain about the
work's authenticity125 but if authenticity extends to artistic truth then
unauthorised alterations misrepresent an author's views. Additionally, unacknow-
ledged and prejudicial transformations of copyright works may harm an author's
financial interests if the public erroneously believe that they reflect poor aesthetic
judgment on the author's part.126 This fear prompted NewYork to prohibit exhi-
bitions of altered works which harm authors' reputations.127 Complete destruc-
tion raises different considerations because destroyed works cease to exist and do
not mislead consumers into buying the work. Nevertheless, consumers and
authors alike may lack other examples which demonstrate the financial attractive-
ness of a particular author's expressions.128 In jurisdictions where the droit de suite is
recognised, authors of destroyed works are also deprived of resale royalties.129
Other problems also arise if the author himself makes serious alterations to his
earlier work and fails to inform the public about the changes. If the misrepresen-
tation is not exposed, the public may buy an adulterated work thereby harming
the consumer protection function of moral rights protection. This issue exposes
the dangers of allowing a self-interested individual to vindicate the public interest
in maintaining authentic cultural products. All these arguments must be recon-
ciled with the possibility that copyright owners may be reluctant to reduce the
commercial value of their work through unwarranted alterations. Additionally,
for the more expensive artistic works, prudent consumers may rely on expert evi-
dence to reduce their exposure to unscrupulous transactions but the involvement
of experts may not provide a cast iron guarantee that the work is unaltered.130
Given that the authenticity argument is chiefly concerned with preserving the
selling qualities of copyright works, originality does not play a pivotal role in
assessing the need for moral rights protection. Various esoteric, similar or identical
works can co-exist in a marketplace without causing consumer confusion. As
long as consumers are not misled into believing that the expressions they are buy-
ing originate from another author, the authenticity argument is not affected
because it concentrates on the integrity and provenance of the work concerned
rather than its aesthetic merit. What matters here is whether a particular work is
highly recognisable as a trade symbol. Difficulties may arise however, in relation
to certain parodies or close imitations of copyright works. In those cases, it may be
easier for consumers to buy one work thinking that it was another. This problem
is compounded by the possibility that less original works may be easy to fake
because their creation may not involve any deployment of vast reserves of talent.
On the other hand, restricting the incidence of these derivative works would pre-
vent competition in the marketplace for ideas and negate the free speech values of
125 Leger v Reunion des Theatres Lyriques Nationaux [1955] 6 RIDA 146.
126 E. Marcus,'Moral Right of the Artist in Germany' (1980) 25 ASCAP 93,105.
127 NewYork Art and Cultural Affairs Law, s 14.03.
25 IIC 177.
129 Merryman, n 49 above, 1035.
430 C The Modem Law Review Limited 2005

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copyright law. For that reason, anchoring the right of integrity in harm to honour
or reputation protects later entrants into the market and the resulting competition
lowers prices thereby benefiting consumers.
Denying moral rights protection to works created by employed authors is lar-
gely uncontroversial if moral rights are perceived as instruments for preserving
the economic interests of consumers and owners of cultural products. Since com-
panies may supervise the creation of copyright works and advertise their benefits,
they must therefore own and control uses made of the resulting works. This argu-
ment augurs well with some notions of originality which focus on the source of
the work and it safeguards the economic incentives granted to those who invest in
products of the mind. Moreover, allowing salaried authors to veto adaptations of
copyright works would impose transactions costs on buyers who would need to
research whether the employed authors or their heirs can consent to changes to
the work thereby lowering the price commanded by these works. However, this
argument sacrifices other moral rights values on the altar of economic exploita-
tion of copyright works.
Given that moral rights are partly designed to protect consumers from buying
altered works, potential buyers may be left exposed after the expiry of the copy-
right term. Of course, copyright duration must be limited if uninhibited access to
cultural information is to be maintained. In any event, by the time copyright
expires, most ordinary works would have exceeded their shelf life or may be well
known or catalogued to warrant any additional moral rights protection. How-
ever, there can be renewed interest in an artist's work after the expiry of copyright.
The absence of moral rights protection at this stage may create a fertile environ-
ment for faking the original work. This problem may be accentuated by the
absence of heirs who may easily vouch for the authenticity of the work. Addition-
ally, expert opinion on the authenticity of the work may be divided or unafford-
able. Interpreted within that context, perpetual moral rights are justifiable because
they provide extensive guarantees for the authenticity of copyright works.131
However, this argument presupposes that moral rights are primarily predicated
on consumer protection and preserving the economic value of copyright works.
Additionally, determining who should control copyright works after the expiry
of the copyright term is fraught with difficulties. Arguably, it may be appropriate
for the state and other public interest organisations to police adaptations of public
domain copyright works because they may reconcile the consumer protection
function of moral rights with other public interests including preserving cultural
heritage and respecting authors' personality.
Arguably, passing off and trademark laws adequately protect the interests pro-
moted by the authenticity justification for moral rights protection thereby ren-
dering this justification otiose. In that connection, it may be posited that an
objective assessment of harm to honour or reputation in right of integrity cases
is largely similar to the rationales for trade mark protection because it is designed
to prevent genuine interferences with the selling or outstanding qualities of copy-
right works. Similarly, the right of paternity associates successful artistic works
131 E Piriou, 'The Ability of Moral Rights to Stand the Test of the Relations between Creators and
Legal Entities' (2001) 190 RIDA 244.

