Many Stakeholders Support Government Action on Moral Rights, at CO Event
Most who spoke at a Copyright Office symposium on moral rights were supportive of CO or congressional action to address those rights in U.S. law, though several said U.S. recognition of moral rights would be different from Europe's approach because of free speech guarantees. The joint CO-George Mason University School of Law Center for the Protection of Intellectual Property event was meant to delve into moral rights issues ahead of a more formal CO examination of those issues (see 1603150067 and 1604150074). A creator's moral rights 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.
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Columbia University professor Jane Ginsburg said Congress needs to pass legislation on attribution rights to bring the U.S. into alignment with other Berne Convention signatory nations. She encouraged the federal government to extend moral rights by reinterpreting existing statutes in the absence of momentum for a new bill. Federal courts should take attribution into account in fair use cases and the CO should improve the functioning of Digital Millennium Copyright Act Section 1202, which protects the integrity of copyright management information (CMI) data, Ginsburg said. The CO should also consider facilitating creation of best practices on attribution rights, she said. Ideal attribution rights legislation would give those rights the same duration as economic copyright rights, Ginsburg said. Such legislation would also prohibit false attribution, she said.
Content Creators Coalition President Melvin Gibbs said more concrete U.S. recognition of moral rights is needed to provide appropriate recognition of the contributions of individual creators, given the rampant use of content aggregation. “For [artists], attribution is my currency,” Gibbs said. Legal experts traditionally view moral rights as entirely separate from the economic rights that guide U.S. copyright law, but attribution “is really an economic issue,” such as when people download a song that misidentifies the performing artist and then go to the wrong performer's concert as a result, said David Lowery, a songwriter and University of Georgia music business lecturer. Persistent identifiers in CMI data will ultimately encourage the development of licensing models that will better work with developing technology, said Cowan DeBaets lawyer Nancy Wolff. Much existing software strips out CMI data to decrease the size of files for online distribution, she said.
Some supporters of moral rights said existing industry practices may guarantee the rights for different sectors. Film studios are obligated via collective bargaining with the Writers Guild of America, the Screen Actors Guild-American Federation of Television and Radio Artists and other entertainment unions to follow specific rules on listing credits or face substantial financial penalties, said Paramount Pictures Executive Vice President-IP Scott Martin. “Those are levels of protection that you'll never get with a statute.” The Directors Guild of America agrees collective bargaining resulted in “facsimiles” of the right to attribution, the right of integrity and other moral rights, but that “doesn't mean that [the DGA] feels those rights are complete,” said Thorsen French lobbyist Alec French for DGA.
Collective bargaining doesn't protect moral rights against violations by third parties, French said. Featured recording artists don't engage in collective bargaining but are able to seek moral rights guarantees during contract negotiations, said music industry attorney Chris Castle. Authors traditionally relied on existing copyright statutes to exercise moral rights, and the Authors Guild is now pushing for its own form of collective bargaining to guarantee those rights because digitization has eroded the role of traditional copyright statutes, said President Roxana Robinson.
Martin cautioned against pushing for Congress to enact moral rights legislation but said he supports the idea of working moral rights into courts' interpretation of the fair use doctrine. Legislation presents the potential of enacting a problematic “one-size-fits-all” solution that won't satisfy all stakeholders, Martin said. Public Citizen lawyer Paul Levy also questioned whether it's wise to seek moral rights legislation, suggesting it wouldn't be in the public interest.