Waiving Moral Rights Can Be Moral
First Publication Date: 13th January 2010
Professor Anil’s post inspired me to research into alienability and waivability of moral rights under national laws. I noted that national laws of civil law countries such as France, Spain, Italy and Germany expressly restrict transfer and waiver of moral rights and national laws of common law countries such as UK and Canada permit their transfer and Waiver. If we look at the international instruments such as Berne Convention for the Protection of Literary and Artistic Works which under Article 6Bis also recognizes the moral rights of an author but is silent on the right of waiver of such moral right.
The issue which need some persuasion here is, “whether moral rights can be assigned or waived?”
If we look back to development of copyright law in common law countries we will find that prior to 1700, copyright was protect as the property rights. In United Kingdom, with Statute of Anne in 1710 the copyright was recognized for the first time as an independent right, but the moral rights and other similar non economic rights were integrated much later in Copyright Act of 1956. The moral rights were expressly codified only in the 1988 Act (Section 87). There the predominance was of economic rights and the preference was given to rewarding the person for his labour.
However, in the civil law countries such as France, the conception of droit D’auteur (rights of an author) has a deep rooted notion. Prior to french revolution, the rights of printing were considered as royal rights which were granted by the king to specific editors, resulting into absence of any rights except monetary to the authors. Further, after the French revolution in 1789, the concept of Driot Moral received great awareness and was later codified in the French Intellectual Property Code.
The legal position in various countries is as follows:
Germany- Under the German law, the restrictions to waiver is not specific to the moral rights. The law is reluctant to allow authors to surrender their rights in totality be it economic rights or moral rights.
France– In France, though economic rights are alienable and moral rights are inalienable, in cases of infringement the same protection which is accorded to one right is extended to the other set of rights mutatis mutandis. It provides for inalienable and perpetual moral rights and consequently, any renunciation is null, although the author cannot be forced to protect their work, their moral rights cannot be derogated by contract.
United Kingdom- The rights are waivable under UK law under Section 87 of the Copyright, Design and Patent Act 1988. However the waiver clause is not restrictive and can be interpreted to cover the waiver of moral rights by a contract.
Canada– Under Canadian Law, while moral rights may not be assigned, these rights may be waived by the author, in whole, or in part under Section 14.1 of the Act. A mere assignment or license of copyright in a work does not, in and of itself, amount to a waiver of moral rights in the work.
India– Indian law of copyright has developed much later then its equivalents across the globe. Section 57 provided for the special rights of the author, yet it does not prohibit the waiver of moral rights expressly. However if we look at the case of Amar nath Sehgal, we find that the Indian courts has accorded significant weight to Section 57 and rights imbibed in it.
To conclude it can be stated that the waiver of moral rights is yet not concretely answered by the legislation and the case-laws. On the one side there is no bar on waiver of such rights, on the other hand, the case-laws does not favour the waiver of such rights. Still the authors have right to waiver moral rights through a contract for the same. However as stated earlier by Dr. Kalyan in his post, the bargaining power of the author is reliant on the stature of the author.