Moral Rights

In previous papers for Ariadne, I have examined some general copyright issues for eLib projects, and copyright problems associated with Electronic Copyright Management Systems. In this paper, I want to look at some of the effects of Moral Rights legislation on electronic library developments.

Moral Rights give the creator of some copyright works, including literary works, artistic works and films, three rights. The first is the right of the author of a work to be acknowledged as the author or creator. The second is the right to object to his or her name being attributed to something he or she did not create. The third is the right not to have his or her work subjected to "derogatory" treatment, i.e. to some amendment that impugns his or her integrity or reputation. This is the most important of the rights and the one I want to home in on, but please don't ignore the other two in anything you do!

It is important to note that authors or creators must choose to assert their Moral Rights (they are not automatic as copyright is), but at the same time, Moral Rights can never be assigned - they remain with the author even if he or she assigned the copyright to a publisher or some other organisation. Therefore, contrary to some of their statements, publishers have no interest whatsoever in Moral Rights. It is also worth noting that in some circumstances, Moral Rights can never exist, e.g. if you are an employee who is paid to create copyright material, you cannot acquire Moral Rights to that material.

Moral Rights are extremely important in an electronic environment - it is extremely easy when downloading material to either omit the original author's name or to cut and paste material in a manner that might be considered derogatory.

Moral Rights and the Electronic Library

There are several ways that Moral Rights issues might arise in an electronic library, and it is important not to trivialise or ignore the issue. The key point to remember is: it may be legal to do something from a copyright point of view but that action may well still infringe Moral Rights and lead to legal action against you!

Consider a few examples:

1. You have an On Demand service whereby certain portions of texts or journal articles have been scanned into a server and are then delivered, in electronic form and/or in printout form, to library users. You have taken great pains to ensure that this service is free of all copyright problems because you have used out of copyright material and/or material created by your own staff who have agreed to this and/or you have obtained the necessary licenses from the copyright owners. Nonetheless, you may be infringing the Moral Rights of the creators because either you fail to mention the author's name in the material you deliver and/or because you are only offering a portion of the original material, this may present a biased view of the author's thoughts on the topic, and is therefore derogatory treatment.
2. You have developed a service whereby you take original material and have added value by inserting a number of WWW links into the text to link this item to other relevant items that the library (or other) user will find useful. Again, you have obtained all the relevant copyright clearances to download the material, and you have done all the added value for yourself. The author may object to these links if they are derogatory. You may, for example, link the author's paper to an organisation's Web page of which he or she disapproves (Church of Scientology home page, tobacco company home page, anti-abortion group home page, neo Nazi group home page , a link to a paper by the author's rival.... Can you be sure the creator will not object to any of the links you have provided?) the creator can, in theory, then sue because you have amended his or her article in such a way as to impugn the author's integrity by associating the article with something of which he or she disapproves. (Message to the Editor of Ariadne: do not link this article to any WWW pages associated with Dr Ray Wall!) [Ed: Who?]
3. You are developing multimedia products and choose to use a short extract from some music, some picture or some moving images. These are either so short you are confident you do not infringe copyright (bit of a risk, but let's assume you are right), or you have permission to take these copies. You still could infringe the creator's Moral Rights by failing to acknowledge the creator by name or because the short extract is derogatory.

These are just three of the ways you can wander into the Moral Rights minefield by accident. The law seems to get you both ways - if you take a portion of item that is such a small proportion you are confident it is not infringement, you are likely to be caught out by the fact that such a small piece is derogatory as it does not give the whole picture of what the creator was trying to say. Notice too, that because Moral Rights can never be assigned, it is quite irrelevant what copyright clearances you have obtained from the copyright owner. You need to ALSO get Moral Rights clearances from the original creator.

So, is all lost? Not necessarily. I suggest you go through the following process:

1. Check the Copyright Act 1988. Some types of works can never be protected by Moral Rights. With luck, the piece you want to handle falls into that heading.
2. Even if the material can be the subject of Moral Rights, such rights must be asserted. Check whether they have been asserted by the creator. (Check the first few pages if this is a book or article and/or ask the copyright owner, whoever it is, who owns the Moral Rights and whether they have been asserted.) If the Moral Rights have NOT been asserted, you are in the clear.
3. If Moral Rights have been asserted, contact the creator, explain what you want to do and ask him or her for explicit permission to do these acts. don't ask the creator to waive his or her Moral Rights; simply ask for explicit permission to do what you plan to do. if the creator says there is no problem, you are safe.
4. If the creator says "no", or does not reply at all, make your own judgement: is what I propose to do likely to infringe Moral Rights? What if I were the creator? Would I be offended? If so, change what you propose to do to something you regard as safe.
5. Remember that it is only worth the creator's while to sue if you have caused them damage to their reputation - rather like libel or slander. So remember the question of what reputation the creator enjoys and how much damage you might cause them. It may not be worth their while to sue you!
6. Make sure you, or your employer, has appropriate liability insurance; ensure that any staff working for you, or people with access to your system are aware of the risks as well. Keep a close eye on what they do, as you could be caught up in any action if it were shown you had been negligent in your control over what they did.

Conclusions

Moral Rights are a potential minefield, and are a nightmare for anyone developing electronic library services. My advice to anyone offering such service that in any way include the amendment, no matter how apparently trivial, to copyright works is: seek expert advice (e.g. me!) before offering the service.

Acknowledgements

This article was triggered off by discussions I had with a number of individuals involved in the SCOPE and Open Journal projects. I am grateful to those individuals.