Moral Rights and the iCommons

This weekend (25-6 June) we are at the iCommons Summit in Harvard. One of the most fascinating issues to come up is that of moral rights. Moral rights are non-economic rights and usually include the right of attribution; to be named as the author. IP academics call this the right of paternity, a term loaded with ideological assumptions about creativity. The right is often called the right of integrity, which gives the author the right to object to distortions of the work.

Unlike copyright and related rights the moral right(s) cannot be alienated, sold, donated or transferred. The creator retains the rights, and cannot give them away.

The intellectual origin of Moral rights is the Continental tradition which conceives of intellectual property rights as aspects of the personality of the lone, Romantic author figure. This view sees moral rights as protection for the artistic honour of the creator.

South Africa has incorporated moral rights because its included in the Berne Convention; a multilateral copyright treaty. Section 20 of the Copyright Act provides:

“20. Moral rights

(1) Notwithstanding the transfer of the copyright in a literary, musical or artistic work, in a cinematograph film or in a computer program, the author shall have the right to claim authorship of the work, subject to the provisions of this Act, and to object to any distortion, mutilation or other modification of the work where such action is or would be prejudicial to the honour or reputation of the author: Provided that an author who authorizes the use of his work in a cinematograph film or a television broadcast or an author of a computer program or a work associated with a computer program may not prevent or object to modifications that are absolutely necessary on technical grounds or for the purpose of commercial exploitation of the work.”