Copyright is concerned with protecting the economic interests of the copyright owner. The Copyright Act also contains a parallel regime which relate to recognition and protection of non-pecuniary matters. Those rights are referred to collectively as moral rights.
The leading intellectual property academic Professor William Cornish describes a moral right as being “a proprietary right which protects the personality of authors as expressed in their creations alongside their economic interests in exploitation” (7th ed, 2010 at p 513).
What are moral rights?
Moral rights include:
(a) The right to paternity/attribution;
(b) The right to integrity
(c) The right to control disclosure (when to release);
(d) The right not to be attributed as the author of a work; and
(e) The right of retraction (if the author no longer agrees).
Countries such as New Zealand, Australia, England and the United States have traditionally been reluctant to recognise moral rights, but they are included in the main international agreements on copyright law. In particular, the Berne Convention provides as follows (at art 6bis).
1) Independently of the author’s economic rights and even after the transfer of those rights, the author should 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 work, which would be prejudicial to his honour or reputation.
2) 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 person or institutions authorised by the legislation of the country where protection is claimed….
3) 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.
How do moral rights work?
Moral rights need to be asserted in order to be effective, where it is practical to do so. In the case of literary works this is normally a short statement at the start of a book.
One of the major issues around moral rights is whether they can be waived. Advocates of moral rights argue that allowing the rights to be waived potentially neuters the system, since waives could simply be sought as a matter of course. On the other hand, an inability to waive moral rights puts the regime on a collision course with the doctrine of freedom of contract which is dominant in countries whose legal systems are derived from the English system such as New Zealand.
Countries with a common law tradition have also argued that the interests underlying moral rights were already recognised or protected through different areas of law, such as passing off, defamation, injurious falsehood and other economic torts.
Realistically, only a small number of cases would not already be actionable under those causes of action or under the Fair Trading Act 1986; but moral rights has some attraction because it is a regime which was created for a particular purpose rather than further distorting other areas of law.
Introduction of moral rights into New Zealand
Moral rights became part of New Zealand law through the enactment of the Copyright Act 1994. This was six years after the United Kingdom’s copyright law first recognised moral rights. The New Zealand Act was enacted in response to international obligations (namely the Berne Convention and the Agreement on Trade Related Aspects of Intellectual Property Rights or TRIPS) rather than any particular pressure from affected groups.
The dearth of case law regarding moral rights suggests that they have not been entirely embraced, but it may simply be a reflection of the fact that the rights are protected by other areas of the law which can also lead to compensation (such as the Fair Trading Act and passing off). I have acted on cases involving moral rights issues, but they have been resolved in the early stages of the litigation without there being judgments required.
Case study: Radford v Hallenstein
One of the few New Zealand cases on moral rights to reach the courts since the regime was introduced in 1995 was Radford v Hallenstein [2009] DCR 907. This has since been resolved between the parties but it is helpful to consider Judge Joyce QC’s decision on strike out as an indicator of the approach of the New Zealand courts.
The plaintiff, Mr Radford, is a sculptor. He produced three sculptures which are displayed permanently in Western Park, Ponsonby, Auckland, at the southern end of Ponsonby Rd. The sculptures comprise representations of buildings which appear to be emerging at odd angles out of the earth. The defendant, Hallensteins, produced T-shirts bearing images of the sculptures combined with other visual elements, including Hallensteins’ Planet 8 logo, an image of the Auckland Sky Tower, and a representation of an eagle in flight.
Mr Radford wanted his sculptures to rise out of the ground “to haunt the people who demolished aesthetic structures during the 1980s’ building boom in Auckland”. His work was apparently intended to comment on and mourn this loss. He was therefore quite surprised to find images of his sculptures juxtaposed with an image of the Sky Tower on a commercial range of t-shirts.
Mr Radford claimed that the manufacture and sale of the t-shirts amounted to derogatory treatment of the sculptures, and prejudiced his reputation and honour as an artist. He alleged that this amounted to an infringement of his moral rights under sections 98 and 99 of the Copyright Act 1994. The defendant applied to strike out the moral rights claim, but this was refused by the Court which accepted that the claim potentially fell within the scope of those sections.
Considerations around use of moral rights
Moral rights should be regarded as part of the arsenal available to intellectual property lawyers when making claims. There will often be overlap with other areas of law, but there may be tactical advantages to making a claim under that regime in appropriate cases. Because the claims are particularly fact dependent, it is important to obtain specialist advice on whether a moral rights claim might be helpful in a case.