By Kevin Smith

I have a conflicted relationship with the idea of moral rights in copyrighted works. Because I saw my work as a scholarly communications librarian as focused on helping academic authors understand their rights and use them to further their own goals and the goals of scholarship writ large, I have often been sensitive to the lack of a real attribution right in U.S. law. I even wrote an article in 2010, in which I suggested such a right as a potential improvement of our law. Nevertheless, the difficulties associated with incorporating moral rights into U.S. copyright are substantial, so this topic has remained unresolved in my own

Late last month, the Copyright Office forced my hand, as it were, by publishing a Notice of Inquiry (NoI) that requests comments on the possibility of amending U.S. copyright law to include the moral rights of integrity and attribution. To be more accurate, they have initiated a review of the current state of protections for those rights — all signers of the Berne Convention agree to protect these moral rights, as well as the economic rights that are the core of U.S. law — and to consider if additional protections should be enacted. I recommend reading the Notice of Inquiry because it provides a clear overview of what moral rights are, what Berne requires, and how the U.S. has traditionally viewed our own response to those obligations. The ten questions posed as the specific subjects of the NoI do an excellent job of focusing the issues.

Moral rights, of course, refer to the “non-economic” rights over creative products that are afforded to authors and other creators in many countries of the world. Traditionally, these are a right of attribution and a right of “integrity,” meaning the right not to have a work distorted in a way that damages the reputation of the creator. These rights are considered personal to creators in a way the economic rights are not; some countries do not permit them to be transferred to others, for example. Most significantly, the Berne Convention, which the U.S. joined in 1988, requires member states to provide protection over moral rights. The U.S. determined, at the time it joined Berne, that our existing laws were sufficient to protect these rights, and no additional legislation was introduced, with one exception. Now the Copyright Office wants to review that situation.

On what basis has the U.S. argued that moral rights are already adequately protected under our current law? First, we have asserted that the Lanham Act, which provides for trademark protection and prohibits “false designation of origin,” provides some protection against misattribution. This claim was tested in a 2002 Supreme Court decision in the case of Dastar Corp. v. Twentieth-Century Fox Film Corp, which held, at least, that the Lanham Act does not prevent the unattributed copying and use of a work that is no longer protected by copyright. The late Justice Scalia was clear in his opinion for the Court, that trademark law cannot be used to “create a species of mutant copyright law that limits the public’s “federal right to ‘copy and use’ expired copyrights.” But whether false designation of origin could be used to enforce attribution for a work still in copyright remains an open and debatable question.

The one exception to the U.S. refusal to enact specific moral rights into copyright is the “Visual Artists Rights Act,” enacted in 1990 to give attribution and integrity rights to a certain group of visual artists. VARA is narrow in its application and subject to a number of exceptions that have been the cause of a lot of disputes, so it is hard to argue that it, by itself, provides sufficient protection for moral rights. Indeed, an academic author might well wonder why her colleague who teaches painting or photography is entitled to protection (possibly) that her own scholarly works do not get.

A few additional ways to ensure attribution and integrity that are often mentioned are, first, the right that is included in U.S. copyright law over derivative works, which presumably provides some opportunity to protect the integrity of a work, and, second, the ability of copyright holders to use licensing (i.e. contract law) to require attribution and preserve the integrity of a work. This latter point is an important acknowledgement of the role that Creative Commons licenses have, especially for academics and artists; those licenses are often the best mechanism creators have to protect their moral rights, which is why CC-BY is so vital for scholarship (this point is raised in the Notice of Inquiry, especially in question 7).

Recourse to the right over derivatives as a way to protect integrity really raises, for me, the key issue about moral rights – how do they comport with the strong protection of free speech in the U.S.? This is, in fact, the fourth of the specific questions posed in the Notice of Inquiry. A strict right over derivatives might be an effective weapon for rights holders to use to prevent criticism, comment, parody, and other acts of free expression that both benefit society and embody the purpose of copyright in the U.S. Fair use developed largely to prevent copyright from being abused to suppress protected speech; the role of fair use in parody is one key example of that role. So, if fair use is necessary to prevent the economic rights—especially the right over derivatives—from becoming an anti-free expression weapon, how could we ensure that separate moral rights do not pose the same risk? Would fair use apply to moral as well as economic rights?

The fear that moral rights could be used to chill free speech, especially as a way to enforce a stricter rule against defamation than the U.S. currently does because of the First Amendment, was expressed nicely by Allan Adler of the Association of American Publishers  during a symposium on moral rights in 2016. Adler correctly notes that moral rights might eliminate the need, under libel and slander laws, to prove that a statement was false in order for it to be found defamatory. A standard of “damaging to reputation” (under a moral right of integrity) would be quite different, and could significantly compromise the right of free expression.

Overall, the philosophy behind moral rights is rooted in European ideas of copyright as a natural right, a fundamental aspect of a creator’s personality. American law has consistently rejected that philosophy in favor of a utilitarian approach, where copyright is an economic tool to incentivize creation, with limitations to prevent it from growing beyond that role.  As much as I struggle with the idea that attribution is the right thing to do, especially in scholarly works, I remain unconvinced about moral rights. I fear that adopting such rights would compromise the fundamental nature of American copyright law, and that what we lost would be far greater than what we would gain.  At the very least, fair use would have to extend as a limitation over moral rights, and it is not clear how that would work, or that such limited moral rights would actually position the U.S. better vis-a-vis Berne.  Overall, I come down on the side that says what we already have to protect attribution and integrity is adequate, and any efforts to increase those protections would be more risky than beneficial.

Perhaps for a different post, it would be interesting to consider whether judges could improve the situation for scholarly authors by including attribution as a consideration for fair use in some situations.  Other countries often do make attribution a requirement for various educational uses under the umbrella of “fair dealing,” so it is not a far-fetched idea. Still, like the rest of fair use, treating attribution as an additional factor in the analysis would have to be handled carefully and could only be applied when the totality of circumstances surrounding the use were considered and it was found that attribution improved the fairness of the use without diminishing the communicative force of the new work. In other words, we would come back to free speech concerns.

Kevin Smith

Kevin Smith is a librarian, a lawyer focusing on copyright issues, a scholarly communications advocate, and the Dean of Libraries at the University of Kansas.

Comments (5)

  1. Interestingly, the early versions of CC licenses included language that required no reuse of the work that would mutilate, distort, etc. the original in such a way as to harm the reputation of the author. Mysteriously, without fanfare, that language disappeared from later versions. Does anyone know why?

    1. I just looked at CC BY 1.0, 2.0, and 3.0, and CC BY-ND 1.0 (all generic/unported) and can’t find such language? They did add a moral rights waiver in 4.0, and their discussion notes for that mention that some international translations added moral rights clauses, so perhaps you’re thinking of one of the “ports” to a different jurisdiction?

      1. Although per se reference to moral rights is limited in the licenses to a waiver, there is still a provision in the licenses (clause 3(a)4) that obligates the user/licensee to remove any or all of the attribution information when requested by the licensor. So it is still possible for the original licensor to dissociate herself from uses of which she disapproves. I have exercised that clause in one instance, and the issue was resolved to my satisfaction.

        1. Sure, but that is achieved globally through quasi-contractual means rather than relying on the underlying default law. So I don’t think it is what the original poster was referring to?

  2. […] Kevin Smith on In the Open, “Moral Rights and Fair Use” […]

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