CO's Moral Rights Symposium Seen Unlikely To Result in Push for Change
The Copyright Office’s Monday symposium on moral rights will provide a solid base for a more formal CO analysis on the subject, but probably won’t lead to the office changing its position on how U.S. law should deal with moral rights to satisfy the requirements of the Berne Convention, participants told us. 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 U.S. believes it largely satisfies the convention’s requirements for signatories to provide moral rights protections via existing laws, including the Lanham Act’s provisions on false advertising and a copyright holder’s right under the Copyright Act to control the creation of adapted or otherwise derivative works (see 1603150067).
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The CO did “a number of thorough studies” on copyright issues at the request of House Judiciary Committee leaders over the course of the committee's ongoing Copyright Act review that have “generally tended to languish” once the CO has delivered its recommendations to House Judiciary, said Association of American Publishers Vice President-Legal and Governmental Affairs Allan Adler. House Judiciary’s IP Subcommittee already addressed moral rights “in a very perfunctory way” via a 2014 hearing (see 1407150031) that focused more on copyright terms and resale royalties, Adler said. “I would be very surprised if [the CO] calls for new legislation” to address Berne’s moral rights provisions, said Paul Levy, a Public Citizen lawyer. Nothing suggests the CO is interested in deviating from its support of the U.S.’s status quo that existing U.S. laws satisfy the convention’s moral rights requirements, Levy said. Music industry attorney Chris Castle told us he believes it’s still too early to gauge whether the CO would recommend further legislation to address moral rights.
AAP’s position on how U.S. law should accommodate moral rights “would likely remain the same” now as it did in the 1980s, when the industry group said existing U.S. laws like the Lanham Act “more or less addressed” the convention’s requirements, Adler said. “Moral rights is not something that has a tradition in the U.S. anywhere close to the degree it has in European law,” in part because European law doesn’t include provisions similar to the free speech guarantees in the First Amendment, he said. Adler told us he will also argue U.S. contract law “would have difficulty adapting” to a law that would adopt anything close to a European-style moral rights statute.
Levy, who will speak on behalf of the “copyleft” community, said he will argue against the CO's recommending adoption of a European-style moral rights law on free speech grounds. “Moral rights sound great but I’m worried” that a strong moral rights law has the potential to negatively affect First Amendment rights, Levy said. A strong moral rights law would also result in more litigation and an associated rise in entities “having to spend money to defend speech,” he said.
Castle, who supports the U.S. enacting a formal moral rights law, said he will discuss how changes in technology and the dissemination of content online affect moral rights law. The attachment of artists’ names to cover versions of their songs, particularly on YouTube, has become an area of controversy in recent years, Castle told us. “Historically, cover versions of songs have never included the name of the song’s original performing artist,” although it was somewhat common when a whole album of covers focused on the work of a single artist, Castle said: That hasn’t been the case for online audio and video cover performances, which frequently feature the name of a song’s original performing artist to generate interest in the cover.