AN IDEA BEHIND ITS TIME: PERSONAL RIGHTS FOR CREATORS OF COPYRIGHTED WORKS

Don E. Tomlinson 01/01/1998

It's been the law in most of Europe for more than a century. It's quite simple, really. It just says that regardless of the sale of the copyright by the creator or "author" of a work, some rights are not -- in fact, cannot -- be conveyed by the creator or author to any second party. These are called "moral" rights, but "personal" may be a better way to think of them because it avoids the definition of "moral" in English, a definition that is contextually misleading.

At its most basic level, the "law" is stated in Article 6bis of the Berne Convention, the most significant of the international copyright treaties. It states:

"Independent 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 derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation."

Congress has been hostile to this idea all along. In fact, one of the primary reasons America did not become a signatory to the Berne Convention until the 1980s (the treaty opened for signatures in the 1880s) is that the copyright ownership industry had strenuously objected to America signing this treaty if it meant that Article 6bis had to be strictly adhered to (America decided to circumvent the problem by paying lip service to Article 6bis by granting such rights on a very limited basis to the narrow copyright category of visual artists). The philosophy underlying copyright law in from the beginning has been that it is economic rights -- not personal rights -- that are to be vindicated.

Some vestiges of personal rights, however, have found their way into the law; except in the case of visual artists, you just have to look for them. One place to look concerns sound recordings. Once a sound recording of a new song has been released for sale by a record company -- with the required express permission of the copyright owner of the underlying musical composition -- subsequent record companies may record and release versions of that same song without permission of the copyright owner of the underlying musical composition. In copyright law, this is called the "compulsory license" provision. There is, however, an exception to this provision. It is Section 115(a)(2) of the Copyright Act of 1976, which states:

“A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work ... except with the express consent of the copyright owner.” It is obvious that a personal right is inherent in this provision. It is a recognition that "integrity" should play a part in what users can do with copyrighted matter. Of course, it is the copyright owner and not the creator (assuming the creator is no longer, or never was, the copyright owner) to whom this right is assigned, but the principle is evident nonetheless.

Other parts of the copyright act signal this same idea. Most specific is Section 106A, which grants rights of attribution and integrity to the authors of works of visual art. These rights include the right "to claim authorship of the work," the right "to prevent the use of his or her name as the author of any work of visual art which he or she did not create," the right "to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation," the right "to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right," and the right "to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right."

While Section 106A is limited to "visual art" (which, by definition, does not include motion picture images), Section 106 contains the "bundle of rights," which are applicable more generally to the various categories of copyrighted works, including Section 106(2), which grants copyright owners "the right to prepare derivative works based upon the copyrighted work." And while the basic underlying principle behind this right is clearly economic, it may nonetheless be said that an "integrity" right is inherent in it, as well, because a closely-related but, e.g., poorly done derivative work could be quite reputationally injurious to the creator. As with the compulsory license limitation, the right to prepare derivative works belongs, once again, to the copyright owner, but the principle is still unmistakable.

We have recognized integrity, and other personal rights, in our copyright law on a more or less "peek-a-boo" basis for quite some time. Taking the next step and explicitly recognizing personal rights for authors is clearly warranted and long overdue. To be sure, there are compromises to be discussed and there are complications based on digital technology to be dealt with, but for too long we have denied the central premise -- which is that creators should have some rights that are inalienable. Alienability, given the strength of the copyright industry and the relative lack of strength of creators, would make shadow of substance in any grant of personal rights to creators, but that is a subject for another day.

Don E. Tomlinson is a professor of journalism and mass communication at Texas A&M University and adjunct professor of law at the University of Houston Law Center. Tomlinson publishes extensively on copyright and media law topics, and he has a considerable practice as a complex litigation mediator and as a consultant on copyright and media law matters. LL.M (Intellectual Property), University of Houston Law Center, J.D., University of Arkansas at Little Rock School of Law, M.J., University of North Texas, B.S., Arkansas State University.

Don E. Tomlinson

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