Theories of Moral Rights of Authorship

Droit morals or moral rights are non-economic rights protecting authors’ and artists’ reputation or personal interests. For example, the purchaser of a painting is barred from ruining the painting or concealing the painter’s identity. Although not financially harmful to the artist, these acts are detrimental to the bond between the artist and their creations.

1.  The right of attribution is the right to be credited for the works that the one has created. For instance, citing an article when you adopt content from such article so as to give the author due credit for the same.

2.  The right of integrity is the right to protect one’s work from being vandalized or destroyed.

3.  The right of disclosure gives one the power to decide whether to make one’s creation public and when to do so.

4.  The right of withdrawal is the right to demand of return of those works that an author has come to regret.

5.  The right against excessive criticism authorizes the author to recover against abuse by a critic.

6.  The “droit de suite” gives the author a right to collect a fee on resale of his work.

Personality Theory

The personality theory furnishes the best support for the droit moral. It asserts that the works of authors are manifestations of their personalities. An author defines himself/herself in and through her work. For instance, the Harry Potter series is the manifestation of the personality of J.K. Rowling. As a consequence of this, the moral entitlement of the author to have control over his or her works is pretty considerable. This is partly because maintaining a connection with and control over works is one of the ways in which an artist establishes and sustains an identity and partly because these injuries result in a corresponding impairment of the personality of a creator.

Cultural Theory

Cultural theory is centered on the principle that copyright law should aim to foster and sustain a just and attractive culture. It is prospective and consequential; urging the creation of a legal framework that will enable or prompt people to behave in ways that will give rise to a more attractive society in the future is the intended result. The cultural theory tries to identify fundamental human needs in advance. Psychological bonds between artists and their creations over all other considerations are unsupported by Cultural theory. However, Cultural theory does ensure that all persons are given fair shares of material resources and fair access to the opportunities necessary for full human flourishing and is thereby centered towards distributive justice.

Perspectives:

1. Moral rights when construed strictly with regards to personality theory gives little scope to previous works to be used as inspiration for new works. For instance, when viewed from the perspective of the personality theory, classical motion pictures that were produced in black and white should not be colorized. However, from the perspective of cultural theory, their colorization should be allowed as long as the original copies are not made scarce, thereby creating a more just and attractive culture. Perhaps preservation is more sensible with respect to unique or limited edition works.

2. Work for hire agreements often fail to respect the author’s personal interests in their works and is also, arguably, one of the main reasons as to why moral rights are not extended to work for hire agreements.

3. The right of integrity protects artists and authors from the destruction or mutilation of their works, thereby resulting in the curbing of the interests of consumers to remix their creations. In some contexts, the artists’ interests may have to be tempered by legal recognition of the equally important interests of consumer self-expression. Cultural theory supports the latter.

4. The fundamental human need for self-expression is closely tied to the right of attribution– the ability to project one’s identity into the world and to be recognized by others. Requiring recognition would not materially impair the opportunities for remixing and secondary creativity.

5. A related criticism of contemporary copyright law fueled by personality theory theorizes that several doctrines in combination inhibit the ability of creative people to remain economically independent and thus be in control of their creative activities and products. However, cultural theory takes the contrary position that people are not always the best judges of their own interests and that the law should sometimes guide them in directions they are not currently inclined to go.

6. It is widely recognized that the concept of absolute originality in creative works is unrealistic or at least rare. Awareness that creativity is more often collaborative and that many artists incorporate not only the ideas of their predecessors but also their materials has prompted some scholars to argue for important adjustments to its doctrinal implications based upon personality theory. As per the cultural theory, for ensuring that all persons have opportunities to engage in self-fulfilling creative activities the rules governing their transformative uses of already existing artistic products must be liberalized.

7. Copyright in India lasts till 70 years after the death of the author. However, if the basic purpose of copyright is to reflect and protect an author’s personal interests in his creations, that term is too long, and moral rights should expire with the death of the author. If this happens, it will culturally benefit society as a whole. giving new creators more scope for creations without infringing the moral rights of the late author.

8. If the commercial distribution of work is authorized by the creator, he no longer stands entitled to the right of integrity. Other musicians cannot be prevented from making and distributing covers even if they are vastly distinct from what the creator intended when he made the song. This legal privilege has a very pertinent cultural benefit thereby allowing generations of musicians to test and enhance their own skills by making their own covers of the composition.

Author: Rachit Taparia, 3rd year law student of Gujarat National Law University, Gandhinagar and Legal Intern at PA Legal. 

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