CO Moral Rights Examination Focuses on Obscure Area With Global Import
The Copyright Office’s nascent examination of the U.S. moral rights landscape will delve into an area of copyright law that has largely been on the back burner within the U.S. but has major implications abroad, copyright stakeholders said in interviews. The CO will take its first steps in examining moral rights via a planned April 18 symposium with the George Mason University School of Law and GMU’s Center for the Protection of Intellectual Property (CPIP). The CO said the symposium will be a precursor to a more formal CO analysis of the issue (see 1603110072). A creator’s moral rights may include the right to attribution, the right to publish anonymously or under a pseudonym, and the right to preserve the integrity of a work from alteration. The direction a potential future Copyright Office policy study on moral rights could take remains unclear. Stakeholders offered divergent policy visions, including maintaining the U.S.’s current status quo and adopting moral rights laws more consistent with those enforced in Europe.
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The symposium “is really the first step in a larger dialogue” on moral rights and isn’t meant to suggest any particular approach in a future CO study on the issue, said CPIP Director-Copyright Research and Policy Sandra Aistars. Moral rights policy “is an interesting topic because it affects parts of the creative community in different ways and it cuts across a bunch of different interests," she said. "There’s really no predetermined outcome that you can guess about by knowing who the players are.” Register of Copyrights Maria Pallante recommended last year the CO further study the U.S. moral rights landscape based on a request from House Judiciary Committee ranking member John Conyers, D-Mich. The CO decided to have a symposium on moral rights as part of its academic partnership with GMU (see 1601150044) to draw on a wide range of stakeholders on moral rights issues to determine which issues the CO should pursue in a more formal policy study, an industry lobbyist told us.
The U.S. has limited statutes that specifically deal with moral rights, despite being a signatory to the Berne Convention, which includes protections on moral rights, a pro-moral rights lobbyist told us. The 1990 Visual Artists Rights Act recognizes moral rights on listed works of visual art, but the U.S. otherwise largely relies on a “patchwork of laws” that have moral rights-like elements, the lobbyist said. The U.S. has moral rights elements in laws like the Lanham Act on false advertising and a copyright holder’s right under the Copyright Act to control the creation of adapted or otherwise derivative works.
An in-depth CO examination of the U.S. moral rights landscape is needed, given the U.S.’ current reliance on legal “back doors” like the Lanham Act as evidence that it’s complying with Berne, said music industry attorney Chris Castle, who was invited to participate in the CO-GMU symposium. “It would be nice” if the U.S. adopted a more expansive statute that would implement “European-style moral rights that would be more consistent” with Berne and the U.N.’s Universal Declaration of Human Rights, which also includes references to moral rights, Castle said. Such a statute would likely need to be enacted as part of a larger package of amendments to the Copyright Act, which the House Judiciary Committee is reviewing, Castle said.
Almost all European nations specifically divide copyright law between economic rights to license a work and moral rights. “What the U.S. considers as copyright would be considered an economic right” in Europe, said Tom Sydnor, visiting scholar at American Enterprise Institute’s Center for Internet, Communications and Technology, who favors the U.S. continuing its current approach to moral rights. It’s not clear the Berne Convention would specifically require the U.S. to enact European-style laws to prevent the transfer of moral rights, and thus far “we have always interpreted [moral rights] fairly narrowly,” Sydnor said. Economic rights and moral rights typically “work against each other” in European law because bars on transferring moral rights may “act as a bar” on transferring your economic rights,” he said.