Introduction
An author/artist is entitled to economic and moral rights as a result of copyright, which refers to artistic repertoire including books, films, paintings, technology-based work like electronic databases, and music. Economic rights stem from sale of copyrighted material while moral rights stem from the authorship of a piece of created work. Economic rights were recognized prior to the moral rights while moral rights started to gain recognition at the start of the nineteenth century (Sterling 280). Unlike economic rights that can be traded or sold, moral rights are inalienable, but can be waived. This paper aims at giving insight into the circumstances that may make an author to waive his/her rights, and whether there is any loss involved.
Copyright and copyright laws
The copyright law was endorsed in most of the European countries with the intention of regulating and controlling the output of printers, and this came alongside the invention and establishment of printing during the 15th and 16th centuries. Regulation and control of copyright material protects the authors from dissent and criticism, which may tarnish their good reputation. The harmonizing effects of the Berne Convention and other international instruments that have recently emerged are inevitable but, two main distinct conceptualizations defining the functions of copyrights are evident in the world’s legal systems (Davies 264-5; Sherman and Alain 159-202). The economic role of copyright is emphasized either in the Anglo-American, or the Common Law tradition. The copyright law protects the copyright material from unauthorized acts of protection enabling the art owners to market their market themselves with a product based on the material. Alternatively, they grant others the right to market their products through outright transfer, or licence. Copyright fosters financial returns, which would otherwise not be possible if there was no copyright thus, copyright can be seen as a response to market failure. According to the civil law and continental Europe, copyright law is considered as a means through which an author’s personality and interest in his/her work are protected, going beyond economic rights to what is termed as ‘moral rights’ (MacQueen, Charlotte and Graeme 33-50).
Moral rights
Moral rights ensure that the reputation and integrity of authors’ and artists’ work are protected under the copyright law. They originated in Europe and aim at recognizing the efforts of a creator/artist/author. Copyrights are intended to protect the economic rights of copyright holders. Moral rights subsist regardless of the fact that an author/artist may not own the copyright material. The two main moral rights are those pertaining to paternity and integrity (CDPA s. 77 & s. 80). In accordance with section 77 of the CDPA, an author/director of any literal, musical, artistic or dramatic copyright is entitled to the right of being identified as the author/director of the piece of work. The right to integrity protects a given piece of art work from being modified/altered, mutilated, or distorted.
Moral rights are infringed through plagiarism, or not attributing a work to its rightful owner, and instead, attributing it to someone else. Infringement is also evident when a falsely attributed work is produced; work is treated in a derogatory fashion; and having commercial deals with a derogatory work. Since moral rights are deemed personal to artists, they are not transferrable except when the artist dies or by testament (s. 103). According to Article 6bis of the Berne convention (Berne Convention):
Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation.
Moral rights also entail the right to privacy. In such a case, the author/artist has the right to reveal their identity with regard to a certain art work, or not. This mainly prevails in a situation where more than one artist prevails. Each artist/author has the right to disclosure/withdrawal as pertains to the moral rights.
Moral rights are valid throughout an artist’s/author’s lifetime, and 70 years after the artist’s/author’s death. Moral rights are very powerful because, even though authors sell all their copyrights to a piece, they retain their moral rights as they are deemed independent of ownership. However, in the event that an author/director signs away his/her moral rights, then he/she no longer has the right of authorship over his/her work. Under such circumstances, infringement of moral rights occurs, and the author/artist can do nothing about it. This subsequently affects an author’s reputation because, once the person with the right to infringe on the authors work makes changes to the work, it might not be positively receipted by the public. Subsequently, the author’s subsequent works will not be positively receipted (Arts Law Centre of Australia).
Moral Rights across Cultures
The perception and attention given to moral rights is different across continents. According to the American Law as indicated by Rosenblatt, moral rights are protected via judicial interpretation of “various privacy, copyright, trademark, and defamation statues, and via 17 U.S.C. §106A”, which is the Visual Artists Rights Act of 1990 (VARA). The VARA is the primary mechanism through which moral rights are protected in the US. This act is exclusively applicable to visual art of recognizable stature. Unfortunately, the US does not pay attention to moral rights of an author and as indicated by Arnold, “Caslon.com”, vociferous critics dismissed then as “fictitious, made up by authors who believe that they are somewhat more righteous than others and therefore, they deserve a higher level of rights”. The ordinary copyright law protects moral rights as seen in Europe and the other countries. In France, the existence of moral rights is perpetual. They are an integral element of the “intellectual property legislation and cultural protection schemes in Europe” (Arnold). In Australia, moral rights prevail for various artists including literal work.
Waiving Moral Rights
It is very important to understand the actual meaning behind signing away of moral rights, while taking into consideration the fact that moral rights are independent of ownership and cannot be assigned to another person. In any given copyright material, moral rights are very different from economic rights in various ways as mentioned at the beginning of this paper. Therefore, if an artist assigns his/her copyright rights to a third party, the moral rights still prevail. Whereas it is easy to increase the economic returns of a copyright, the same does not hold true for moral rights. This is because, once the reputation and honour of an author have been destroyed, it is difficult to restore them (Costigan and Michael 2).
