What is needed - 2
The CRA believes that UK Law should be modified to take greater account of the spirit of the Berne Convention, to which it is a signatory. The relatively minor changes we propose would bring benefit not only to individual creative workers but to the economy as a whole for reasons which are laid out in the body of this document.
The concept of moral rights was first introduced into UK law by the 1988 Copyright, Design and Patents Act (CDPA). However, despite the fact that this Act expressly cites the Berne Convention as its guiding international law, creators’ moral rights are poorly served by the UK’s principal law governing IP.
The Berne Convention defines the moral rights thus:
“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.”
“Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorising the reproduction of these works, in any manner or form.”2
The moral rights need to be automatic
Under the CDPA creators are required to assert their right to be identified as the author of their work, in writing. This is unlike the economic aspect of copyright, which is automatically ascribed to the creator as soon as a work is ‘fixed’ or recorded in some way.
The CDPA’s requirement for ‘assertion’ – involving specific reference in either the document by which the work is licensed or assigned (for instance, in a publishing or recording contract), or in another legal instrument – adds unnecessary complexity and, as we shall see, is wide open to abuse.
The moral rights need to be permanent
Moreover, the Act permits creators to ‘waive’ their moral rights – and in so doing, to divest themselves of both their right of attribution (called the ‘paternity right’ in UK law) and right of integrity.
This problem was flagged up as soon as the Act became law. Blackstone’s Guide to the CDPA in 1989 stated:
“The existence of a power to waive moral rights calls into question the effectiveness of the entire code of moral rights”3
The CDPA thus makes it all too easy for producers and rights exploiters to coerce creators into being parted from their moral rights. Many rights exploiters are quick to take advantage of this, with this waiver forming an early clause in many contracts with creators.
Although there are plenty of examples of good practice in the UK – perhaps the director will be named on the credits of a film, a violinist listed as member of an orchestra, a photographer credited when a photograph is published in a paper or on-line or a newspaper reporter given a by-line – creators are regularly bullied into parting with their moral rights. Contracts which insist upon a waiver of these rights have become the norm across a range of industries, with this coercion being seen as ‘standard’. In its current formulation, the CDPA facilitates this onerous situation.
For instance, the typical contract from a major broadcaster for copyright works commissioned from freelance contributors contains this standard clause:
“You unconditionally and irrevocably waive all moral rights conferred by the Copyright Designs and Patents Act 1988 and all other moral and author’s rights of a similar nature under the law of any other jurisdiction”4
It was occasionally possible to justify a few such practices in the pre-digital age on the grounds of rights exploiters’ need to bring products and services to market quickly and easily. However, the situation has changed with digital technology which is capable of ‘bundling’ identifying information inseparably with the work itself. This presents a counter-argument to the historic reasoning behind many of the statutory limitations on UK moral rights.
Moral rights must apply to all works, including news
The same argument applies to specific exclusions of moral rights from the provisions of the CDPA – for example, in anything published in newspapers and periodicals. This has been justified by the notion that the ability of authors to enforce attribution and integrity rights may interfere with the process of preparing and rapidly disseminating news items.
However, in the digital age, publishers and editors have straightforward means at their disposal both to attribute and to track use: for instance by incorporating into digital files ‘metadata’ that associates the work with the creator, or by insisting that this metadata is incorporated by the creator before work is accepted digitally. This recommendation is discussed in more detail below.
Attribution and integrity rights are abused regularly. Here are just a few examples that demonstrate the impact of inadequate legal protection:
Educational book authors who, having been forced to assign all rights including moral rights, have no right to edit or check the work – and then find that the published version contains serious errors;
Documentary photographers whose work was produced in one context find the image is re-used in an advertising context (for no further re-use fee) in a way which undermines the serious editorial documentary character of the original photograph;
Illustrators find their images are re-used in a new book or article, and digitally manipulated. For illustrators with a recognisable style the public may not know that this is not the art work of the illustrators;
Poor translations of books and film scripts cannot be stopped either by authors whose work they pretend to be, or by film directors.
As the Copyright Design and Patents Act cites the Berne Convention as its guiding international law, the CDPA should be equipped to enforce its intention.
The CRA therefore recommends:
- prohibiting the moral rights waiver;
- removing the need to ‘assert’ moral rights before the creator of a work must be attributed with its creation; and
- making the moral rights available to all creators.
The moral rights need to be enforceable in the digital age
Another simple way of helping IP legislation to associate digital works with their creators and owners would be to extend the 2001 CDPA Amendment Act’s Article 7. This allowed creators or other IP owners to act against those who remove digital signatures that identify them.
However, although it is now prohibited to remove digital signatures and rights information, it is not compulsory to include them. This leaves the legislation incomplete and less effective than it could be. To ensure the connection between the UK’s creative content and its creators and rights owners, the CRA recommends that it should be compulsory for all digitised copies of creative content to be encoded with the details of all rights holders – including details of the creators who originated the work.
This includes players and composers on pieces of material, photographers, by-lines on written articles etc.
It is also unclear how effective Article 7 will be: it provides that creators may seek the same remedies that would be available against those who make unauthorised copies of their work; but these are limited to the market value of the unauthorised copy. (This is in itself a hindrance to creators ensuring fair compensation for all uses of their works: see below.)
The courts may have difficulty, to say the least, in determining the market value of a by-line per se.
Moral rights benefit consumers too
The measures we propose would have considerable benefits for consumers in the digital age. The market demand for ‘choice’ grows steadily. Success will follow those providers who are able to satisfy this appetite, and to direct consumers to the content that they require.
Consistent ‘branding’ of creators’ work through the proper application of moral rights will achieve this. Digital encoding that allows the consumer to follow the work of individual performers, writers, photographers, journalists and artists (and to find them via internet search engines) will go some way towards letting them find the work of creators that they are interested in and buy their work.
These are simple ways of associating the creator of a work with any copy of the work, digital or otherwise, and therefore making piracy and other abuses of the creator’s rights easier to track and prosecute.
Other benefits of universal moral rights
A universal moral rights regime, with no requirement to assert these rights; with no waiver of these rights; and in which all digital copies were required to identify the creator, would also have other benefits:
- It would be a means of identifying and thus asserting the distinctiveness of the UK’s creative output in the global marketplace;
- It would aid current and future initiatives aimed at creating digital libraries, so as to provide authoritative information to both users and rights owners;
- It would make sense of any provision for licensing of ‘orphaned’ works – those for which no creator can be identified – by giving every creator the right to be identified, and thus minimising the chances of a work being ‘orphaned’.
The CRA therefore recommends that without universal moral rights any legal provision for ‘orphaned’ works would be logically and legally nonsensical.
Manifesto: 2: Defending your work
3: You need sound contracts
2 Articles 6 and 9 of the Berne Convention 1886 (last revised in 1979)
3 Gerald Dworkin and Richard Taylor (1989) Blackstone’s Guide to the Copyright Design and Patents Act 1988