2.1 Rights and reward
The right of
identification is critical to authors’ livelihoods,
especially in the early stages of their careers. Equally,
the right of integrity has a direct economic impact. To put
it negatively: a distributed work which is not an accurate
reflection of an author’s skill discourages learned people
from composing - or at least from getting an advance for -
future works. For example, those film directors who do not
retain ‘final cut’ control over their work - which is most -
must have the right not to be identified as the author of a
re-edited film which does not represent their skill and
creativity.
2.2.
Responsibility and authenticity
With the right to
identification as author of a work comes personal
responsibility for its content. Electronic publication
raises the question for scholars: ‘how do we know this work
is what it says it is?’ The standard technical solution to
this is to create standards for ‘digital signature’ of works
- for example the World-Wide Web Consortium’s DSig project.
(Chu et al 1997) A ‘digital signature’ uses the mathematics
of encryption to generate an assertion that a particular
author created a document in a particular form; alteration
of the document provably invalidates the assertion.
Cryptography has, of
course, nothing to say about the validity of the original
assertion. The rights of identification and of integrity
together provide a satisfactory legal framework for such
assertions, based in existing international law: false
assertions are subject at least to civil action by the
actual author. This alone is sufficient reason to argue for
proper implementation of these moral rights in all
jurisdictions. They arguably operate independently of
statutory recognition of digital signatures, since these are
self-evidently assertions of authorship. (Such statutory
recognition will, however, be necessary in many
jurisdictions to deal with documents, such as payment
mandates, which have no literary or artistic content.)
Reporters and
documentary makers working in all media have particular
concerns. While editing is essential to the production of
high-quality reportage, if this materially distorts the
published report - whether to add ‘spin’ or through
ignorance on the part of an over-stretched sub-editor - the
results can be life-threatening. Alan Pierce, for example,
reported from Afghanistan for the BBC World Service until he
was severely beaten by guerrillas - as a direct result, he
believes, of the transmission of inaccurately translated
reports. (Pierce 1998) ‘It’s too much to say that the
Persian-language service supports the former government and
the Pushtu service supports the Taliban. But when Kabul
fell the Persian report inserted a line in my copy saying
“there’s no way that the Taliban can capture the capital”.
On another occasion there had been an overnight assault.
In the morning Alan had filed a report saying all was
quiet, and then another reporting that the attack had
re-started. ‘At 5pm we’re listening to the broadcast and my
interpreter is screaming that they’re running the first,
‘all quiet’ report while the shells are slamming into the
streets around us.’ The guerrillas, not being familiar with
the intricacies of radio news production, understandably saw
such events as biased reporting, not by the BBC collectively
but by Alan as an individual.
Under UK law there is
no moral right of integrity in work produced for the purpose
of reporting current events. (Section 3.5). Waving a writ
against one’s employer at a bunch of angry Afghani
guerrillas - or Los Angeles drug dealers or Indonesian
security police - may not be immediately palliative. The
existence of such a right, however, would serve to
discourage such distortions.
The authenticity of
documents is a matter for wider public policy concern.
Technology currently permits, for example, the rapid
manipulation of still photographs so that the resulting
illustration could be accepted by many readers as an actual
representation of reality. Combined with the advent of
digital cameras - which at present have no clearly defined
‘original’ in the sense that a photographic negative is
clearly original - this raises serious questions over the
remaining credibility of news photography with the public;
which in turn throws into question the notion that democracy
is founded on citizens voting according to reliable
information supplied by independent sources. (NUJ 1996) It
also casts a deep shadow over the evidential value of
photographs in court proceedings.
Already, real-time
manipulation of moving pictures is being proposed in the
context of inserting home-language (or non-tobacco)
advertising into video from foreign football stadia. The
much-vaunted Daily Me personalised multimedia
newspaper proposed by (among others) the MIT Media Lab
(Bender 1994) opens up both exciting possibilities for
personalised filters to combat information overload and
alarming possibilities for manipulation of content.
(NUJ1995a)
To dramatise the
issue: a photographer who has strong moral rights can stand
up in court and affirm that ‘this is what was in front of
the lens when I pressed the button’. A photographer who has
strong moral rights and strong morals can and will sue a
publisher or producer who distributes a manipulated
distortion of her picture.
In all cases where a
work is produced by an individual, a strong and enforceable
moral right of integrity is a simple public guarantee of
such personal responsibility for the content. The right of
integrity generally concerns only changes which damage an
author’s standing or reputation - so in the context of news
reporting it does not have any bearing on copy-editing for
length, style and clarity, nor on cropping of a photograph
which does not affect its ‘reading’. In the collaborative
arts the case is more subtle, and hinges on the definition
of ‘a work’ - see Section 3.2 below.
The January 1998 UK
government Green Paper on Crown Copyright (Cm 3819 1998)
makes the connection between moral rights and integrity of a
work clear, though without mentioning the concept
explicitly. In discussing whether UK government documents
should be made Public Domain, as US government documents
are, it notes (para 2.8):
Crown copyright
reflects those issues of integrity, authority and accuracy
where the stamp of official authorship is key to that
information being recognised as being authoritative.
The clear implication,
in the context of forthcoming Freedom of Information
legislative proposals, is that this need could be met by Her
Majesty’s Government retaining a form of copyright while
issuing a general public licence to make copies of certain
categories of document. A more radical proposal, not
proposed in the Green Paper, would be to extend moral rights
to the actual authors. Paying damages to Her Majesty’s
Government for the damage to its reputation caused by an
inaccurate representation of a document is one thing; paying
additional damages to an actual civil servant might well be
yet more of a deterrent.
