There was a great debate on last week’s podcast which I took into the LinkedIn discussion fora that I’m involved in.

The question posed was: Should famous authors get longer or better moral rights?

The answer was an emphatic ‘No’.  Here are some of the responses – what would you add?

Martin Suter said:

"Haven’t listened to the podcast, but I’m not sure how you stratify rights based on something as nebulous as "fame". It seems pretty binary to me – individuals have rights to their work or they don’t. The US Constitution suggests that all individuals are created equal, so I’ll side with Thomas Jefferson on this one!"

Brian Corber said:

"I think that it is being argued that copyright protection in the US should be allowed ony for the most valuable works. Another issue: considering the high cost of litigating in federal court in the US, only those with financial rsources can afford to sue for copyright infringement anyway.

Olena Vardamatska said:

"I cannot say about the USA reality, but in general terms, the differentiation of authors to more or less famous would come to same difficalties which the well-known trademark currently have. In terms of equity it sounds more like a discrimination for certain authors rather than a benefit for others.   And prolongation of moral rights apart from the property rights seem to create practical problems as to the simultaneous use of moral rights and the use of the work, which has fallen into the public domain.   Anyway, extention of any moral rights cannot cure the abusive inclinations of certain people, it’s more about their morality, rather than law)

Brendan Way said:

"One could argue that they already do in a de facto manner. As famous authors (even if they are only niche famous, as one of the presenters pointed out) their work has higher visibility, therefore when others trample on their moral rights of integrity, attribution, etc. it is more likely to be brought to the original author (or their successors in interest) attention. Then, in a country like the US that only gives lip service to moral rights (other than limited runs of works of fine art – 106A and state droit de suite laws) the author screams plagiarism (which is almost as good as an injunction if one has been keeping up with news on the topic here in the US) or files the appropriate form of suit in a country that actually adheres to Berne 6bis.

As to Brian’s point, I think that the real problem is that (again in the US) most of the potential copyright claims/lawsuits aren’t viable because the author failed to register their copyright and are therefore inelligible to obtain the statutory relief granted under US law. They are left with pure lost profits which are harder to prove, never mind the fact that what might be considered by someone in a moral rights country as a violation may be considered fair use here in the US.
And for the non US attorneys – post Dastar (a US Supreme Court decision) it *appears* that you can no longer use trademark law (Lanham 43a) – which Congress assured the folks at WIPO would cover the moral rights protections found in Berne 6bis in the Berne Convention Implementation Act "BICA" – no longer applies to copyrights."

Kenneth Kunkle said: "No"

Alan Heimlich said:

"No. The problem is who’s "famous". I’m an author – ever heard of me? Am I famous? My family thinks so."

Christopher Paradies said:

"No. Copyright comes into existence when a work is fixed in a tangible medium of expression. At that moment, the copyrighted work should have the same protections whether the author is famous or unknown. If the unknown artist later becomes famous, there should be no increase in protection offered by copyright laws, whether moral rights or other rights granted by statute."

Sergio Velazquez Vertiz said:

"I haven’t heard the podcast yet but I still believe that it shouldn’t matter if you are "famous" or not. The same protection should be provided to every authors, without any "famousness" element involved.
Furthermore, who is going to determine if someone is "famous" or not? Which elements will be consider?
It’ll be complicated to determine the "famousness" aspect and in certain extend, useless."

 

I said, fine, but what about the right of integrity for authors such as Ghandi (as we discussed in the podcast) – what do you think?