Copyright and Rights in Performances
Moral Rights
John Lambert
7 March 2004
Last updated 28 March 2006
For many years the French and other continental legal systems have recognized a "droit moral" in respect of certain types of copyright works. Such rights (translated into English not particularly felicitously, as "moral rights") assured the integrity of the work and reputation of the author. They subsisted independently of "copyright" in the common law sense, which continental lawyers referred to as "economic rights". Although the Bern Convention (to which most common law states were party) provided for such rights it is only recently that they have found their way into our law. The only exception was the right against false attribution which existed under the 1956 Copyright Act.
Bern Convention
Art. 6bis (1) of the Bern
Convention provides:
"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."
The right to claim authorship is known as the right of paternity and the right to object to derogatory action as the right of integrity. Para (2) of that article required those rights to be maintained until at least the expiry of the economic rights in the work. These rights are imported into English law by Chapter IV of the Copyright Designs and Patents Act 1988.
Right of
Paternity
S.77 (1) of the 1988 Act provides authors of artistic, dramatic,
literary or musical copyright works (other than computer programs,
typeface designs and computer generated works) and directors of
copyright films with the right to be identified as author or director,
as the case may be, in the circumstances mentioned in that section
provided that such right is asserted in accordance with s. 78. The right
of paternity applies to the whole or any substantial part of a work
(s.89 (1)).
Where a work is commercially published or copies of a film or sound recording are issued to the public, the author or director is entitled to be identified in or on each copy or, in such other manner as is likely to bring his identity to the notice of the person acquiring a copy. Otherwise, the author must be identified in a manner likely to bring his identity to the attention of the person seeing or hearing a performance of the work, viewing an exhibition or showing or watching the broadcast. In each case the identification must be clear and reasonably prominent (s.77 (7)). If the author or director in asserting his right to be identified specifies a pseudonym, initials or some other particular form of identification, that form shall be used. Otherwise any reasonable form of identification may be used (s.77 (8))
Artistic Works
The author of an
artistic work has the
right to be identified as author whenever:
(a) the work is published commercially,
exhibited in public or a visual image of it is communicated to the
public;
(b) a film that includes a visual image of the work is shown in public
or copies of such a film are issued to the public; or
(c) copies of a graphic work representing a work of architecture in the
form of a building or a model for a building, a sculpture or a work of
artistic craftsmanship are issued to the public (s.77 (4)).
The author of a work of architecture in the form of a building also has the right to be identified on the building as constructed or, where more than one building is constructed to the design, on the first such building to be constructed (s.77 (5)). The author may be identified by appropriate means visible to persons entering or approaching the building. Further, where the author of such a work is identified on the building and the building is the subject of derogatory Treatment the author has the right to require his identification with the building to be removed pursuant to s.80 (5).
Dramatic Works
The author of a
dramatic work has the
right to be identified as such whenever the work is published
commercially, performed in public or communicated to the public. He or
she is also entitled to be identified as author when copies of a film or
sound recording including the work are issued to the public. Such right
also includes the right to be identified as the author of the work from
which an adaptation was made whenever any of those events occur in
relation to an adaptation of the work (s.77 (2)).
Literary Works
That same right is shared by the author of any
literary work other than
words intended to be spoken or sung with music. The author of a literary
work consisting of words intended to be sung or spoken with music has
the right to be identified whenever the work is published commercially,
copies of a sound recording of the work are issued to the public or a
film of which the soundtrack includes the work is shown in public or
copies of such a film are communicated to the public. That right
includes the right to be identified as author of the work from which the
adaptation was made whenever any of those events occur in relation to
such an adaptation (s. 77 (3)).
Musical Works
That latter right is also shared by authors of
musical works (s.77 (3)).
Films
The director of a
film has the right to be
identified whenever the film is shown in public, broadcast or when
copies of the film are communicated to the public (s.77 6).
In the case of a work of joint authorship, s.88 (1) of the 1988 Act
confers the right of paternity on each joint author provided that each
such author asserts the right in relation to him or herself.
