November 19th, 2008
Copyright protects original and creative works of art, and other kind of contents that surround creation, like phonograms, audiovisual recordings, performances, etc. The legal protection for this protection differ worldwide; however, we are able to categorize it in two basic rights: exploitation rights and moral rights.
Exploitation rights are those that provide incomes to an author by granting her the exclusive control on her works, who has the right to prevent the reproduction, distribution, public performance, or transmission of her works of authorship. Those rights are granted by law often to the author or creator of the work (in an employer-employee relationship, the owner might be the employer, depending on the jurisdiction), with a term of protection which differs from one country to another (the life of the author and fifty years after his death, according to the Berne Convention, although most countries have adopted the life plus seventy years formula), although these rights can be assigned to others by license or transferred by contract.
However, legislators around the globe have introduced certain exceptions to those exclusive rights, limitation that diverge from one country to another. In the U.S., the Copyright Act establishes some exceptions, including for libraries, archives and schools that allows them to reproduce certain works in specific conditions, or other that permits the parody of the work, while most countries in Europe have accepted other exceptions for reporting current events, citing or private copying.
In some countries, specially in Europe, there are also the so called remuneration rights, which guarantee authors some revenues for the actual exploitation of the works. Some examples are the “droit de suite”, which is the right of the author to receive a fee from the resale of an artwork by a dealer or another buyer and is valid almost worldwide, or the infamous “private copying levy”, that is specially popular in central Europe.
The second category of rights are the moral rights or “droit moral”, whose nature and scope differ in each country, that the Berne Convention (the international treaty that has regulated intellectual property rights for over 100 years) defines as follows: “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”.
Accordingly, and thanks to these moral rights, certain rightholders (especially individual creators) can oblige others to respect the authorship of a work, and stop its distortion, mutilation and any other modification that affects its integrity. But, why does this right exist? Many European countries consider that when an author creates, she fixes her personality in the work, and that fixation of her spirit should be protected against any external intromission.
Berne Convention’ contracting parties, however, do not cover these rights in the same fashion, with countries like France, Germany or Spain, where moral rights are strongly protected, and other like the U.S. whose protection is minimal and only covers certain type of works. The U.S. scheme is frequently used as an example of a country where moral rights does not exist, which is not totally correct because certain moral rights are recognized to visual artists (painting, drawings, prints, sculptures and still photographic images) according to 1990 Visual Artists Rights Act. Notwithstanding this, waiver is allowed.
The duration of these moral rights is not the same in every country; in some nations like Spain, they are unlimited on time, while others like the U.S. protects them only during the natural life of the author. However, most of the countries prohibit the transfer of these rights because they affect the personality of the creator, and that cannot be claimed by any third party.
Safe Creative, as a global copyright registry, is potentially compatible with every legal system, allowing authors to register and protect their works. In this scenario, authors will retain their moral rights according to the applicable law and, for economic rights, their will is granted by the corresponding license.
By Andy Ramos and Javier Prenafeta
Entry Filed under: legal