2.3 Diversity
The rôle of moral
rights in encouraging a diversity of news reporting and
cultural expression is indirect, but clear.
The existence of moral
rights encourages the perception that works are created by
real persons, by breathing individuals (collaborating to
different degrees of intensity, to be sure). By contrast,
the position in the UK and US where authors have no moral
rights in works created in the course of employment (Section
3) - and where the economic rights in these belong outright
to the employer - encourages a perception that cultural
products (including news reporting) are commodities.
One effect of the lack
of moral rights for news reporting in the UK (Section 3) is
that a newspaper reporter can turn in a reasonably balanced
story in the sure and certain knowledge that it will be
re-written on the sub-editors’ desk to fit the perceived
‘line’ of the proprietor or (allegedly) the marketing
department. Fatalism and abnegation of personal
responsibility are encouraged at every stage.
In the context of the
new media, the Authors’ Rights regime in which moral rights
are central offers the most hope of creating the economic
conditions in which diversity can flourish. The effect of
strong moral rights considered as separate from economic
rights is symbolic - but the point is that moral rights are
the starting point in the Authors’ Rights regime and
economic rights flow from them.
3. The Legal Frameworks
International law on
authors’ rights and copyright is, as is well known,
enshrined in the Berne Convention. (WIPO 1979) Moral rights
are probably the one area in which national legislation
shows greatest divergence.
3.1 Moral Rights
under Berne
The relevant section
of the Berne Convention is clear and brief enough to quote
in full:
Article 6bis: Moral
Rights
(1)
To claim authorship; to object to certain
modifications and other derogatory actions
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 honor or reputation.
(2)
After the author’s death
The rights granted to the author
in accordance with the preceding paragraph shall, after his
death, be maintained, at least until the expiry of the
economic rights, and shall be exercisable by the persons or
institutions authorized by the legislation of the country
where protection is claimed. However, those countries whose
legislation, at the moment of their ratification of or
accession to this Act, does not provide for the protection
after the death of the author of all the rights set out in
the preceding paragraph may provide that some of these
rights may, after his death, cease to be maintained.
(3)
Means of redress
The means of redress for
safeguarding the rights granted by this Article shall be
governed by the legislation of the country where protection
is claimed.
It seems clear that
this is intended to introduce only two savings or grounds
for exception: that certain countries may limit the rights
of identification and integrity to the lifetime of the
author; and that redress is a matter for national treatment.
One significant further exception to authors’ rights in
general is provided for by Article 1(8):
Article 2: Protected
Works
(8) News
The protection of this Convention
shall not apply to news of the day or to miscellaneous facts
having the character of mere items of press information.
It seems clear that
this is intended to refer to the content of ‘mere items of
press information’ and not the protected expression.
3.2
Definition of ‘a work’ and ‘the author’
The Berne Convention
defines ‘a work’ thus:
Article 2: Protected
Works
(1) “Literary
and artistic works”
The expression ‘literary and
artistic works’ shall include every production in the
literary, scientific and artistic domain, whatever may be
the mode or form of its expression, such as books, pamphlets
and other writings; lectures, addresses, sermons and other
works of the same nature; dramatic or dramatico-musical
works; choreographic works and entertainments in dumb show;
musical compositions with or without words; cinematographic
works to which are assimilated works expressed by a process
analogous to cinematography; works of drawing, painting,
architecture, sculpture, engraving and lithography;
photographic works to which are assimilated works expressed
by a process analogous to photography; works of applied art;
illustrations, maps, plans, sketches and three-dimensional
works relative to geography, topography, architecture or
science.
(3) Derivative works
Translations, adaptations,
arrangements of music and other alterations of a literary or
artistic work shall be protected as original works without
prejudice to the copyright in the original work.
The ‘author’ is not
explicitly defined. However, explicit provision is made for
collaborative works in the form of cinematographic works in
Article 14bis (2) and (3):
Article 14bis: Special
Provisions Concerning Cinematographic Works
(2) Ownership; limitation of certain rights
of certain contributors
(a) Ownership of
copyright in a cinematographic work shall be a matter for
legislation in the country where protection is claimed.
(b) However, in the
countries of the Union which, by legislation, include among
the owners of copyright in a cinematographic work authors
who have brought contributions to the making of the work,
such authors, if they have undertaken to bring such
contributions, may not, in the absence of any contrary or
special stipulation, object to the reproduction,
distribution, public performance, communication to the
public by wire, broadcasting or any other communication to
the public, or to the subtitling or dubbing of texts, of the
work.
[(c) and (d) define
‘stipulation’]
(3) Certain other contributors
Unless the national legislation
provides to the contrary, the provisions of paragraph (2)(b)
above shall not be applicable to authors of scenarios,
dialogues and musical works created for the making of the
cinematographic work, or to the principal director thereof.
However, those countries of the Union whose legislation
does not contain rules providing for the application of the
said paragraph (2)(b) to such director shall notify the
Director General by means of a written declaration, which
will be immediately communicated by him to all the other
countries of the Union.
A clear distinction is
thus drawn between (to use the language perhaps somewhat
loosely) works intended for communication to the public, and
‘intermediate’ works such as scenarios, storyboards and
scripts. It would seem reasonable to treat new forms of
multimedia work as ‘cinematographic’ for these purposes.
3.3
Mainstream European legislation
With the exception of
the UK and the Republic of Ireland, all European Union
member states have authors’ rights legislation, as
distinguished from copyright in the Introduction. Moral
rights are thus central. They are inalienable - that is to
say, they cannot be transferred or waived, whatever the
disposition of rights to exploitation, distribution, etc.
