Moral Rights

If you're in the habit of reading books imported from the UK, you may have noticed that their copyright pages bear the enigmatic and seemingly obvious claim that (mutatis mutandis) "[t]he right of Lawrence Norfolk to be identified as the author of this work has been asserted by him in accordance with the Copyright, Designs, and Patents act of 1988." In point of fact, this claim is not a copyright claim at all, but rather a statement of the moral rights of the author. Lawrence Norfolk, under British law, has the the right to be identified as the author of In the Shape of a Boar. If you try to pass it off as your own creation, or to alter its text in a way he disapproves of, he can sue you.

This sounds a great deal like a subset of copyright, but there's a key distinction. Copyrights are property rights: you can buy, sell, assign, barter, hoard, or waive them. The moral right of the author is considered to be -- according to the Berne convention -- an inalienable human right. This is the same serious meaning of "inalienable" the Declaration of Independence uses: not only can't these rights be forcibly stripped from you, you can't even give them away. You can't sell yourself into slavery; and neither can you (in Britain) give the right to be called the author of your writings to someone else.

The U.S. doesn't recognize these moral rights: it considers the copyright system sufficient. This has led to some interesting international lawsuits. In the late 1940s, Fox put out an anti-Soviet movie and decided to score it with public domain music by Shostakovich. Shostakovich was horrified -- especially so, given the persecution he endured for the purportedly anti-Soviet messages in his music -- and sued (along with Prokofiev and another composer). The U.S. court threw their case out on its ear. A French court, however, sided with them, and thus the film was barred from distribution in France. The French take moral rights seriously: they've also barred an all-female production of Waiting For Godot and a colorized version of Asphalt Jungle.

Closer to home, it's interesting to speculate on the differences stronger recognition of moral rights might mean for ther various hot-button intellectual-property cases in this country. They sound great, no? No more classifiying of records as "works for hire," strong protections against corporate exploitation, better rights for independent writers. If one considers software as a form of expression -- as many people do, including me more days than not -- one can certainly see the Open Source upside. But there are scary downsides, too: that protection against alteration has some scary land mines hidden within it. I'd say there's pretty much no arguing with shrink-wrap licenses if you take moral rights at full value. I don't want my software associated with your "degrading misuse" of it, fine, then, the courts may very well back me up, based precisely on the expressive content of my code. The same goes for media distribution. Why even bother to put encryption on DVDs is the creators' moral rights extend to having their works "performed" or "published" only as they intended?

These are messy issues, and moral rights certainly don't provide easy answers. What they do provide, I think, is perspective. The world doesn't always work the same way as the U.S.: they have different guiding principles in places, and calling out some of the differences can be a way of challenging assumptions. We've got options, more options than we usually realize.