Moral rights in Canadian copyright law

Last updated February 26, 2020

Moral rights in Canadian copyright law are protected under the Copyright Act of Canada and include an author's right to attribution, integrity and association of a work. Moral rights are to be distinguished from economic rights; moral rights essentially being derived from the reflection of the author's personality in his or her work, whereas economic rights grant an author the ability to benefit economically from their work. An author of a work retains moral rights for the length of the copyright, even if the copyright has been assigned or licensed to another party. Moral rights cannot be assigned or licensed, but can be waived by contract.^[1]

History

Moral rights in Canada can be traced back to a 1915 amendment of the Criminal Code . The amendment created a criminal offence to change a copyrighted dramatic, operatic or musical work that was to be publicly performed for profit or to suppress its title or authorship without the author's consent.^[2] Canada also legislated moral rights into the Copyright Act in 1931, stemming from a revision of the Berne Convention for the Protection of Literary and Artistic Works in 1928. The provision was further clarified and expanded in 1988. In 2012, the Copyright Modernization Act added moral rights for aural and sound recorded performances.^[3]

Statutory provisions

The relevant provisions of the Copyright Act that deal with moral rights are:^[4]

S14.1, S14.2, S17.1, and S17.2

Section 14.1 defines moral rights as the author's right to the integrity of the work, the author's right to create the work under his or her own name, pseudonym or anonymously (known as the right of attribution). Section 14.1 also lays out that moral rights can be waived in whole or in part, but cannot be transferred or waived using an assignment or license. Section 14.2 states that moral rights last the length of the term of copyright and upon the author's death the rights do pass to those upon whom the work was bequeathed.^[5]

Section 17.1 and 17.2 provide the same rights and definitions as 14.1 and 14.2, but in relation to live aural performances and sound recordings.^[6]

S28.1 and S28.2

Section 28.1 and Section 28.2 lay out the definition of moral rights infringement. Infringement includes any act or omission that is contrary to the moral rights of the author in general. The integrity of the work is infringed if it is to the prejudice of the honour or reputation of the author; distorted, mutilated or otherwise modified; or used in association with a product, service, cause or institution (known as the right of association). It is not an infringement of the moral work to physically change the location of the work or to restore or preserve the work in good faith.^[7]

S34(2)

Section 34(2) lays out the civil remedies for moral rights infringement and includes: all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right.^[8]

Berne Convention

Article 6bis of the Berne Convention, to which Canada is a party, grants moral rights, which are codified similar to the Canadian Copyright Act above. There are rights to authorship, integrity of the work, the moral rights persist as long as the economic rights to copyright, and the rights can pass on to the after death of the author if the ratifying state permits. Remedies are also governed by the ratifying state.^[9]

Canadian case law

There has been very little Canadian case law on the subject of moral rights and therefore many of the interpretations of the provisions in the act have yet to be determined. Two cases are discussed below. Théberge speaks to the difference between economic and moral rights, and Snow lays out a test to determine whether prejudice to the honour or reputation of the author has occurred.

Théberge v. Galerie d'Art du Petit Champlain Inc.

In Théberge, a 2002 decision of the Supreme Court of Canada, the plaintiff was an artist who sold paintings that were printed on poster paper. The defendant bought one of the posters and, using a specialized process, transferred the physical ink from the poster to a canvas. The main question in the case was whether there was copyright infringement. Justice Ian Binnie writing for the majority stated that there was a distinction between economic and moral rights:

"The economic rights are based on a conception of artistic and literary works essentially as articles of commerce."

Whereas moral rights are derived from the civil law tradition:

"They treat the artist's oeuvre as an extension of his or her personality, possessing a dignity which is deserving of protection. They focus on the artist's right (which by s. 14.1(2) is not assignable, though it may be waived) to protect throughout the duration of the economic rights (even where these have been assigned elsewhere) both the integrity of the work and his or her authorship of it (or anonymity, as the author wishes)."

Justice Binnie went on to say that moral rights are infringed if the work is modified to the prejudice of the honour or reputation of the author [s. 28.2(1)]. The logical implication from this provision is that modifications to the work that do not prejudice the honour or reputation of the author are within the rights of the copyright owner. Binnie concluded that the plaintiff in this case was attempting to pass off an economic right as a moral right. That is, the plaintiff was attempting to prevent the defendants from accessing a different market (economic incentive) by arguing that they were infringing his moral rights. Therefore, the majority of the Supreme Court of Canada held in favour of the defendant.