Moral rights are unique and in emphasis of their inalienable characteristic, the personality and character of an author/artist as seen from his/her work cannot be transferred. The possession of moral rights from the beginning of an author’s career is very promising because, the work is not distorted and the reputation of a writer is not tainted. Once an author is positively receipted by the public due to his/her works, his work gains more recognition and easily becomes one of the most successful artists within the concerned territory.
It is only in writing that an artist consents to actions by another party. This happens when an artist/author gives written consent to this party permitting it to infringe on some, or all of an artist’s/author’s moral rights. Waiving of moral rights is usually prevalent when signing a contract because, artists are faced with a dilemma; either to sign away their moral rights, or no contract (Sallis and Crawford Legal 1). In most cases, artists sign away their contracts to their moral rights to their employers or publishers, due to the economic interest involved. However, it is important to note that regardless of the fact that the author signs away his/her moral rights to maintain his/her economic position, the loss associated with moral rights is great.
It is not recommendable for an author/artist to sign away his/her moral rights because; creation of a piece of work goes beyond receiving economic reward, more so because waiving away of one’s moral rights is not associated with an increment at an economic level. As an artist, one possesses a unique ability that is not possessed by many. Waiving away one’s moral rights places an author’s personal and reputational worth at jeopardy. Moral rights may differ across cultures but they generally entail an author’s right to accept or refuse credit for his/her work, to decide on the manner in which his/her work would be displayed, to obtain resale royalties, to prevent infringement on work without permission and to control who owns the work (Article 6bis, Berne Convention). Civil law countries prohibit waiving away of moral rights because they are considered pious and of greater worth than the economic values obtained from the copyright (Gagrani). Common law countries on the other hand allow waiving of these rights.
The most important thing for an artist is the satisfaction that he/she derives from his/her work. Artists produce their works based on one, or more elements that they possess, or want to discover. Therefore, their artistic works in most cases is a reflection of themselves thus, are very personal to the artists (Waiver of Moral Rights in Visual Artworks). The moral rights were developed to ensure that artists maintained a personal attachment to their works, to avoid infringement of whatever kind. Moral rights are perpetual in most countries, but may be signed away upon the insistence of a publisher. While this may not affect the economic reward that an author receives, the impact of such an act may damage the credibility in the eyes of the public. The signing away of moral rights is a great challenge to budding authors because of the extensive commercial exploitation they encounter right from the beginning of their careers. At such a time when the authors are only new in their career and economic returns are their goal, they are forced to give up their moral rights to avoid breaking commercial agreements with their publishers. As earlier mentioned, employees will also give their employers their moral rights to avoid losing their jobs.
Despite the fact that authors seek economic recourse, no amount of economic return can be compared with the loss of moral rights. It is important to take note of the time of effort taken to produce the work and for what, only for it to be tampered with anyhow by another party. The integrity of an author’s work and use of his/her name, are no longer accorded the respect and credit they deserve. When an author comes up with some literal work, there is some special meaning and connection between that work and the author. Therefore, for it to be mutilated and distorted by another person is very disappointing and disheartening. Most of the artists continue to engage in production of artist works even after waiving their moral rights due to the economic gains associated with production of the work.
When an author signs away their moral rights, this means that the effort they put in, in their work is useless. They fail to be recognized as the actual authors because their identity can be removed from their work and given to somebody else. In addition, a publisher is at liberty to make changes in the artist’s work. For example, the publisher can remove a part/chapter that he/she does not like despite the fact that it may be very imperative to the plot. The publisher can also change the mood/attitude derived from reading an article and in such a case, the author/artist may be considered to be a hacker (Copyright Agency Limited).
In the event that a revert clause exists in an agreement during the waiver of moral rights, then the validity of such a waiver is questionable as in the case of Frisby v BBC [1967] Ch 932 (Para 21.4; 21.7). ‘Revert to’ means that that the artist/writer has not waived his/her rights in any way and is free to get back his/her rights depending on the duration stipulated in the agreement. According to the case Frisby v BBC [1967] Ch 932, the writer merely authorized the publisher to perform a certain kind of work, after which the rights would be reverted to the writer (MacQueen, Charlotte and Graeme).
When an artist/author signs away his/her moral rights, the economic rights may still remain but, the loss of moral rights is far much greater because it destroys the artist’s credibility. Creating artistic works comes in handy with inventing ideas or images, and a lot of hard work. If there were some way out, authors and other artists should never waive their moral rights (Australian Copyright Council).
Conclusion
It is very important that artists/authors are very careful when comes to signing contracts pertaining to their works. Signing away one’s moral rights as an author does not mean that they will receive a greater amount of money for doing so, thus there is no reason why authors should sign their moral rights away. Based on the understanding of moral rights, it is inevitably true that if authors were to sign away their moral rights at the insistence of publishers despite economic gains, they encounter a great loss of their artistic work. When an author signs away his/her moral rights, this means that he/she allows infringement on his/her work which is prejudicial to an author’s honour and reputation. Despite the fact that there are instances when waiving of an author’s rights is inevitable like in the case of employment or under contract, authors and artists should be mindful of waiving their moral rights.
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