Dutch legislation is an exception to this: an author may
contract to waive the rights
to be mentioned by
name, to restrain publication of the work under a name other
than his own, and reasonably to restrain modifications of
his work (Jehoram 1993:185)
Authors in the
Netherlands may not, however, waive the right to object to
distortions, mutilations or other modifications of the work
prejudicial to their honour, reputation or value.
Exercise of the right
of integrity is everywhere subject to a test of
reasonableness. This may be expressed in statute, as in for
example in the Netherlands. (Jehoram 1993:184) It may be
held, as in Belgium, that though national law grants an
absolute right of integrity, ‘an author, in making a
contract, gives tacit permission to make those modifications
which are inherent to the mode of exploitation’. [4] (Vanhees
1993:171) Reasonableness is everywhere applied as a
criterion by the courts, as in a Danish case in which a
sculptor’s objection to use of a photograph of a work to
illustrate a magazine article on sexual problems was denied.
(UFR 1969 p. 544, cited in Koktvedgaard 1993:118)
Naturally, such
interpretation is a part of national tradition: a court in
the Netherlands in 1988 rejected Samuel Beckett’s motion to
prevent an all-female production of Waiting for Godot
(Arnolds 1993) whereas such a production is forbidden in
France. (Brut de Béton 1992) This situation does, however,
point to a bizarre form of restraint of intra-Community
trade in Europe: either certain productions of Beckett plays
may only be ‘exported’, or authors may wish to refuse all
exports to countries with weaker moral rights régimes lest
the integrity of the work be compromised.
One of the more
notorious cases, of course, was Huston’s injunction against
a colorized version of Asphalt Jungle. (Huston 1991)
Those cases involving cinematographic works which should
probably worry commercial interests more, however, involve
the cutting of films to accommodate television schedules and
commercials. For example, the Société Métropole Télévision
M6 in 1990 paid damages to Claude Sautet after cutting his
film Les choses de la vie from 80 minutes to 64. (Sautet
1990)
3.4 Droits moraux beyond
identification and integrity
For completeness, it
should be noted that further moral rights are enshrined in
certain countries’ Civil Codes:
The right to withdraw
a work (le droit de repentir): this applies at least
in France, Germany, Italy and Spain, and ‘probably’ in
Belgium. (Dietz 1993:59) Dietz notes that:
There is... a certain
amount of scepticism about the theoretical and practical
foundation of this law... It cannot be doubted, however,
that there are extreme situations where the author’s social
or political or even physical existence is at stake, in such
a measure that society should respect and allow his decision
to withdraw former works from circulation.
One would not expect
proposals to introduce such a right into UK law to gain wide
support within the academic and library communities. It is
not at all clear that the droit de repentir is
enforceable for works which are accessible through
international data networks.
The ‘right of
divulgation’ (le droit de divulgation): Dietz
(1993:58) notes that this:
reserves to the author
the fundamental decision whether at all and when and how to
release his work from the private sphere and to expose it to
the public... According, in particular, to French theory,
this decision not only is an absolutely personal and
discretionary act of the author but it also determines the
moment when the work enters the financial or commercial
sphere...
Dietz observes that
this right is covered in other jurisdictions by the author’s
exclusive right to licence exploitation, copying,
distribution and so forth. Its naming as a separate right
would be a question of nit-picking semantics, were it not
for the possibility that (only) in jurisdictions with a
droit de divulgation authors working under contract of
employment have absolute discretion over when the work is
ready for release.
Neither of these
doctrines is explicitly reflected in Berne and (at risk of
raising objections from those, especially French,
authorities who are passionate about them) it should be
noted that the author has never encountered any suggestion
that they should be incorporated in UK law.
3.5 Moral rights in the UK
The Copyright
Designs and Patents Act 1988 grants authors the right of
identification (s. 77); the right applies only where it has
been asserted in writing in the work or in an assignment or
licence covering the work. (s. 78)
The Act then removes
the right of identification (s. 79) from any:
-
computer program;
-
design of a
typeface;
-
computer-generated
work;
-
work created in
the course of employment of the author or director;
-
work subject to
Crown or Parliamentary copyright;
-
work made for the
purpose of reporting current events;
-
work published in
a newspaper, magazine or similar periodical;
-
work published in
an encyclopaedia, dictionary, yearbook or other
collective work of reference.
An author has,
however, an additional right (s. 84):
·
not to
have a literary, dramatic, musical or artistic work (or
film) falsely attributed to him as author (or director); and
·
not to
have altered works dealt in or represented as originals.
This right is not
subject to the exceptions listed above. The right of
integrity is expressed (s. 80) as the author’s right ‘not to
have his work subjected to derogatory treatment’. The Act
then removes this right (s. 81) from any:
-
work
made for the purpose of reporting current events;
-
work
published in a newspaper, magazine or similar
periodical;
-
work published in
an encyclopaedia, dictionary, yearbook or other
collective work of reference.
-
and further (s.
82) from work created in the course of employment, and
from work subject to Crown or Parliamentary copyright,
unless the author is or has been identified.
As if that weren’t
enough exceptions, Section 87 provides that
(2) Any [moral right]
may be waived by instrument in writing signed by the person
giving up the right.
(3) A waiver -
(a) may relate to a
specific work, to works of a specified description or to
works generally, and may relate to existing or future works,
and
(b) may be conditional
or unconditional and may be expressed to be subject to
revocation...