Justice Charles Gonthier in dissent held that the court not only needed to consider the infringement of moral rights but also the change in the medium of the painting [prohibited by section 3.(1)] and the change in the physical structure of the work [prohibited by section 28.2(3)].^[10]

Snow v. the Eaton Centre Ltd. et al.

In Snow, a 1982 case at the Ontario High Court of Justice, the defendant had purchased a sculpture of 60 geese that they placed inside their shopping centre. During their Christmas celebration the defendant tried to attach ribbons to the necks of the geese. The plaintiff alleged that the addition of the ribbons modified his work in a manner prejudicial to his honour or reputation.

Justice O'Brien held that moral rights give the plaintiff greater rights than rights based on libel or slander and that moral rights are not unconstitutional. He also stated that prejudice is measured subjectively by the author and found for the plaintiff in this case:

"I believe the words 'prejudicial to his honour or reputation' in s. 12(7) involve a certain subjective element or judgment on the part of the author so long as it is reasonably arrived at." [Note s.12(7) refers to previous Copyright Act]

Therefore, the test for the subjective prejudice to the honour or reputation of the author is to be measured by the author, so long as it is reasonably arrived at.^[11]

American moral rights

Under American law, moral rights are not specifically recognized. However, as the following case illustrates moral rights can be upheld using economic principles.

Gilliam v. American Broadcasting Companies

In Gilliam, a 1976 decision of the U.S. Court of Appeals for the Second Circuit, the BBC had agreed to allow ABC to broadcast 6 Monty Python episodes. The only rights that the agreement spoke to with respect to editing were trivial changes such as time. ABC ended up editing a significant portion of the episodes, amounting to 24 minutes cut from the original 90 minutes. At trial, the injunction sought by the plaintiffs was denied, and they appealed.

The Second Circuit Court of Appeal recognized that this was an issue of moral rights, which they defined as the right of the author to have their work attributed to them in the form that they created it. Nonetheless, American law does not explicitly recognize moral rights and favours economic rights over personal rights of the author. The court got around this by saying that:

"... American copyright law cannot be reconciled with inability of artists to obtain relief for mutilation or misrepresentation of their work to public on which artists are financially dependent."

Furthermore, other legal avenues such as misrepresentation in contract law or the tort of unfair competition can provide protection against mutilation. The court found that mutilation or misrepresentation is a valid cause of action under section 43(a) of the Lanham Act, a federal act pertaining to unfair competition. The court found that the editing done by ABC had misrepresented the work of the plaintiffs and therefore found for the plaintiffs.

"It is sufficient to violate Lanham Act, which has been invoked to prevent misrepresentations that may injure plaintiff's business or personal reputation even when no registered trademark is concerned, that a representation of a product, although technically true, creates a false impression of the product's origin... Plaintiffs, who alleged that editing done for television broadcast of programs based on their scripts mutilated original work, stated valid cause of action under the Lanham Act against television network for distortion of plaintiffs' work caused by editing."

Gilliam exemplifies that even if moral rights are not explicitly recognized they can be protected under different legal causes of action.^[12]

Academic commentary

Academic commentary on moral rights differs. One perspective holds that moral rights allow an author to maintain and promote his or her creativity.^[13] This stems out of a notion that an author is intimately tied with his or her work.

Another perspective holds that allowing authors to protect their artwork may in fact damage artistic creation by preventing modification or in some case destruction of an artwork.^[14] Which position is correct is unclear, however, it is a fact that there is only a small amount of case law concerning moral rights. Furthermore, the statutory language around moral rights is ambiguous, and it is conceivable that moral rights may come into contention with fair dealings provisions, in which case a balancing of an author's moral rights and a user's fair dealing rights is necessary.

Related Research Articles

Copyright is the exclusive right given to the creator of a creative work to reproduce the work, usually for a limited time. The creative work may be in a literary, artistic, educational, or musical form. Copyright is intended to protect the original expression of an idea in the form of a creative work, but not the idea itself. A copyright is subject to limitations based on public interest considerations, such as the fair use doctrine in the United States. Some jurisdictions require "fixing" copyrighted works in a tangible form. It is often shared among multiple authors, each of whom holds a set of rights to use or license the work, and who are commonly referred to as rights holders. These rights frequently include reproduction, control over derivative works, distribution, public performance, and moral rights such as attribution.

