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More than one Madison Confused by Copyright · Thursday September 23, 2010 by Crosbie Fitch

In Moral Rights, Endowment Effects, and Things in Copyright Mike Madison exhibits a fair amount of confusion concerning the difference between a privilege such as copyright and moral rights. So, I’ll explain…

It is pretty straightforward.

There are privileges concerning intellectual works, and there are (natural) rights concerning intellectual works.

Copyright is a privilege granted for the benefit of the press (necessarily arising in each original work – a work that involves no copy).

Moral rights refer to the (natural) rights pertaining to an intellectual work and its use.

Unfortunately, in many jurisdictions the understanding of moral rights has been infected by the unnatural aspects of copyright and thus takes up a more proprietary aspect.

For example, instead of a moral right to integrity being a correctly understood as a matter of truth (that a work presented as the author’s is indeed the unadulterated work of the author), it is improperly taken to mean that an author has the power to veto any modifications or derivatives they feel to be insulting to their work or reputation.

In being indoctrinated to believe copyright is a right, people are then confused when confronted with a natural right. For example, people wonder how an author can have a perpetual right to identify themselves as the author of their work when they can only prevent copies of their work for a century or so. This is because the natural right to truth is inviolable and belongs to all, not just the author. Whereas, the privilege of suspending everyone’s right to copy is granted at law and thus arbitrarily limited. Authorship of a work is a fact and is eternal.

As for the ‘doctrine’ of first sale, it’s only called a ‘doctrine’ because some would like to undermine consideration of copies as the property of their purchasers. Copyright only suspends the right to make copies. It does not impinge upon the recognition of an authorised copy as the material and intellectual property of its purchaser. When you buy a book, you retain the natural right to exclude others from it. Only your natural right to make copies or otherwise communicate its expression has been abrogated by copyright. You at least retain the right to exploit and communicate the knowledge therein. So, selling what is your property (since no copying or communication is involved) cannot infringe copyright. What some claim undermines this is if a purchaser performs an act only permitted by a license attached to the work where that license is conditioned upon the purchaser consequently forfeiting ownership of the work. However, since no agreement or exchange actually occurs this is not a valid transfer of property. In any case, sale of the work simply means that the purchaser could not complete the conditions of the license and so has infringed copyright – not ‘disposed of stolen property’ (per inferred agreement to transfer its ownership).

Mike Linksvayer said 2736 days ago :

How do moral rights, as you think they ought properly be understood, relate to legal enforcement? Or do you only have normative and reputational remedies in mind?

Perhaps take integrity, which you seem to have reduced to not saying someone else wrote something that they didn’t.

Crosbie Fitch said 2735 days ago :

I think there should be legal remedies available for persistent/deliberate falsehood or deceit. When things cannot be resolved by communication or automated dispute resolution, then a tribunal could be provided where two parties support the truth of conflicting statements, e.g. “This is a poem by Fred” vs “No it isn’t, you’ve changed the expletives I used and the gender of the protagonist”.

When things escalate into fraud, e.g. an artist sells someone else’s work as their own, and serious amounts of fan-funded money are involved then it’s probably a matter for the courts.

Integrity is just a matter of truth. Copyright infects it with a proprietary aspect in that people think the right to integrity is the right to veto modifications (& copies thereof) – if they don’t like them. And then you have a defamatory aspect creeping in, with the idea that the artist can decide what modifications insult them or their reputation.

An author can authorise modifications, i.e. agree that the adoption of changes suggested by an editor preserve their work’s integrity, but this simply concerns this work as attributed to this author. It doesn’t preclude anyone else creating a derivative – as long as that derivative doesn’t pretend to be the original or the work of that author.

There is no right violated in putting a moustache on the Mona Lisa given no claim is made that it is the original painting nor that it is authorised by Da Vinci. And even if he were alive he has no right to forbid modifications he considers derogatory or that impugn his reputation (though he might covet such a privilege).

Philippines Telemarketing said 2554 days ago :

Moreover, moral rights are apprehensive with defending the individuality as well as the reputation of authors which is quite the opposite when it comes to the economic rights under copyright.

Crosbie Fitch said 2554 days ago :

Philippines Telemarketing, one might better say that, being a monopoly, copyright was an economically useful privilege – at the expense of annulling the right to copy or communicate covered works.

Moral rights might help protect an author’s reputation, but the author has no natural right to protect their reputation per se.



 

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