It is understood (from
private communication) that the drafters viewed the waiver
provisions in Section 87 as a technical saving to give
effect to the principle that UK law does not admit
inalienable rights. It is not and should not have been
surprising, however, that this provision was taken up by
publishers: see Section 3.5.1 below.
In mainstream Civil
Code authors’ rights jurisdictions, the concept that moral
rights can be waived verges on the nonsensical. Barrister
Alistair Kelman puts it thus: ‘Under French law, what you
create is part of your soul.’ (Kelman 1995) Moral rights
are not a bolt-on addition to the property right which is
copyright, but are an integral part of inalienable authors’
rights which pertain to real persons, to individual humans.
As noted above, the Netherlands is an exception to this
rule.
As far as the author
is aware, such moral rights as are granted may be waived in
any of the Common Law jurisdictions. This is certainly the
case for the highly restricted Visual Artists’ Right in the
USA (see Section 3.6 below) and for the more general moral
right in Canada (Knopf 1998).
In the course of
extensive and intensive enquiries over four years the author
has failed to discover any UK case-law on moral rights. In
the summer of 1997 the eminent anti-war photographer Philip
Jones Griffiths reached a ‘very satisfactory’ settlement
with agency Saatchi, which had faked up one of his pictures
for use in an army recruitment advert. He had, obviously,
claimed for defamation. Saatchi also settled a claim for
‘derogatory treatment’ of a photograph by Bruno Barbey,
which they used in the fake. (Holderness 1997c)
3.5.1 UK periodical publishers and
moral rights
The publisher of
computer magazines and journals VNU in December 1994
demanded that each contributor ‘irrevocably and
unconditionally waives all moral rights’ in their work. (VNU
1994) EMAP Business Publishing in November 1995 sent its
freelance contributors a contract, (EMAP 1995) demanding
inter alia that they: ‘waive the benefit of any moral
rights in such work and agree that you may edit, alter and
adapt it.’ In each case there was an implicit threat that
contributors would find that they were ex-contributors if
they did not sign; in EMAP’s case the draft contract leaked
to the National Union of Journalists concluded ‘PAYMENT WILL
ONLY BE MADE ON RECEIPT OF THIS SIGNED FORM,’ suggesting an
after-the-fact imposition of new conditions on works already
commissioned.
Wherever the
possibility of waiving moral rights exists, such pressure
will always be applied. While individual authors depend on
economically powerful publishers and producers, the
resulting contracts will always be struck between unequal
partners.
It is notable that the
examples above are redundant within a solely UK context:
UK-based authors, as shown, have no moral rights in works
destined for publication in magazines. It may be that the
publishers are attempting to ward off the consequences of
possible future harmonisation of UK law towards the European
standard. This view is supported by a covering note for the
proposed contract supplied by EMAP’s lawyers to its
management: ‘English copyright law does not acknowledge the
moral rights of contributors to periodicals; however,
elsewhere moral rights can be an issue, and the waiver seeks
to eliminate any potential problem.’ (EMAP 1995)
In November 1995 the
Periodical Publishers’ Association issued a position paper
on copyright, which included the assertion that ‘moral
rights must be negotiable’. (Locks 1995) Publication of
this paper followed a spate of contracts ‘offered’ to
freelance contributors by, among others, EMAP, VNU, IPC,
Dennis, the Telegraph and News International. All contained
long, lawyerly shopping-lists of terms concerning economic
rights, and in the case of EMAP’s Metro division the list
includes the notorious ‘assign all rights... throughout the
Universe...’ in all media, including those yet to be
invented.
3.5.2 The UK and Berne
‘The exceptions and
qualifications to moral rights... were attempts by the UK
government to modify, some would say to emasculate, moral
rights in the light of business reality.’ (Dworkin 1993:105)
Dworkin quotes others who are yet more forthright: ‘Britain
lost sight of its goal in the legislative process, and the
result was the creation of rights that are well below the
Berne Convention standard.’ (McCartney 1991)
3.6 Moral rights in the USA
The only expression of
moral rights in US legislation is contained in the Visual
Artists Rights Act 1990, which introduced a section to
the Copyright Act. (Copyright Act [USA] s. 106A) This
grants authors of ‘works of visual art’ the rights to
identification, to object to false attribution, to prevent
distortion or mutilation prejudicial to the artist’s
reputation, and to prevent destruction of ‘a work of
recognised stature’. A ‘work of visual art’ is defined as a
painting, drawing, print, sculpture or a photograph made
only for exhibition, produced in a signed and numbered
edition of 200 copies or fewer. ‘Works made for hire’ are
excluded, and in US law this means that a commissioner need
only state in a contract that it concerns ‘work made for
hire’ to avoid invocation of the rights. The rights may be
waived in writing.
Dworkin asks why
Congress passed this law when it had earlier insisted that
no steps were necessary for compliance with Berne. (Dworkin
1993:102) He reports Jane Ginsburg as commenting that VARA
may have been passed to placate those who thought that the
USA had not honoured its Berne commitments. The fact that
the USA was at the time on the brink of trade war with China
over allegations of mass violation of software copyrights
may well have been significant. A more grudgingly
tokenistic implementation of moral rights is difficult to
imagine.
Dworkin notes that the
US movie industry would have strongly opposed wide-ranging
moral rights in the US; in the context of the ‘director’s
nightmare’ mentioned in the Introduction this is not
surprising. Those rights which authors in the US movie
business do enjoy, they hold by virtue of collective
bargaining. Directors’ contracts thus frequently do give
them a close approximation to a ‘right of integrity’, and on
the other hand in recent years marketing departments have
made much of ‘authorial integrity’ by releasing ‘Directors’
Cut’ versions of movies which were - at the behest of those
same marketing departments - first released in a form about
which the director was not ecstatic.