Asserting the
Right of Paternity
The right of paternity may be asserted generally or in relation to a
specified act or description of acts (s.78 (2) of the 1988 Act). It may
be asserted upon an assignment of copyright by including in the
instrument effecting the assignment a statement that the author or
director asserts his or her right to be identified in relation to that
work as provided by s.78 (2) (a) whereupon the assignee and anyone
claiming copyright in the work through him or her will be bound by the
assertion whether or not he had notice of it (s.78 (4) (a)). The right
may also be asserted by an instrument in writing signed by the author or
director by virtue of s.78 (2) (b) whereupon it will bind anyone who has
notice of the assertion (s.78 (4) (b)). The author of an artistic work
may assert the right in relation to the public exhibition of his or her
work by securing that when he or she or other first owner of copyright
parts with possession of the original, or of a copy made by the author
or under his or her direction or control, the author is identified on
the original or copy, or on any frame, mount or other thing to which the
original or copy is attached (s.78 (3) (a)). Anyone into whose hands
that original or copy comes, whether or not the identification is still
present or visible, is bound by such assertion (s.78 (4) (c)).
Alternatively, the author can assert his or her right of paternity by
inserting in any licence authorizing copying of the work a statement
that he or she asserts his or her right to be identified should such
copy be exhibited in public pursuant to the licence provided that such
statement is signed by or on behalf of the licensor (s.48 (4) (d)). Such
an assertion binds the licensee and anyone into whose hands a copy made
in pursuance of the licence comes whether or not he has notice of the
assertion (s.78 (4) (d)).
Exceptions
Where the first owner of the copyright in a work is the author's
employer pursuant to s. 11 (2) or s. 9 (2) (a) of the Act, the right of
paternity does not apply to anything done by or with the authority of
the copyright owner (s.79 (3)). Nor does it apply to a work in which
Crown or
Parliamentary copyright subsists or to a work in which
copyright originally vested in an international organization unless the
author or director had previously been identified as such in or on
published copies of the work (s.79 (7)).
Further, the right does not apply in relation to:
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any work made for the purpose of reporting current events (s.79 (5)); or |
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publication of a literary, dramatic, musical or artistic work in a newspaper, magazine or similar periodical, encyclopaedia, dictionary, yearbook or other collective work of reference, made for the purposes of such publication or made available with the consent of the author for the purposes of such publication (s.79 (6)). |
The following exceptions to copyright are also exceptions to the right of paternity by virtue of s.79 (4):
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fair dealing in relation to reporting current events by means of a sound recording, film or broadcast, |
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incidental inclusion of a copyright work in an artistic work, sound recording, film or broadcast; |
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examination questions under s.32 (3); |
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parliamentary or judicial proceedings; |
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Royal Commissions or statutory inquiries; |
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design documents and models; |
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designs derived from artistic works; and |
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acts permitted on assuming that copyright has expired in relation to anonymous or pseudonymous works or films. |
Finally, the right of paternity is not infringed by any act to which the person entitled to it has consented (s.87 (1))..
Term
The right of paternity lasts for so long as copyright subsists (s.86
(1)).
Right of
Integrity
S.80 (1) of the Copyright Designs and Patents Act 1988 provides authors
of artistic, dramatic, literary or musical copyright works (other than
computer programs and computer generated works) and directors of
copyright films with the right not to have his or her work subjected to
derogatory treatment, in the circumstances mentioned in that section.
"Treatment" for the purposes of this section is defined by s.80 (2) (a)
as:
".... any addition to, deletion from or
alteration to or adaptation of the work, other than -
(i) a translation of a literary or dramatic work, or
(ii) an arrangement or transcription of a musical work involving no more
than a change of key or register;"
Such treatment is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director (s.80 (2) (b)). The right of integrity applies in relation to the whole or any part of a work (s.89 (2)). It also extends to the treatment of parts of a work resulting from a previous treatment by a person other than the author or director, if those parts are attributed to, or are likely to be regarded as the work of, the author or director (s.80 (7)). In the case of a work of joint authorship, s.88 (2) confers the right of integrity on each joint author.
