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“In some respects, UK copyright law is not very generous towards authors and performers.”
Discuss this statement in relation to ownership and moral rights.
By virtue of the implementation of the Copyright, Designs and Patents Act (CDPA) 1988 which has been regarded as one of the most noteworthy developments in United Kingdom (UK) copyright law over the past two decades, it appreciates that the position of authors and performers has been gradually recognized in response to their originality and creative effort. Nonetheless, where we can witness over these years, this optimism seems unjustified. This essay will discuss the current position of authors and performers in the UK copyright system, in reference to ownership and moral rights (mainly on the significant paternity right and integrity right) outlines as structured below.
Ownership Of Authors In The UK
In the UK, the author of a work is the first owner of copyright, subject to two main exceptions. The first exception being that the employer is the first owner of any copyright work made in the course of employment, unless there is an agreement to the contrary. The second exception being that the Crown is the first owner of the copyright in a work made by an officer or servant of the Crown, in the course of his duties. These exceptions incite the criticism that the UK copyright law not only fails to impel creators to create, it also fails to acknowledge the moral rights which employee-authors have in their own creation.
The main complexity with the ownership provisions concerns the employment relationship and the wording of ‘in the course of employment’. In determining an ‘employee’, the Court of Appeal in Stephenson Jordan & Harrison Ltd v MacDonald adopted the skill, labour, and judgment test on the basis of justice and common sense. This approach was later applied in Noah v Shuba concerned an implied agreement of the employed consultant epidemiologist. By and large, where an employee performs work beyond the employment contract, namely a contract of service; the employee will become the first owner of the copyright work. This point is well illustrated by Lord Denning in Stephenson with an analogy of the staff of school giving lectures orally to students. However, Lord Denning’s robust notion may not be pragmatic in today’s changing nature of education system where certain written materials produced by teachers or lecturers distributed to students are generally prepared during the course of employment.
In addition, the categorization of a person as an employee or self-employed person is crucial to the question of copyright ownership in which it requires further exploitation. Although such categorization is not completely clarified, a combination of questions proposed by Cooke J is instrumental. Although in each case the situation will be assessed on its facts, it can be summarized that ‘the greater the degree of individual responsibility the worker has in his work, the more likely he is to be an independent contractor’. (Cooke J, 1969)
In general, the normal ownership rule applies when a work is commissioned from its author. The old provisions of commissioned works and equitable assignment have now been replaced with a moral right of privacy for photographs and films commissioned for private and domestic purpose. Whilst considerable economic damage may be incurred if the author’s work commissioned for commercial use is copied or infringed, it could be fairly argued that the author may not have the resources or interest to seek for redress.
In addition, it is submitted that the courts are likely to interpret contradictory agreement in a very commercial way despite the relationship of the parties is envisaged from the contract. In a recent case of Griggs Group v Ross Evans where an exclusive licence would be insufficient for the business purpose, the court was prepared to imply a beneficial assignment of copyright to the commissioner of artwork in order to give business efficiency to the commissioning arrangement. The case has extend beneficial ownership to all commissioned works, and render section 11 CDPA 1988 subject to a non-statutory exception in the case of works made by independent contractors. Consequently, the impact of such decision has eviscerated certainty in transactions and deprived the protection granted to authors simply by a ‘tacit inducement’ of giving authors the opportunity to reflect upon whether they wish to transfer their rights.
Moreover, in situations where the commissioned works have unanticipated uses; author of commissioned works may face considerable threats if he wants to exploit these works with the commissioner’s commercial rivals, or to hold the commissioner to ransom over any subsequent alterations. This is particularly evident in cases relating to computer software commissioned from independent consultants where the courts are often prone to protect the commissioners by the implication of licenses in the commissioning contract, in the same way that licenses are implied in relation to architectural plans.
The joint owners in a work of joint authorship will own the copyright in the work as tenants in common and each of them will have their own individual rights against infringement in the work that they can assign individually. The only limitation on joint owners is that they will never own the whole copyright individually, viz, they will not be able to license someone to exploit the work without consent of the other co-owners.