Directors in the UK
are in a much more difficult position. UK law defines the
‘author’ of a cinematographic or musical work as:
the person by whom the
arrangements necessary for the making of the recording or
film are undertaken (Copyright Designs and Patents Act
[UK] 1988 s. 9(2)a)
More significantly,
they have much less organised influence than their US
colleagues, and at least some believe that the rafts of
trade union legislation passed between 1979 and 1997 throw
into doubt the legality of collective bargaining over such
matters. (Crone 1997)
3.7 Moral rights in Japan
Though Japanese works
clearly do not have the world market presence of US works,
the extensive stakes held in the US cinematographic
corporations by Japanese companies makes its law globally
relevant. Japanese law appears to include a right of
divulgation in its paragraph 18(1). (Doi 1993:474) It has a
right of identification (including the explicit right to use
a nom de plume) and a right of integrity (paragraphs 19(1)
and 20(1)). The ‘author’s moral right is exclusively
personal to him and is inalienable’ (op cit).
3.8 The TRIPS Agreement
The preamble to the
World Trade Organization (WTO) Agreement on Trade-Related
Aspects of Intellectual Property Rights, including trade in
counterfeit goods (the ‘TRIPS Agreement’) concludes:
Desiring
to establish a mutually supportive relationship between the
WTO and the World Intellectual Property Organization (WIPO)
as well as other relevant international organisations; (WTO
1994)
The cynical might well
ask: ‘If this were true, why would it need to be said?’
Article 9(1) of TRIPS
states:
1. Relation to Berne
Convention
Members shall comply with Articles
1-21 and the Appendix of the Berne Convention (1971).
However, Members shall not have rights or obligations under
this Agreement in respect of the rights conferred under
Article 6bis of that Convention or of the rights derived
therefrom. (WTO 1994)
In other words, the
instrument by which the USA seeks to protect its
considerable overseas trade in intellectual property
excludes in terms moral rights. This came about
specifically at the behest of the US delegation:
The United States has
consistently protested the inclusion of moral rights in
TRIPS as well as other international conventions, including
the European Copyright Directive.. The drafters of TRIPS
agreed to U.S. desires to exclude moral rights from the
minimum protections required. (Doyle S J 1994)
However, Article 16,
dealing with trademarks, includes the following:
2.
Well Known Marks
Article 6bis of the Paris
Convention (1967) shall apply, mutatis mutandis, to
services. In determining whether a trademark is well-known,
account shall be taken of the knowledge of the trademark in
the relevant sector of the public, including knowledge in
that Member obtained as a result of the promotion of the
trademark. (WTO 1994)
Under TRIPS,
therefore, Ronald McDonald® has moral rights and Mohandas K
‘Mahatma’ Gandhi does not.
Nevertheless, it
remains the case that the Berne Convention expresses
international law on intellectual property.
4. Two possible multimedia futures
The respective effects
of a strengthening or weakening of moral rights can be
illustrated through outlines of two possible directions for
the development of the new media. These can be nothing more
than outlines: Holderness’s First Law of Forecasting states
that ‘Whatever you predict, something more interesting than
that will happen.’ And of course, there are very many more
differences between these possible futures and between the
conditions which promote them than can be discussed here.
4.1 The many-to-many world
The invention of
movable type produced a revolution in human communications.
One author’s work could thenceforth be distributed in
identical, fixed copies to an arbitrarily large segment of
the literate population. Printing can be characterised as a
‘one-to-many’ technology for dissemination of fixed works;
and contrasted with the previous ‘technologies’ of the
unfixed, one-to-many communication of the public orator and
the fixed, one-to-very-few communication of the manuscript.
Indeed, some would hold that this led to a change in what
it is to be human. Printing eventually gave large numbers
of people access to identical, permanent, shared ‘memory
extensions’. (e.g. Stewart & Cohen 1997)
The World-Wide Web, as
originally envisaged by its founders Tim Berners-Lee and
Robert Caillau, was something new in human culture: a
many-to-many medium. The first Web browser program, which
Berners-Lee hacked together in three days of 1989 on a
NextCube computer, placed the authoring of pages on a par
with their reading. (Caillau 1996)
Those parts of the Web
which are accessible without charge or formality constitute
the largest single information resource ever assembled: by
December 1997 the AltaVista ‘search engine’ had indexed the
full text of 88 million Web pages. The comparison to
Borges’s ‘The Library of Babel’, which contains all possible
texts, (Borges 1941) is irresistible. This total notably
excludes, however, newspaper articles; when these are made
available on the Web they are almost invariably ‘hidden’
behind a subscription mechanism, even where no charges are
currently levied. (Holderness 1997a)
If, however, Web
publications were made available on a ‘pay-per-view’ basis,
then the entire Web (and at least the textual portions of
future multimedia forms) would be openly accessible. The
barriers to becoming a publisher would be lower than at any
previous time. Works involving significant investment would
of course continue to appear; but a new sector involving a
direct financial transaction between author and
reader/viewer could flourish alongside it. (Holderness
1997a) (Holderness 1997b) In this scenario, strong moral
rights of the individual author serve as the reader/viewer’s
guarantee of the authenticity of the work, filling the
traditional rôle of the publisher/producer in this respect.
The predicted outcome
for the culture at large is an unprecedented flowering of
diversity of political and artistic expression.