Moral rights are rights of creators of copyrighted works generally recognized in civil law jurisdictions and, to a lesser extent, in some common law jurisdictions. They include the right of attribution, the right to have a work published anonymously or pseudonymously, and the right to the integrity of the work. The preserving of the integrity of the work allows the author to object to alteration, distortion, or mutilation of the work that is "prejudicial to the author's honor or reputation". Anything else that may detract from the artist's relationship with the work even after it leaves the artist's possession or ownership may bring these moral rights into play. Moral rights are distinct from any economic rights tied to copyrights. Even if an artist has assigned his or her copyright rights to a work to a third party, he or she still maintains the moral rights to the work.

Théberge v Galerie d'Art du Petit Champlain Inc[2002] 2 S.C.R. 336, 2002 SCC 34 is one of the Supreme Court of Canada's leading cases on copyright law. This case interprets the meaning of "reproduction" within the Copyright Act of Canada, and touches on the moral rights to copyrighted material and how much control an author has over his work once it is in the hands of a third party.

Snow v Eaton Centre Ltd is a leading Canadian decision on moral rights. The Ontario High Court of Justice affirmed the artist's right to integrity of their work. The operator of the Toronto Eaton Centre was found liable for violating Michael Snow's moral rights by putting Christmas bows on his work Flight Stop.

The Copyright Act 1957 governs the subject of copyright law in India. The Act is applicable from 21 January 1958. The history of copyright law in India can be traced back to its colonial era under the British Empire. The Copyright Act 1957 was the first post-independence copyright legislation in India and the law has been amended six times since 1957. The most recent amendment was in the year 2012, through the Copyright (Amendment) Act 2012. India is a member of most of the important international conventions governing the area of copyright law, including the Berne Convention of 1886, the Universal Copyright Convention of 1951, the Rome Convention of 1961 and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Initially, India was not a member of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) but subsequenty entered the treaty in 2013

Prise de parole Inc v Guérin, éditeur Ltée is a leading Canadian case on moral rights in Canadian copyright law. The Federal Court of Canada found that the plaintiff's moral rights had not been violated because there was no objective evidence that the reproduction caused harm to his reputation.

In copyright law, a derivative work is an expressive creation that includes major copyrightable elements of an original, previously created first work. The derivative work becomes a second, separate work independent in form from the first. The transformation, modification or adaptation of the work must be substantial and bear its author's personality sufficiently to be original and thus protected by copyright. Translations, cinematic adaptations and musical arrangements are common types of derivative works.

The copyright law of the United States is intended to encourage the creation of art and culture by rewarding authors and artists with a set of exclusive rights. Copyright law grants authors and artists the exclusive right to make and sell copies of their works, the right to create derivative works, and the right to perform or display their works publicly. These exclusive rights are subject to a time limit, and generally expire 70 years after the author's death. In the United States, any music composed before January 1, 1924, is generally considered public domain.

The copyright law of New Zealand is covered by the Copyright Act 1994 and subsequent amendments. It is administered by Business Law Policy Unit of the Ministry of Business, Innovation and Employment (MBIE). In June 2017, a review of the existing legislation was announced.

Moral rights in United Kingdom law are parts of copyright law that protect the personal interests of the author of a copyrighted work, as well as the economic interests protected by other elements of copyright. Found in the Copyright, Designs and Patents Act 1988, the moral rights are the right to be identified as the author of a work, known as the right of paternity, the right to object to derogatory treatment of a work, known as the right of integrity, the right not to be identified as the author of someone else's work, and the right to privacy. The right of paternity exists for the entire copyright term, and requires individuals who commercially broadcast, sell, perform or exhibit literary, dramatic, musical or artistic works to identify the author of the work – but this does not apply to things such as typefaces, encyclopaedias or works subject to crown copyright.

It is an infringement in Canadian copyright law for any person to do, without the consent of the owner of the copyright, anything that only the copyright owner has a right to do as covered in the Copyright Act..

Fair dealing is a statutory exception to copyright infringement, and is also referred to as a user's right. According to the Supreme Court of Canada, it is more than a simple defence; it is an integral part of the Copyright Act of Canada, providing balance between the rights of owners and users. To qualify under the fair dealing exception, the dealing must be for a purpose enumerated in sections 29, 29.1 or 29.2 of the Copyright Act of Canada, and the dealing must be considered fair as per the criteria established by the Supreme Court of Canada.

A patent holder in Canada has the exclusive right, privilege and liberty to making, constructing, using and selling the invention for the term of the patent, from the time the patent is granted. Any person who does any of these acts in relation to an invention without permission of the patent owner is liable for patent infringement.

In Canada, passing off is both a common law tort and a statutory cause of action under the Canadian Trade-marks Act referring to the deceptive representation or marketing of goods or services by competitors in a manner that confuses consumers. The law of passing off protects the goodwill of businesses by preventing competitors from passing off their goods as those of another.

