Economic rights under copyright law are generally better understood than moral rights. Moral rights vary in countries around the world. They are very strong in European countries, and much narrower in the United States. This article explores the importance of moral rights in Canadian copyright law, in comparison to international and U.S. law.
Beyond Economic Rights
One of the better known copyright lawsuits in Canada surrounds the Michael Snow sculpture of geese attached to the ceiling of the downtown Toronto Eaton Centre. In this case, the Eaton Centre tied red ribbons around the necks of the 60 geese in Flight Stop as a Christmas decoration. The artist, Michael Snow, was not aware of this alteration to this work, nor did he consent to it. Snow went to court and won.
Although the Snow case was a copyright infringement, it was, to be precise, an infringement of a specific kind of copyright protection known as moral rights. Moral rights are distinct from the copyright or economic rights in a copyright-protected work. Both international and domestic copyright laws provide for moral rights.
Whereas the purpose of economic rights is to provide some money — payment for rights in copyright — to the author/copyright owner, the purpose of moral rights is to protect the personality or reputation of the author (and not necessarily the owner) of a copyright-protected work.
You may like our article 8 Facts About Canadian Copyright Law.
Moral Rights Under the Berne Convention
Moral rights stem from the leading international copyright treaty, the Berne Convention. Article 6bis of Berne states:
(1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutiliation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation.
The 176 member states, including Canada and the United States, must meet the minimum standards set out in Berne. Thus, each member country must provide for moral rights of paternity and integrity. Of course, countries are free to go beyond these minimums and provide further rights, such as the right of association or to withdraw permission to use a work.
Note that moral rights are separate from economic rights, and even authors who have assigned their economic rights may have moral rights. In some countries, moral rights may be waived (e.g., Canada), whereas in other countries (e.g., France) authors may not waive their moral rights and may always exercise them.
Also, the duration of moral rights varies from country to country, and ranges from expiring on the death of the author, to 50 years after their death (e.g., Canada), to perpetual existence (France).
Moral Rights in Canadian Copyright Law
In the Canadian Copyright Act, there are three categories of moral rights:
- Right of paternity
- Right of integrity
- Right of association
Right of Paternity
This right refers to the author’s right to have their name on a work, to use a pseudonym, and to remain anonymous. Generally, an author has this right whenever they have economic rights in a work, and this right applies in relation to uses covered by the economic rights. For example, an author has the right to have their name of the cover of their book.
Right of Integrity
The right of integrity is the right of the author to object to any changes of their work that may harm their reputation as an author. This harm would be a question of fact that would have to be determined in court through the testimony of witnesses. For example, putting a moustache on the Mona Lisa (if the Mona Lisa were still protected by copyright) would likely be a violation of Da Vinci’s moral rights.
Closer to home, manipulating a scanned photograph may also be a violation of moral rights if prejudicial to the honour or reputation of the author of the photograph. Mere editing of an article, however, would likely not be an infringement of the right of integrity.
Snow sued the Eaton Centre for infringement of his right of integrity. The court said,
The plaintiff is adamant in his belief that his naturalistic composition has been made to look ridiculous by the addition of ribbons and suggests it is not unlike dangling earrings from the Venus de Milo. While the matter is not undisputed, the plaintiff’s opinion is shared by a number of other well-respected artists and people knowledgeable in his field.
The court held that the attachment of the ribbons to the sculpture was prejudicial to the artist’s honour or reputation and ordered that the ribbons be removed.
Right of Association
The right of association is not required in all Berne member countries; however, Canada does include it in its copyright statute. Under this right, an author has the right to prevent anyone else from using their work “in association with a product, service, cause or institution.”
The use must be prejudicial to the honour or reputation of the author — a question of fact that can be determined through the testimony of witnesses. An example may be an art exhibit sponsored by a tobacco company where the artist’s reputation rides on the fact that they are a no-smoking advocate.
You may be interested in our article The Balance in Canadian Copyright Law.
Moral Rights in the United States
The moral rights set out in Berne are intended to apply to all types of copyright-protected works. However, when joining Berne in 1989, the U.S. took a narrower interpretation of the requirements (and in some circles, a controversial one as to whether the U.S. is in fact complying with Berne).
In the U.S., moral rights are arguably protected under various federal and state laws, including explicit protection (through an amendment in the U.S. Copyright Act by the Visual Artists Rights Act [VARA] of 1990).
In her book The Soul of Creativity, Professor Roberta Rosenthal Kwall states, “the United States is out of step with global norms by not recognizing more substantial authors’ rights.”
You may be interested our article Moral Rights in U.S. Copyright Law.
Unlike Berne, VARA protects only one group of authors — visual artists, or more accurately, those who create “works of visual art.” These works include:
- Photographs existing in a single copy or a limited edition of 200 signed and numbered copies or fewer
Posters, maps, globes, motion pictures, electronic publications, and applied art are explicitly excluded from VARA.
VARA gives visual artists the right to claim authorship in their works, and to prevent the use of their names in association with their works. In addition, artists are granted the right to prevent the intentional distortion, mutilation or other objectionable modification of their works. Artists who qualify for federal moral rights protection can also prevent any destruction of certain works.
Some states, such as New York and California, also have moral rights protection for visual artists.
Under VARA, moral rights are not transferable by licence or assignment, but are waivable (in writing). The rights end with the life of the author (unlike economic rights, which endure for 50 years after the death of the author).
See our article Canadian and U.S. Copyright Law.
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