4.2 Remaking the Web as
broadcast
Quite different
multimedia technologies are, however, under construction:
the work of DAVIC, the Digital Audio-Visual Industries
Council - a consortium with more than 200 members, ranging
from the BBC to Nokia to Microsoft to Lucent (ex Bell Labs)
to Nynex, BT and Pacific Bell - serves as an exemplar. DAVIC’s
primary activity is to generate a set of standards for
delivery of multimedia (largely, it seems, to the home).
The current DAVIC
proposal for access control and content management operates
on the ‘cable TV’ model. The proposed standard assumes that
all transactions take place between a central Service
Provider and a consumer: the consumer requests a
‘programme’, the Service Provider runs a credit check and
takes the money if it chooses. (DAVIC 1997) The moral
rights model, like the financial model implicit in the
current DAVIC proposal, appears to be that works are owned
outright and controlled by broadcaster-publishers.
Mike Feintuck
comments, in the context of regulation of broadcast media,
that ‘arguably, an obvious potential for domination of this
brave new world by unaccountable and unashamedly commercial
international conglomerates has developed.’ (Feintuck 1997)
This could equally be applied to the ownership and control
of ‘content’.
The technical issues
of network design; those over ‘micro-billing’ and the
battles with government over the encryption technology
involved; and the race for ownership and control of the
‘set-top-box’; none of these should obscure the fundamental
point that a choice is to be made, with significant social
and policy implications. On the one hand is the realisation
of the potential for many-to-many media, in which moral
rights form a ready-made (but not universally applied) legal
framework for identification and integrity of the individual
works. On the other is, to put it bluntly, the spectre of
Bill Gates, Rupert Murdoch, and a handful of other
corporations owning significant parts of the culture
outright - and having their right to amend it as their
commercial interests dictate.
5. The need for
harmonisation
‘The Information
Society’ is given considerable prominence in the European
Union’s thinking (Bangemann 1994). Authors’ rights are
recognised as the key to a legal framework for electronic
commerce:
If the information
society is to develop successfully, the many new services
and products being created must be able to benefit fully
from the information superhighway. Their expansion must
take place in a regulatory framework which is coherent at
national, Community and international levels. There is no
doubt that laws will have to be adapted in order to respond
to the new and varied requirements which may appear, raising
unprecedented issues. One of these is the adaptation of the
legal environment for intellectual property. (EU 1995)
It would at first
sight appear that harmonisation of legislation across the EU
would be a priority. Indeed the Green Paper introduces its
section on moral rights thus:
In an interactive
environment such as that of the information society, where
it will be very easy to modify and adapt existing works, one
vital consideration will be the author’s moral rights,
including the right to object to any unauthorized
modification of is work and to claim the right of author’s
paternity. These rights are handled very differently in
different legal systems, and give rise to serious
controversy. (op. cit)
However, the situation
closely parallels that discussed by Gillian Doyle with
regard to concentration of ownership in more traditional
media:
[There is a] range of
conflicting opinions within Europe about what the aims and
the substance of a collective policy on media ownership
ought to be. Such conflicts partly reflect the fundamental
question of whether the European Commission has any right to
pursue policies aimed at safeguarding pluralism. (Doyle G
1997)
The Green Paper on
Copyright concluded that
at the present time
moral rights did not pose any real problems as far as the
Internal Market was concerned. (op. cit.)
Energetic
representations were made to the EU in response to the Green
Paper. For example, the National Union of Journalists
submitted that:
There are two reasons
why the preservation of moral rights is crucial.
First, because the
integrity and authenticity of an artist’s work is of
importance to society as a whole. The enduring value of a
piece of writing or a photograph or a design may not be
immediately recognised. Unless moral rights are preserved
there is a danger that the original work will be modified to
make it commercially ‘successful’. Very quickly the vigour
and variety of our culture will degenerate into what is
merely easy to sell.
The second reason why
we are emphatic and unequivocal in our support for the
preservation of moral rights is that we represent
journalists. The constant use and re-use of editorial
material, altered, modified or distorted to suit every
conceivable niche in the market, is not a happy prospect.
The citizen/consumer in our ‘information society’ must be
able to trust - to rely on - the authenticity of the images
and information which are being provided. That trust cannot
be located in an anonymous corporation - whether it be the
BBC or News International - but in the moral and ethical
standards of journalists themselves. Far from making it
easier to waive moral rights, we believe the European Union
should be extending and reinforcing the moral rights of
authors and all creative workers. (NUJ 1995b)
Nevertheless, the
recent Draft Directive on Copyright recommends no action on
moral rights, instead concluding that:
With respect to some
of the issues, market developments need to be further
studied before a policy decision on their followup can be
taken. This is in particular true with respect to the issue
of moral rights protection in the Information Society
context where an initiative for harmonization could be
prepared as soon as the need occurs. (EU 1997)
As one commentator
notes:
It is desirable to
harmonise the terms of protection if you can point out some
cases where the exploitation of works is hampered by
different terms of protection. (Kotvedgaard 1993:122)
In order to persuade
the Commission that harmonisation is both desirable and
within its remit, therefore, it seems that cases where the
lack of moral rights in the UK and/or Ireland has hampered
the free flow of goods and services may need to be found.
The open question is whether the Commission will accept the
general argument that, in the absence of moral rights in a
wide range of works in the UK and Eire, readers and viewers
are denied a guarantee of authenticity. The publishing and
film industries will certainly resist such a move; it may be
that a case will need to be argued through the courts.