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with their creators. Trade marks law is usually used to vindicate copyright interests
especially where artistic works constituting famous brands are infringed.132 A
mirror image of this cumulative use of intellectual property rights involves using
copyright law to bolster a weak trade mark case.133 Nevertheless, moral rights pro-
vide a cheaper alternative to trade mark and passing off protection because they do
not depend on proof of goodwill for their application. Moral rights also have a
distinct advantage over registered trade marks because they inhere in authors irre-
spective of compliance with statutory formalities.134 By applying to acknowl-
edged and unacknowledged alterations alike, moral rights also go further than
trademark or passing off protection which are usually confined to consumer con-
fusion or misrepresentation harming another's economic interests.135 Moral rights
also assume great significance if a court refuses to use trade mark laws in copyright
cases. 36 Defamation laws may also be used to prevent harm to an author's reputa-
tion caused by the publication of altered or fake copies of a copyright work.137
However, apart from jurisdictions such as Qu6bec which allow heirs to sue for
defamation of their family name, unlike moral rights, the reputational interests
protected by defamation do not extend beyond an author's natural life.138 Defa-
mation laws may also be an inadequate remedy where an altered work is not pub-
lished or where its author has little reputational interests worth protecting.
CONCLUSION
Apart from theoretical differences among copyright systems,

the problems associated with moral rights is generated by confl
right exploitation and its relationship with the rights of autho
trouble with moral rights is that no single theory can explain
moral rights protection convincingly. What appears to be a so
one context may appear demonstrably fallacious in another. Ar
tion is not new because despite their shortcomings the justifica
tively present a strong case for moral rights protection. How
justifications are aggregated, significant inconsistencies between
tice remain. Modest reforms must therefore be proposed if the
rights protection are to be justifiable. This section briefly tackles s
pervasive issues encountered in earlier parts of the article.
Arguably, what is needed is a sustained reappraisal of the pur
matter of copyright protection. Currently, copyright overprote
teric works and the law is geared towards preventing misappropriat
valuable information.139 As a result, copyright protects subject ma
132 Cie Generale des etablissements Michelin v CAW [1997] 2 FC 306 (Canada).
133 Exxon Corp v Exxon Insurance Consultants International [1981] 3 All ER 241
134 Cf the situation in the UK, where assertion is required by CDPA 1988, s 78
135 Alan Clark vAssociated Newspapers Ltd [1998] 1 All ER 959.
136 Dastar Corporation v Twentieth Century Fox Film Corporation 123 S Ct 2041.
137 Eg Archbold v Sweet, n 40 above.
138 Cf Civil Code of Quebec Articles 35(2) and 625(3); Fondation Le Corbusier v
manoir Le Corbusier [1991] RJQ 2864 (Que Sup Ct) 2871-2873.
139 D. Vaver,'Intellectual Property: The State of the Art' (2000) 116 LQR 621.
432 ? The Modem Law Review Limited 2005

