Content, Tech Communities to Divide on Moral Rights in Copyright Office Comments

The copyright community’s content and tech camps appear to largely sit on opposite ends of the divide on moral rights, as they have on a range of other policy issues up for consideration at the CO and in the House Judiciary Committee’s copyright law review. Content-side stakeholders believe the CO should recommend at least a change in how U.S. law protects the right of attribution, though only some plan to file comments. Getty Images General Counsel Yoko Miyashita and music industry attorney Chris Castle said they would sit out at least the initial comment cycle because both talked about their views on the U.S.’ interpretation of moral rights during a 2016 joint CO-George Mason University School of Law Center for the Protection of Intellectual Property symposium that presaged the study (see 1604150074 and 1604180069). The law school posted a transcript.

Castle and Miyashita feel strongest about the need for more emphasis in U.S. law on protecting the right of attribution. That right is particularly important to photographers, Miyashita told us. Castle said he believes the federal government could enshrine the attribution right in its rules for compulsory mechanical licenses. “It seems to me you don’t have to go all the way” toward enacting a moral rights law consistent with those enforced in Europe to require “credit for artists,” he said.

The Columbia Law School Kernochan Center for Law, Media & the Arts’ comments are likely to be generally pro-moral rights, with a particular emphasis on the need for improved protections for the attribution right, said Executive Director June Besek. It’s “hard to muster a convincing argument to oppose” protections for the attribution right, though it’s likely many parties will push to maintain the U.S.’ status quo interpretation, she said. The U.S. has believed since its implementation of Berne that 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).

The Association of American Publishers is among the copyright veterans from the late 1980s debate over U.S. implementation of Berne that believes the existing legal interpretation of moral rights remains effective now, said Vice President-Legal and Governmental Affairs Allan Adler. AAP’s comments “really won’t surprise people” who have followed the debate since the group will restate the positions it took in the late 80s, Adler said. AAP examined the developments that the CO cited as potentially warranting reconsideration of U.S moral rights implementation and doesn’t believe “any of them have changed the situation” to an extent that legislation is required, he said. AAP plans to note instances in which other countries’ moves to create moral rights laws to implement Berne would diverge from fundamental U.S. copyright norms, Adler said.

Tech officials said they’ll urge the CO not to recommend any moral rights legislation in part because of concerns that such laws would harm the U.S.’ interpretation of freedom of speech and other constitutional rights. The Electronic Frontier Foundation will emphasize the potential freedom of speech harms posed by “speculative new moral rights protections,” said Senior Staff Attorney Mitch Stoltz. EFF is concerned about the CO’s mention of the Supreme Court’s 2003 ruling in Dastar Corp. v. Twentieth Century Fox, which rejected claims that the Lanham Act required attribution of uncopyrighted materials, Stoltz said. An attempt to overturn Dastar via legislation could open the door to a “stealth” copyright term extension that would let rightsholders begin seeking trademark claims related to 1920s-era content that will begin to lapse out of copyright beginning in 2019, Stoltz said.

The Computer & Communications Industry Association plans to emphasize perceived strength of existing moral rights protections in Lanham, Visual Artists Rights Act and other statutes, said Vice President-Law and Policy Matthew Schruers. There's a “strong” statutory protection against removing attribution and rights management information from content metadata, he said. Moral rights legal protections in Europe are a “distinctly continental theory of IP that is not really in sync” with the economics-based focus of U.S. copyright protections, Schruers said.

Castle, Stoltz and others don’t expect the study to make legislative recommendations. “I think it’s an issue that’s important to a small segment of copyright scholars and CO folks, but it’s not of great concern to many Americans,” Stoltz said: “It’s almost an academic issue” that the CO will seek to build a record on. He also pointed to House Judiciary’s near-cursory treatment of moral rights issues during its copyright law review as evidence of a lack of appetite for legislation on those issues. The study will “add to the legislative history on moral rights” if Congress ever reaches a point when it’s willing to pursue legislation, but “I don’t think that’s going to go anywhere” for now, Castle said.

Some content-side interests will closely follow initial comments from the sidelines to gauge the extent to which “there is a desire to bring in laws related to the right of integrity as opposed to changing laws on the right to attribution,” said a copyright lobbyist. There’s a general perception that more stakeholders will be in favor of some shift on the right of attribution than will favor changes based on the right of integrity because integrity right protections can be viewed as “examples of prior restraint,” the lobbyist said. “There may be more of a general sense” change is needed on attribution right protections but otherwise Congress “shouldn’t play with” existing legal interpretation because that could “add confusion,” the lobbyist said.