Moral Rights Under The CDPA 1988
Prior to the CDPA 1988, moral rights were only covered under headings such as contract and defamation where the authors were obliged to resort to torts of defamation, passing off and contractual obligation. In tardy recognition of Berne Copyright Convention and in acknowledgment of the significance of moral rights are regarded in the rest of Europe, the CDPA 1988 for the first time introduced a series of moral rights statutory provisions in UK copyright law. There are now positive express rights conferred directly on authors and directors of copyright literacy, dramatic, musical and artistic works and copyright films, with potential for quicker relief. These moral rights are summarized as followings:
- The right to be identified as author (paternity right)
- The right to object to a derogatory treatment of work (integrity right)
- The right not to have work falsely attributed (false attribution right)
- The right of privacy to certain photographs and films (privacy right)
The Right Of Paternity
As set out in section 77(1) CDPA 1988, the creator of a work has the right to be identified as its author, subject to a pre-condition of assertion. This pre-condition which firmly places an onus of self-protection on authors is subject to considerable criticism. Other than being inconsistent with Article 6bis of the Berne Convention, this requirement also severely conflicts with the basic nature of moral rights and substantially devalue the moral right of the author. Further, the assertion requirement could trigger a potential defence to any claim to breach of the paternity right if the defendant had made reasonable and appropriate enquiries to establish the author’s identity. Moreover, any delay in such assertion will work to the detriment of the author, since the court will take into consideration of such delay in determination of the remedies. As there is no requirement as to when such assertion should be made; this would provide a pitfall for inexperienced authors whom unfamiliar with their legal rights and the possibility for them to overlook this requirement is likely to be very high. In view of these drawbacks, the commentators ardently criticize that the right of paternity appears to be a very grudging move towards moral rights in the UK with a triumph of entrepreneurial considerations over authors’ rights, this is particularly distinct where the requirements of pre-conditions and the potential defence are taken into account.
Furthermore, there is a substantial list of exceptions to the paternity rights. In this particular aspect, the provisions deserve some credit in minimizing the complexity and overload of unnecessary identification. At the same time, it is not difficult to identify that the UK legislation had shown an inclination to inherently protect the entrepreneurs, in a fear that over-protection of moral rights may hamper the freedom of expression in the commercial business world
The Right Of Integrity
Before the integrity right existed, the licensee had the right to alter the original work subject to the limitations set out by the courts in appropriate circumstances. The new right of integrity extends this provision by protecting author’s reputation against any derogatory treatment of his work. Whilst the integrity right seemingly provides a robust protection to authors, definition of these protections has remained elusive. It is suggested that the Act neither clarifies the specific ‘derogatory’ requirement, nor was it clear about the prejudice test is a subjective or an objective one. Over the years, cases of any significance and reached the court are limited. In both cases of Tidy v Trustees of the Natural History Museum and Pasterfield v Denham where the claimants respectively argued various changes to their original works amounted to derogatory treatment, the judge in each instance rejected these arguments based on the grounds that neither such changes amount to mutilation and distortion, nor prejudiced the claimants’ reputation from the evidence of public effect. In a recent case of Confetti Records v Warner Music, the claimant objected the use of his song by the defendant with addition of reference to violence and drug use. Lewison J dismissed the case on the basis that ‘some evidence of damage to the author’s reputation must be clearly adduced in order for an author to claim his integrity right’ (Lewison J, 2003). An inference could be drawn from these cases that the moral rights claims were merely ancillary to claims for copyright infringement and none of them is of much help in determining what does and what does not constitute ‘derogatory treatment’ within the context of the CDPA 1988.
In addition, where courts are given significant interpretative role in cases which call for objective evaluation, most notably the concept of ‘derogatory treatment’ which must prejudice ‘honour and reputation’, one may argue that this has completely goes against the grain of moral rights and their essence. Moral rights are personal in nature and a reflection of the personality of the creator; how therefore can a judgment based on objective criteria be compatible with the nature of personal right?. Subsequently, creators may never know what changes are considered as ‘distortion or mutilation’ until the court has made its decision. Hence, a period of uncertainty may result as case law develops; and during this period, the protections given to the authors are greatly undermined. In contrast to the other European jurisdictions which have attained a high watermark of protection for integrity, integrity protection for authors in the UK remained inadequate.
With the wide scope of the integrity right, it could be expected that the right is subject to a series of exceptions. The integrity right does not apply to a work made for the purpose of reporting current events, to publications in newspapers, or collective works of reference such as encyclopaedias. In the former case, it is plausible that the breadth of exception provision has undermines the creativity and effort of the majority of journalism; while in the latter case, it is foreseeable that some publishers are likely to retain their power to edit and alter the work without consulting with the contributing authors. Equally, translations of works are excluded from the integrity right and thus the author’s integrity right will not be protected even his work has been hideously translated. Thus, the practical effect of the integrity right remained questioned.
Remedies For Infringement Of Moral Rights
Notwithstanding the CPDA 1988 provides little express guidance on the remedies for breach of moral rights, an infringement of one of the moral rights is actionable as a breach of statutory duty owed to the person entitled to the right and the author can seek for injunctive relief or damages. Whilst the author is now granted a power of objection more readily enforceable than any previous contractual and tort remedies, it is speculated that he may secure no more than an order from the court that the work be published with a disclaimer dissociating him from it. It is believed that the impact of moral rights is hugely compromised by the injunction order which allow continuation of the act complained of, so far as a disclaimer is made.
Consent And Waiver
Although a moral right cannot be assigned, section 87 CDPA 1988 allows for both consent and waiver of the moral rights by instrument in writing signed by the authors. Such a waiver can be specific or general, relating to both existing and future works and subject to potential subsequent revocation.