The basis for such a
case certainly exists in principle; authors may or should be
unwilling for their works to be distributed in the UK where
arbitrary changes may be made. Bernard Tavernier, for
example, insists that his films be transmitted without
commercial breaks; (Crone 1997) his power to enforce this
stipulation in his home country is based on a human right,
but in the UK depends solely on economic clout.
Authors and
publisher/producers in the mainstream countries also have a
strong argument that the UK and Ireland at present
constitute an offshore moral-rights-free-zone, to their
economic detriment.
The objection that
inalienable rights are alien to British law is countered by
the incorporation of such a right with the implementation of
the EU Lending and Rental Directive. Publishers and
producers in the UK and Ireland will without doubt argue
that harmonisation will place them at a disadvantage
compared to their US-based competitors - if only from force
of habit of resisting authors’ rights and all regulation.
The long-term answer, of course, is for the US to comply
properly with the terms of the Berne Convention. This in
turn will be strongly resisted, as evinced by the exclusion
of moral rights from the TRIPS Agreements. (EU 1995)
The immediate answer
to such objections could be that the Unique Selling
Proposition of works authored in Europe can and should be
precisely that they are works with integrity, that they are
the works of individual humans exercising their rights and
creativity.
6. Conclusion
The needs of the
citizen and of society for trustworthy news and innovative
entertainment are best met by the direct relationship of the
citizen with individual human authors which is at the heart
of the Berne Convention. Such a relationship forms the
legal basis for a People’s Media - for the potential of the
technologies to be developed to maximise open and
trustworthy communication with and between citizens.
It is true that this
argument, coming from a journalist, is self-serving - but
only in that it defends the income and influence of the
individual journalist (and artist and performer) against the
US ‘work made for hire’ doctrine and against the treatment
of works as commodities in which authors have no rights.
The alternative to moral rights is a future in which all
news and entertainment - most of the public culture - is
under the outright ownership and legal control of the media
corporations.
If legislatures seize
the opportunity to strengthen and harmonise the appropriate
laws, the media corporations will adapt - with the
recuperative power which is the hallmark of capitalism - to
new roles as brokers and packagers. If they do not, the
media corporations will adapt the laws to re-make the new
media in their own old image.
References
Arnolds (1993) in
The moral right of the author, ALAI (Association
littéraire et artistique internationale); the case is Pres.
Rechtbank Haarlem 29 April 1988, AMI 1988 n No. 4/83
Bangemann M et al
(1994)Recommendations to the European Council: Europe and
the global information society (Brussels: CEC)
http://www.ccg.uc.pt/wise/english/rd/prog/general/report.html
Bécourt, Daniel (1996)
Révolution française et droit d’auteur: Pour un nouvel
universalisme at
http://www.argia.fr/lij/ArticleMai96-2.html.
Bender W (1994) ‘Read
all about it in the Daily You’ in Communicating Business
Winter 1994/95 (London: Forward Publishing) and at
http://nif.www.media.mit.edu/papers/forward.html
Borges JL (1941) ‘La
biblioteca de Babel’ in El jardín de senderos que se
bifurcan (Buenos Aires: Sur; translated as ‘The Library
of Babel’ in Ficciones, New York: Grove Press, 1962)
Brut de Béton
S/ Jérome Lindon (1992) 3ème
Chambre du Tribunal de Grande Instance de Paris a, 15
Octobre 1992, (RIDA No. 155 - Janvier 1993)
Caillau R (1996)
Presentation at World-Wide Web Consortium European launch,
Paris.
Chu Y et al (1997)
Chu, Yang-hua; DesAutels, Philip; LaMacchia, Brian; and Lipp,
Peter ‘DSig 1.0 Signature Labels’ public working draft at
http://www.w3.org/TR/PR-DSig-label.html
Cm 3819 (1998)Crown
Copyright in the Information Age, A consultation document on
access to public sector information (London: HMSO UK
Parliamentary Paper Cm 3819) and at
http://www.hmso.gov.uk/document/cfcont.htm
Copyright Act USA:106A
s. 106A: ‘Rights of certain authors to attribution and
integrity’ available at
http://www.law.cornell.edu/usc/17/106A.shtml
Crone J (1997)
Director John Crone; personal communication.
DAVIC (1997) DRAFT:
DAVIC 1.0 part 11, Usage Information Protocols
(Geneva: Digital Audio-Visual Industries Council) at
http://media.etri.re.kr/DAVIC/spec/spec10/part11/part11.html
Dietz A (1993:59)
‘Legal Principles of Moral Rights (Civil Law)’ in The
moral right of the author (Paris: ALAI / Association
littéraire et artistique internationale): 59
Doi T (1993) brief
report in The moral right of the author (Paris:
ALAI): 474
Doyle S J (1994)
‘GATT, TRIPS, and High Tech’ at
http://www.modl.com/corp/gatt.html
Doyle G (1997) ‘From
“Pluralism” to “Ownership”: Europe’s emergent policy on
Media Concentrations navigates the doldrums’ JILT 1997 (3)
at
http://elj.warwick.ac.uk/jilt/commsreg/97_3doyl/default.htm
Dworkin G (1993):105
‘Moral Rights and the Common Law countries’ in The moral
right of the author (Paris: ALAI): 105
Dworkin G (1993):102
ibid. p. 102 ff
EMAP (1995) Text faxed
anonymously to the National Union of Journalists.