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removed from the justifications of moral rights protection. This old problem may
be partly resolved if various jurisdictions harmonise their laws on unfair competi-
tion and misappropriation. This solution may free copyright doctrines to protect
works that are coterminous with moral rights ideals. The chief drawback of a gen-
eral law of unfair competition is that its boundaries cannot be measured with an
acceptable degree of precision. Additionally, a general law of unfair competition
teems with uncertainties140 which may unnecessarily impede competition141 and
proscribe legitimate uses of copyright works. Moreover, common law jurisdictions
have a variety of economic torts which encompass unfair competition.142
Given international disagreement over the need for and the scope of a general
law of unfair competition, it may be necessary to harmonise the test of originality
upwards. A useful starting point would be to adopt the 'own intellectual creation'
standard in various European Union directives.143 This would protect works that
are coterminous with moral rights ideals and leave protection of essentially com-
mercial works to other remedies including passing off. If the test of originality is
harmonised and strengthened, some of the difficulties surrounding the cultural
heritage and personality arguments will be diminished significantly because copy-
right would protect works of outstanding originality. However, a high test of ori-
ginality may have negligible effects on the authenticity argument because as long as
the work does not cause consumer confusion, its originality is irrelevant. Similarly,
a higher test of originality may not be suitable for the free speech justification for
moral rights protection because it may discriminate against inferior speakers.
It must be noted that except where the droit divulgation is relied on, inaccessibil-
ity of copyright works is not strictly a moral rights problem. It therefore means
that multi-pronged solutions must be adopted to enhance public access to copy-
right works. Developing comprehensive export restriction laws may promote
access to important works because the work remains in a particular jurisdiction
to be enjoyed by inhabitants of that jurisdiction. Where a work is of significant
research value, anonymous auction sales must be dispensed with. This approach
would at least make users aware of the work's location if they are minded to pur-
sue some research on the work. However, identifying auction buyers may
infringe their privacy and poses serious security problems if art thieves know that
important works are stored in inadequately secured private residences. Serious
incentives must also be given to owners of treasures who allow research or public
access to the treasures in their possession. Lastly, where the droit divulgation is relied
on in a way which limits public access to vital works, the solution is to balance
privacy and other public interests by granting compulsory licences to users and
sanctioning unauthorised uses through a purposive interpretation of fair dealing
and the public interest defences.
The old chestnut of waivers may be cracked by following the Belgian position
which allows waivers but permits authors to object to adaptations which harm
140 Moorgate Tobacco Co v Phillip Morris [1985] RPC 219.

141 Hodgkinson & Corby v Ward's Mobility Services [1995] FSR 169.
142 G. Dworkin,'Unfair Competition: is it time for European harmonization' in D.Vaver and L Ben-
tly (eds), Intellectual Property in the New Millennium (Cambridge: CUP, 2004).
143 Eg Software Directive Art 1(3), Duration Directive Art 6 and Database Directive Art 3(1).

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their honour or reputation. This approach safeguards the economic interests of