Infringement
The right is infringed in the case of:
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an artistic
work (other than a work of architecture in the form of a building)
by |
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a dramatic,
literary or musical copyright work by: |
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a film by showing in public or communicating to the public a derogatory treatment of the film or by issuing to the public copies of a derogatory treatment of the film ((s.80 (6)). |
The right of integrity is also infringed by possessing in the course of a business, selling or letting for hire, offering or exposing for sale or hire, exhibiting in public or distributing in the course of a business or distributing otherwise than in the course of a business so as to affect prejudicially the honour or reputation of the author or director, any article which is, and which the defendant knows or has reason to believe to be, an infringing article (s.83 (1)). An infringing article for these purposes is defined as a work which has been subjected to derogatory treatment and has been or is likely to be subject to any of the acts mentioned in the sub-paragraphs above.
Exceptions
As with right of paternity, the right of integrity does not apply in
relation to any work made for the purpose of reporting current events
(s.81 (3)) or publication of a literary, dramatic, musical or artistic
work in a newspaper, magazine or similar periodical, encyclopaedia,
dictionary, yearbook or other collective work of reference, made for the
purposes of such publication or made available with the consent of the
author for the purposes of such publication (s.81 (4) ). Nor does the
right apply in relation to any subsequent exploitation elsewhere of such
a work without any modification of the published version.
s.81 (6) of the Act provides that the right of integrity is not infringed by anything done to avoid committing an offence, comply with any duty imposed by or under any enactment, or, in the case of the British Broadcasting Corporation, avoid including in a broadcast anything which offends against good taste or decency or which is likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling. Where the author or director is identified at the time of the relevant act or has previously been identified in or on published copies of the work, this defence is conditional upon a sufficient disclaimer.
Where the first owner of the copyright in a work is the author's employer pursuant to s. 11 (2), Crown or Parliamentary copyright subsists or copyright originally vests in an international organization, the right of integrity does not apply to anything done to the work by or with the authority of such first owner unless the author or director is identified at the time of relevant act or has previously been identified in or on published copies of the work (s.82 (2)). Even where the author has been identified there can be no infringement where there is a sufficient disclaimer.
As with the right of paternity, the right of integrity is not infringed by any act to which the person entitled to it has consented (s.87 (1)). In the case of works of joint authorship the right of each joint owner is satisfied by his consent (s.88 (2)). However, a waiver by one joint author does not bind the others (s.88 (3)).
Term
As with the right of paternity, the right of integrity in relation to a
work lasts for so long as copyright subsists (s.86 (1).
False
Attribution of Work
A person has the right under s.84 (1) of the Act not to have an
artistic, dramatic, literary or musical work falsely attributed to him
or her as author. This includes any false attribution as to authorship
of a work of joint authorship and false attribution of joint authorship
to a work of sole authorship (s.88 (4)). A person also has the right not
to have a film falsely attributed to him or her as director (.s.84 (1))
or as a joint director (s.88 (5)). A similar provision existed in s.43
of the Copyright Act 1956. Attribution for this purpose means a
statement, whether express or implied, of who is the author or director.
The right applies where, contrary to the fact, a dramatic, literary or
musical work is falsely represented as being an adaptation of the work
of the complainant, as it does where the work is falsely attributed to
that person as author. It similarly applies where a copy of an artistic
work is falsely represented as being a copy made by the author of that
work (s.84 (8)).
Infringement
The right is infringed in respect of a work of any description by
issuing to the public copies of a work in or on which there is a false
attribution.
In the case of an artistic work it is infringed by exhibiting, or a
copy, in public in or on which there is a false attribution (s.84 (2)).
It is also infringed in respect of such a work by dealing with a work
that has been altered after the author parted with possession of it as
being the unaltered work of the author, or by dealing with a copy of
such a work as being a copy of the unaltered work of the author, knowing
or having reason to believe that that is not the case (s.84 (6)).
In the case of a dramatic, literary or musical work, the right is infringed by performing the work in public or communicating it to the public as the work of the complainant (s.84 (3) (a)).
In the case of a film, it is infringed by showing it in public, or communicating it to the public as being directed by that person (s.84 (3) (b)).
