Dan Hunter

MORAL RIGHTS, MORAL WRONGS

"If there's one thing worse than the modern weakening of major morals, it is the modern strengthening of minor morals"

G.K.Chesterton, On Lying in Bed

There is talk about the introduction of moral rights into the Australian Copyright Act. Moral rights, or more accurately "author's rights", are elements of the European systems of copyright. These rights provide for additional protection for authors and artists, and hence are seen by the artistic community as an unqualified human good. Various pressure groups are working on the federal government to introduce these rights, and it appears that the legislation will go ahead. This move is seen by many as a big step in the right direction.

I'm not so convinced.

On the nature of copyright

We, like all ex-colonial outposts, inherited our copyright regime from the United Kingdom. In the UK copyright was always seen as an element of the economic well-being of the nation. In fact, when copyright was first created it was not about freeing and supporting artistic endeavour, but was about creating a monopoly for a group of book publishers. Though there have been various concessions made to the notional "artist in the garret" it remains the case that copyright is actually about creating an environment for people to make money from ideas and expression. Think about the rights that it gives authors: the right to stop infringing works being made and sold, the right to stop others adapting your work for stage or screen, and so on. These are about protecting the market for the work, not really the work itself.

The European system is different. It has always had a greater awareness of the author, rather than the publisher/promoter/distributor/etc. Hence, author's rights have always been, at one level, more important than the economic rights which happen to be created under the system, at times almost as an oversight. Thus, we see the inclusion of a number of moral rights in the European copyright regimes. For example, the right of publication ("droit de divulgation") allows the artist to decide how a work is to be shown, or not shown, to the public. Or the right to claim authorship ("droit a la paternite"), which means that another cannot your work as their own and you as artist have the right to claim the work as yours. Or the right of integrity ("droit au respect de l'oeuvre") which means that an author can object to any mutilation, distortion or other act which causes harm to the work. There are a number of others. And all of these rights remain with the author, even though the work may be sold, leased, rented, or whatever.

Now, this state of affairs may sound like a wonderful panacea for artistsÑat least they will retain some small control over their work. Surely, adding author's rights to the economic rights already in the copyright system must be a noble, honourable, and wonderful thing? It may be, though I think there may be a downside to this delightful system.

You see, the provision of these rights, a kind of moral veto, will inevitably reduce the economic value of some artistic work. Since the rights remain with the author in perpetuity, the author will always have the opportunity to stop the owner of the work from doing a number of things to it. Like falsely attributing the work to another (important when one thinks about Naomi Campbell's latest novel, ghostwritten by an unnamed author). Like cutting the work up to fit into another work (this may lose a sale of paintings and artwork for particularly spaces and needed for particular purposes). Like shutting down the use of sound grabs and other sampling in contemporary music. Like, most importantly for me, the eradication of the nascent multimedia industry. How could this be?

Depending on how the legislation is drafted, moral rights may mean that the author has the right to refuse that her video be chopped to fit onto a CD-ROM multimedia game. Equally, she may refuse to allow that colours of the work be changed for a surreal effect, or may refuse to allow the work to be pixelated. Indeed, she may refuse to allow any other of the special effects that are the staple of the next wave in artistic and media works. For the author now has the right of integrity (and paternity) which may stop this type of experimentation. This will mean an additional level of harassment for the multimedia artist who just wants to work. It will also be yet another opportunity for lawyers and managers to arrange deals, and skim off their percentage. I don't think that moral rights is a cost-free option. We need to think about what it will costs artists, publishers and promoters if we introduce them.

I am not sure that the scenario I outline will happen, but I am fairly certain that the framers of the moral rights legislation have given little thought to the potential problems. It is just another possible hiccup for the Australian multimedia and music industries. One can only hope that this hiccup, together with the licensing hiccup discussed in my last column, do not worsen to a terminal cough for these new industries.

Next issue: "The death of copyright"

Dan Hunter is a lawyer and computer scientist who lectures at the Law School, University of Melbourne. He can be contacted on the Internet at dah@rumpole.law.unimelb.edu.au