copyright owners in that they can still engage in sympathetic adaptations of copy-
right works. It also safeguards the economic interests of authors in that they can
derive financial benefits from such waivers while preventing harm to their hon-
our or reputation. Other interests such as personality and freedom of expression
are promoted by adaptations which disseminate the interests concerned widely
and the prohibition of prejudicial treatment of the original expressions. Waivers
concerning works which are not mass-produced must oblige copyright owners to
disclose any adaptations to consumers if the consumer protection function of the
authenticity argument is to be observed.
Destruction by users, owners and the state must be minimised if the various
benefits of moral rights are to be maintained. Even if these forms of destruction
may constitute freedom of expression, they may exceed the legitimate limits of
self-expression. Jurisdictions without provisions on destruction of copyright
works must therefore actively seek to enact these provisions. Where a copyright
work interferes unduly with an owner's property rights or users' freedoms it may
be desirable to allow authors to catalogue the work if it cannot be removed before
it is destroyed or to remove the work if that is still possible. Although these solu-
tions resolve the conflicts between authors and owners largely in favour of own-
ers, they provide a means of recording the existence of the work.
On balance, the limited duration of moral rights should prevail because it accom-
modates other vital public interests such as promoting competition in the cultural
industry, access to copyright works and transformative uses of existing ideas. In any
event, public appetite for some copyright works wanes well before the end of the
copyright term. If need be, vulnerable and significant works may be protected by
public heritage laws including export restrictions and planning permissions. Where
heirs permit prejudicial changes to copyright works, their economic rights must be
subordinated to the need to maintain cultural authenticity. Where heirs abuse their
right of disclosure during the copyright term, compulsory licensing must be used to
access the secret information if it is of vital public importance.
A purposive interpretation of copyright exceptions may minimise some moral
rights abuses. For instance, fair dealing and the idea/expression dichotomy must
accommodate transformative uses of copyright works while the public interest
defence must be liberally used to access information fenced off by an exercise of
the right of publication. Some moral rights abuses may be resolved by a purposive
interpretation of compulsory licensing provisions. Of course, courts must pay ser-
ious attention to privacy and access to information when adjudicating cases impli-
cating copyright exceptions. However, the application of copyright exceptions to
the right to integrity may be partly obviated by a purposive interpretation of the
right of integrity which may separate genuine interferences with authors' moral
rights from other legitimate uses of copyright works.
In conclusion, it must be noted that the value attached to the exploitation of
products of the mind will generate new problems for moral rights justifications.
Given the rapid pace of technological advances and the resulting challenges for
copyright exploitation, solid principles must be in place if moral rights are to
achieve their various purposes. Currently, moral rights are plagued by serious inter-
nal inconsistencies which may be made more glaring by technological advances.
434 c The Modern Law Review Limited 2005

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The Trouble With Moral Rights

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The Trouble With Moral Rights

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The Trouble with Moral Rights

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The idea that Anglo-American copyright jurisdictions sacrific

* University of Aberdeen. I am grateful to David Vaver, Robin Evans-Jones

1 Eg R. Sarraute,'Current Theory on the Moral Right of Authors and Ar

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Gradual international recognition of moral rights as instruments for preserving

412 0 The Modem Law Review Limited 2005

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? The Modem Law Review Limited 2005 413

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414 0 The Modem Law Review Limited 2005

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sonality rights, privatises large quanta of information, proscribes transformative

? The Modern Law Review Limited 2005 415

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416 t The Modem Law Review Limited 2005

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Destruction of artefacts may be wilful, accidental, incremental or be a conse-

48 D. Gamboni, The Destruction ofArt (London: Reaktion Books, 1997).

? The Modem Law Review Limited 2005 417

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One of the lowest common denominators of personality interests is that they

418 C The Modern Law Review Limited 2005

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63 Eg Widmaier v SPADEM and Others [1993] ECC 38.

? The Modern Law Review Limited 2005 419

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author's copyright to the vital importance of disseminating news to the public.

75 Pound, n 16 above, 445.

420 ? The Modem Law Review Limited 2005

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right of disclosure are exacerbated by courts' reluctance to condone non-transfor-

82 Rv]ames Lorimer & Co Ltd (1984) 1 FC 1065.

? The Modern Law Review Limited 2005 421

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89 J. L. Sax, n 55 above, 17.

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Jurisdictions which exclude moral rights protection from works created by

96 Eg USA Copyright Act, s 101.

? The Modern Law Review Limited 2005 423

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Various measures including repatriations of looted artefacts, publicly funded

Discussions on moral rights and cultural heritage protection imply compre

424 0 The Modem Law Review Limited 2005

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national cultural patrimony is necessitated by the aesthetic and educational value

102 Eg Inheritance Tax Act 1984 (UK), s 31.

? The Modem Law Review Limited 2005 425

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Complete destruction of original works generally reduces the corpus of cul-

426 ? The Modern Law Review Limited 2005

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110 J. H. Merryman,'Counterfeit Art' (1992) 1 InternationalJournal of Cultural Property 27.

? The Modern Law Review Limited 2005 427

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428 ? The Modern Law Review Limited 2005

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? The Modem Law Review Limited 2005 429

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