Provisions related to Italian copyright law are found in Law no. 633 of 22 April 1941. Certain fundamental provisions are also found in the Italian Civil Code of 1942, Arts. 2575–2583.

Amar Nath Sehgal v. Union of India is a landmark Indian case decided by the Delhi High Court, which for the first time upheld the moral right of an author under the Indian Copyright Act and awarded damages. The government was also asked to return his mural.

Paraphrasing of copyrighted material may reduce the probability that a court will find that copyright has been infringed; however, there have been many cases where a paraphrase that uses quite different words and sentence structure has been found to infringe on a prior work's copyright.

Mannu Bhandari v. Kala Vikas Motion Pictures Ltd is a landmark case in the area of Indian copyright law. It is the first decision from the Indian higher judiciary that clarified the scope and ambit of moral rights under the Indian copyright law.

Paul Oliver v. Samuel K. Boateng was a ground-breaking case concerning copyright law in Ghana by the High Court of Justice. It reaffirmed the laws of Copyright relating to the requirements of copyright protection and also, the law relating to authorship in Ghana. This case elaborated the fact that the law of Copyright in Ghana is a creature of Statute and setting out some major general principles in Copyright Law in Ghana. The facts involved Mr. Paul Oliver, a programmer, who claimed ownership of Copyright in two versions of a Rural Banking software called Rural Banker and E- finance respectively. Paul Oliver sued Samuel Boateng and the second defendant Victor Gbehodor for licensing his software to other rural banks without his permission. The court in this case, Fundamentally, relying heavily on Statute, which in this case was the Copyright Act, 2005 emphasized how statute dependent the Law of Copyright in Ghana is. The case also made reference to the various subject matter that are not Copyright-able in Ghana throwing a specific light on Ideas.it made it clear that a person who expresses the idea in a concrete form will rather be the Author of a work. Also, this case made some decisions regarding may be referred to as a joint Author and also threw some light on Infringement of Copyright, Damages and also highlighted the existence of idea/expression merger scenarios.

References

↑ David Vaver, Intellectual Property Law: Copyright, Patents, Trade-Marks, 2nd ed (Toronto: Irwin Law, 2011) at 203-205.
↑ David Vaver, Intellectual Property Law: Copyright, Patents, Trade-Marks, 2nd ed (Toronto: Irwin Law, 2011) at 204.
↑ Berne Convention for the Protection of Literary and Artistic Works, 1979.
↑ Théberge v. Galerie d'Art du Petit Champlain Inc., [2002] 2 S.C.R. 336.
↑ Snow v. The Eaton Centre Ltd. et al. [1982] 70 C.P.R. (2nd) 105.
↑ Gilliam v. American Broadcasting Companies, 538 F.2d 14 (2d Cir 1976).
↑ Roberta Rosenthal Kwall, The soul of creativity: forging a moral rights law for the United States, (Stanford: Stanford University Press, 2010) at XIII at XVIII.
↑ Amy M. Adler, "Against Moral Rights" (2009) California Law Review, 97:263-300.

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[1] David Vaver, Intellectual Property Law: Copyright, Patents, Trade-Marks, 2nd ed (Toronto: Irwin Law, 2011) at 203-205.

[2] David Vaver, Intellectual Property Law: Copyright, Patents, Trade-Marks, 2nd ed (Toronto: Irwin Law, 2011) at 204.

[3] Copyright Act, RSC 1985, c C-42, s 17.1.

[4] Copyright Act, RSC 1985, c C-42.

[5] Copyright Act, RSC 1985, c C-42, 14.1, 14.2.

[6] Copyright Act, RSC 1985, c C-42, 17.1, 17.2.

[7] Copyright Act, RSC 1985, c C-42, 28.1, 28.2.

[8] Copyright Act, RSC 1985, c C-42, 34(2).

[9] Berne Convention for the Protection of Literary and Artistic Works, 1979.

[10] Théberge v. Galerie d'Art du Petit Champlain Inc., [2002] 2 S.C.R. 336.

[11] Snow v. The Eaton Centre Ltd. et al. [1982] 70 C.P.R. (2nd) 105.

[12] Gilliam v. American Broadcasting Companies, 538 F.2d 14 (2d Cir 1976).

[13] Roberta Rosenthal Kwall, The soul of creativity: forging a moral rights law for the United States, (Stanford: Stanford University Press, 2010) at XIII at XVIII.

[14] Amy M. Adler, "Against Moral Rights" (2009) California Law Review, 97:263-300.