The issue to the public or public display of material containing a false attribution in relation to any of the above-mentioned infringements is itself an infringement under s.84 (4). So, too, is possessing or dealing with a copy of a work of any description in respect of which there is a false attribution (s.84 (3) (a)) knowing or having reason to believe that there is such an attribution and that it is false. Similarly, possessing or dealing with an artistic work when there is a false attribution in such knowledge or with such belief infringes the right (s.84 (3) (b)).
"Dealing" for the purpose of this provision is defined by s.84 (7) as "selling or letting for hire, offering or exposing for sale or hire, exhibiting in public, or distributing".
Term
Unlike the rights of paternity and integrity, the right not to have a
work or film falsely attributed subsists only until 20 years after death
(s.86 (2)).
Right to
Privacy
S.85 (1) of the Copyright Designs and Patents Act 1988 confers upon
anyone who commissions a photograph or film in which copyright subsists
for private and domestic purposes a right not to have copies of the work
issued to the public, or the work exhibited or shown in public or
communicated to the public. Such right is infringed by doing or
authorizing any of those things.
This right applies to the whole or any substantial part of any the above-described works (s.89 (1)). The right is not infringed by incidental inclusion of the work in an artistic work, broadcast or anything that would fall within the parliamentary and judicial proceedings, Royal Commissions and statutory inquiries, acts done under statutory authority or anonymous, pseudonymous works or films where copyright is assumed to have expired exceptions to copyright (s.85 (2)). Nor is it infringed by anything done with the consent or waiver of the person entitled to the right (s.87 (1)). As with the rights of paternity and integrity, the right of privacy subsists for the term of copyright (s.86 (1)). Where a photograph or film is jointly commissioned the right belongs to each person who commissioned it. Thus, the right of each is satisfied by that person's consent and a waiver by one of those persons does not bind the others (s.88 (6)).
Waiver or
Consent
Without prejudice to the general law of contract and estoppel (s.87
(4)), any of the rights provided under chapter IV of the Act may be
waived by a written instrument signed by the person entitled to the
right (s.87 (2)). Such waiver may relate to a specific work, to works of
a specified description or to works generally. It may relate to existing
or future works. It may be conditional or unconditional and expressed to
be subject to revocation. If a waiver is made in favour of the owner or
prospective owner of the copyright in the work or works to which it
relates, it shall be presumed to extend to his licensees and successors
in title unless a contrary intention is expressed (s.87 (3)). Waivers or
consents bind personal representatives (s.95 (4)).
Transmission of
Moral Rights on Death
The rights of paternity, integrity and privacy may pass by testamentary
disposition to whomsoever the owner may direct pursuant to s.95 (1) (a)
of the Act. In the absence of such a direction the moral rights in a
work passes to whoever is entitled to the copyright in the work (s.95
(1) (b)). If such a right does not pass under either of those provisions
it remains exercisable by the owner's personal representatives (s.95 (1)
(c)). Where copyright forming part of a person's estate passes in part
to one person and in part to another, as for example where a bequest is
limited so as to apply, to one or more, but not all, of the things the
copyright owner has the exclusive right to do or authorise, or to part,
but not the whole, of the period for which the copyright is to subsist,
any right which passes with the copyright is correspondingly divided
(s.95 (2)). Where the right of paternity or the right to privacy passes
to more than one person it may be asserted by any of them (s.95 (3)).
Where the right of integrity passes to more than one person it may be
exercised by each of them and is satisfied in relation to any of them by
his consenting to the treatment or act in question.
The right to object to false attribution is actionable by the personal representatives of the person concerned (s.95 (5)).
Moral Rights in Performances
Art 5 (1) of the WIPO Performances and Phonograms Treaty confers upon performers:
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a right to be identified as the performer of his performances, except where omission is dictated by the manner of the use of the performance; and |
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a right to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation. |
HM government is
party to that Treaty and was bound to implement it upon ratification.
The implementing legislation is
The Performances (Moral Rights,
etc.) Regulations 2006 which came into force on 1 Feb 2006.
For further information see John Lambert
"Copyright, Database Rights and
Rights in Performances: Copyright Tribunal and Moral Rights for
Performers" of 7 Feb 2006.