EU (1997) Proposal
for a European Parliament and Council Directive on the
harmonization of certain aspects of copyright and related
rights in the Information Society (Brussels: European
Union paper COM(97) 628 final 97/0359 (COD)) available via
http://europa.eu.int/comm/dg15/en/intprop/intprop/1100.htm
EU (1995) Green Paper
Copyright and Related Rights in the Information Society;
available at
http://www.gn.apc.org/media/eugp.html
Feintuck M (1997)
‘Regulating the Media Revolution: In Search of the Public
Interest’ JILT 1997 (3) at
http:/elj.warwick.ac.uk/jilt/commsreg/97_3fein/default.htm
Fleming (1993) in
The moral right of the author (Paris: ALAI): 552
Holderness M (1995)
‘Creators are the Key to the Information Society’,
Telepathic Project CD-ROM and at
http://www.gn.apc.org/media/culture.html
Holderness M (1997a)
‘The Librarian of Babel: The key to the stacks’, Ariadne
issue 9 (Bath, UKOLN) at
http://www.ariadne.ac.uk/issue9/babel/
Holderness (1997b)
‘Superhighway robbery and how to stop it’, paper at City
University NetMedia 1997 and at
http://www.poptel.org.uk/nuj/mike/city-c.htm
Holderness M
(1997c)’This is a picture’ in Freelance newsletter
Sep/Oct 1997:3 (London: National Union of Journalists) and
at
http://www.gn.apc.org/media/9709mani.html
Huston (1991)
Huston C / Turner Entertainment et la CINQ, Cour de
Cassation à Paris 26 Mai 1991, RIDA No. 149 - p. 197
Jehoram H C (1993:185)
‘National Report on moral right in the Netherlands’ in
The moral right of the author (Paris: ALAI): 185
Kelman A (1995)
Speaking to a meeting of contributors to VNU magazines, 4
April 1995
Knopf H (1998) Howard
Knopf, Attorney, Ottawa, in message to
cni-copyright
mailing list, 24 January 1998
Koktvedgaard M
(1993):118 ‘Moral Rights Denmark’ (1993) in The moral
right of the author (Paris: ALAI): 118
(Le Chapelier 1791)
quoted in Bécourt D ‘Révolution française et droit d’auteur:
Pour un nouvel universalisme’ at
http://www.argia.fr/lij/ArticleMai96-2.html
Locks I (1995)
Chairman’s statement in Periodical Publishers’ Association
position paper on copyright.
McCartney S (1991)
‘Moral Rights under the United Kingdom’s Copyright, Designs
and Patents Act 1988’, Columbia VLA Journal of Law and
the Arts, volume 15, Winter 1991 (Columbia: Columbia)
quoted in (Dworkin 1993:105)
NUJ (1995a) Digital
Media Working Group Draft Report (London: National Union
of Journalists) at
http://www.gn.apc.org/media/dmwg.html
NUJ (1995b)
Response to the European Commission (Directorate General XV)
on the Green Paper: ‘Copyright and Related Rights in the
Information Society’ (London: National Union of
Journalists) at
http://www.gn.apc.org/media/nuj-eugp.html
NUJ (1996) ‘Marking
manipulated photographs’ (London: National Union of
Journalists) at
http://www.gn.apc.org/media/manip.html
Pierce A (1998)
Telephone interview January 1998
Ralph R D (1996)
Copyright and Fair Use: The American Geophysical Union vs.
Texaco Corporation at
http://www.netstrider.com/documents/copyright/
Sautet (1990) Tribunal
de Grande Instance de Paris, 14 Mars 1990, Revue de la
SACD No. 1 - 1er trimestre 1992, p. 59
Star Chamber (1586)
Quoted in John Shelton Lawrence and Bernard Timberg, Fair
Use and Free Inquiry, Copyright Law and the New Media
(Norwood, NJ: Ablex Publishing Corp., 1989), 4.
Stewart I & Cohen J
(1997) Figments of Reality (Cambridge: Cambridge
University Press)
Vanhees H (1993):171
‘Les droits moraux en Belgique’ in The moral right of the
author (Paris: ALAI): 171
VNU (1994) Quote
supplied to the National Union of Journalists in electronic
mail by a concerned contributor.
WIPO (1979) Berne
Convention for the Protection of Literary and Artistic
Works, Paris Act of July 24, 1971, as amended on September
28, 1979, (Geneva: WIPO Publication: No. 287(E)) available
at
http://www.wipo.org/eng/iplex/wo_ber0_.htm
WTO (1994)
Agreement on Trade-Related Aspects of Intellectual Property
Rights, including trade in counterfeit goods (Geneva:
World Trade Organization) available at
http://www.wto.org/wto/intellec/1-ipcon.htm
Notes
[1] Author’s translation; original reads
“la plus sacrée et la
plus légitime, la plus inattaquable et la plus personnelle
de toutes les propriétés est l’ouvrage, fruit de la pensée
d’un écrivain”;
[2] Original reads
L’auteur, personne
physique, jouit de prérogatives d’ordre intellectuel et, à
ce titre, décide en maître souverain de la réalisation et de
l’achèvement de son oeuvre ainsi que de sa divulgation. Il
dispose, en outre, de prérogatives d’ordre moral, destinées
à protéger son nom, sa qualité et son oeuvre, tous éléments
inhérents à la création, justifiant que ce droit soit édicté
comme “perpétuel” et “inaliénable”
[3] Justin Fleming proposes ‘personal rights in authorship’
(Fleming 1993)
[4] Original reads
... un auteur, quand
il conclut un contrat d’auteur, donne tacitement sa
permission pour apporter à son oeuvre les modifications qui
sont inhérentes a la façon dont sa oeuvre va être exploitée