The existence of this flexible waiver facility gives rise to question of the effectiveness of the entire moral right system. Given the bargaining power which entrepreneurs are likely to dominate in a negotiation for the creation and commercial exploitation of the work, undue economic pressure could be exercised on the vulnerable authors to consent to a waiver in order to realize the publication of his work. This indirectly exerts onus on authors to contract for their own self-protection, along with all the disadvantages that contractual protection brings. A further danger is the possibility of an informal waiver under the general principles of contract or estoppel which could render the authors lost his identity right if his conduct leads another person to believe that he will not insist upon identification. Due to the low standard of originality applied in UK copyright law, the potential for multiple authors exercising moral rights in compilations of such works is one of great inconvenience and expense; and it is likely that their participation eventually will impute agreement to modification.
The waiver provision, as the greatest compromise in the CDPA 1988, both in theory and in practice, signifies an inroad into the provision of moral rights, indicating victory for commercial interests over authors’ personal creative interest. Other than preserving the certainty of contracts, the waiver provision is arguably unhelpful in safeguarding the author’s moral rights. It serves as a hidden tool to accommodate the commercial efficiency against the ‘interference’ of moral rights. Accordingly, the most secured protection for the authors is to insist on a term to the effect that the waiver is to be revoked if the assignor or licensee commits a breach of contract.
Performers’ Right In The UK
By means of the Performances (Moral rights, etc) Regulations 2006, there are two moral rights granted to performers analogous to those provided to authors under part II of the CDPA 1988, namely the paternity right and the integrity right.
Performer is now granted a right to be identified as performer in his live aural performances and any performances fixed in phonograms, subject to a series of exceptions. It appreciates that the assertion requirement leads to a series of knotty problems fraught with confusion and uncertainty. For instance, how notices should be published, how notices can be brought to the attention of a potential exploiter of a recording or broadcast and as to whether any type of constructive or imputed notice could be implied. All these unsolved questions are potentially putting the performers at risk, especially when it concerns their interest in remedies. Further, the provisions do not provide any guidance on the wording ‘not reasonably practical’ in the exception provision. It is believed that this could open to a floodgate of abuse since it is so broad that leaves considerable room of interpretation to the courts.
Under section 205F part II CDPA 1988, a performer is provided an integrity right in his performance. As there is no mention of ‘honour reputation’ of performers as appears in copyright infringement; it is conceivable that the performer has a higher burden of proof in showing the infringement under the broader definition of ‘derogatory treatment’. Further, a list of exceptions is set down in section 205G (1) part II CDPA 1988. Since no lucid guidance as to the interpretation of the concept of ‘normal editorial practice’, it can be inferred that the practicality of integrity right remained unknown. Whilst the overall system reminiscent of author’s moral rights system, it could be expected that the duration of moral rights of performers are also linked to the duration of the (economic) rights in the performance.
In general, performance rights expire at the end of the period of 50 years from the end of the calendar year in which the performance takes place. Over recent years, this provision has evoke a wholly dissatisfaction among the musicians. In campaigning for a longer term of rights protection, the musicians alleged that ‘scant and staggering reward’ for their role in a valuable export industry is unjustified and they should deserve more gratitude from the government. Although the proposal to an extension of 95 years has been firmly rejected, the European Commission has recently announced that the copyright protection on sound recording has been expanded to a term of 70 years. Whilst the member states are given two years to transpose the new legislation, it is inquisitive how such legislation will be incorporated into the traditional UK copyright law.
Without any indication that the UK will venture towards other moral rights existing in civil jurisdictions, it appreciates that the moral rights in the UK have been conferred in a way that is grudging and constrained to the authors and performers. The paucity of UK case law on moral rights over the past 17 years is the best evidence to show how moral rights have been marginalized in the country. In consideration of the shackled set of rights to which a number of conditions and exceptions apply, it is manifest that the concept of moral rights is not yet fully integrated in the UK’s entrepreneurial style copyright system and protection granted to authors and performers are arguably very little. Hence, the moral rights provision in the UK has not only failed to streamline the protection for authors and performers, it is possible to cause an erosion of overall protection in the future. Moreover, in the new era of advanced science and technology where copyright infringement is at issue, the rights of the authors and performers are likely to face with some formidable challenges.
Providing a comprehensive protection to authors and performers in the realm of copyright can be a daunting task, especially in a common law country, such as the UK. Hence, in order to furnish a deeper protection to authors and performers, three ameliorations are proposed here. Firstly, perhaps the UK legislation needs more imaginative and inventive interpretation to meet the shortfall in the current copyright law. Secondly, a series of new ‘guaranteed rights’ may be granted to authors and performers, in order to extend beyond the potential of contractual agreement. Thirdly, a model which combines a strong paternity and integrity right with a partial waiver should be implemented. This model can serves to safeguard the author’s interest in his work without impeding the honest commercial exploitation of the work. Like the strands in a cord, the value of ownership and moral rights lies in its cumulative effect where each different provision taken together may carry adequate and sufficient safeguard to the authors and performers.
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