Study contract concerning moral rights in the context of the exploitation of works through digital
technology
FINAL REPORT
Study contract n° ETD/99/B5-3000/E°28
BY
Mrs Marjut Salokannel and Mr Alain Strowel
with the collaboration of Mrs Estelle Derclaye
April 2000
"This study was commissioned by the European Commission's Internal Market
Directorate-General as part of its study program. It does not, however,
express the Commission's official views. The views expressed and all
recommendations made are those of the authors. Neither the Commission nor the
Consultants accept liability for the consequences of actions taken on the
basis of the information contained in the study."
2
Table of Contents
Table of Contents 2
Introduction : scope of the study 3
I. Overview of the legislation and case law on moral rights in the Member
States 5
Part I. Austria 6
Part II. Belgium 13
Part III. France 25
Part IV. Germany 56
Part V. Greece 72
Part VI. Ireland 78
Part VII. Italy 80
Part VIII. Luxembourg 93
Part IX. The Netherlands 98
Part X. The Nordic Countries 113
Part XI. Portugal 120
Part XII. Spain 128
Part XIII. United Kingdom 138
II. Tables of comparison 154
I - types and characteristics of moral rights 155
II - types of works 170
III. Contractual practices and views of rights holders organizations 185
IV. Influence of digital technologies on moral rights 206
V. Existing differences in moral rights protection in the Member States212
VI. Conclusion : no need for general harmonisation at E.U. level 225
Annexes 227
Bibliography 228
Professional organizations contacted and answers received 239
Positions of the National Governments on moral rights 240
Summaries of the legislation and case law (country by country) 247
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Introduction : scope of the study
According to the terms of Annexes III & IV of the contract n° ETD/99/B5-3000/E/28, the
following parts of the study have been drafted :
- analysis of the disparities in the legislation and case law of the several Member States
concerning the protection of moral rights, in particular with respect to the specific
characteristics of the digital exploitation of works
- establishment of comparison tables describing the Member States’ applicable provisions
in distinguishing between the several categories of works and the type of exploitation
- analysis of the contractual practices affecting the traditional conception of moral rights
- analysis of the influence of new technologies on moral rights
- impact of the differences on the functioning of the Internal market and positions of the
national governments
- necessity of a harmonisation at Community level.
A. Contacts
During the redaction of the study, the following persons have been contacted :
• Mr. Alegrezza, Ministry of Economy, Luxembourg.
• Mr. N. Alessandri, Lawyer, Bologna.
• Mr. E. Arkenbout, Department of Justice, Netherlands.
• Ms. Barthel, Department of Economy, Luxembourg.
• Mr. R. Castilla, Nauta Dutilh, Madrid.
• Mrs. L. Chimianti, SIAE, Italy.
• Mr. Czichowski, Lawyer, Boehmert & Boehmert, Berlin.
• Ms. De Mont-Luc, Department of Culture, France.
• Mr. Dillenz, Austria.
• Mr. R. Foglia, External counsellor of the Government, Italy.
• Mr. N. Gonçalves, Department of Justice, Portugal.
• Mr. F. Gonzalez, Nautadutilh, Spain.
• Ms. S. Greene, Intellectual Property Unit, Department of Trade, Enterprise and Employment,
Ireland.
• Mr. Günter Auer, Ministry of Justice, Austria.
• Mr. A. Haller, Lawyer, Vienna.
• Mr. P. B. Hugenholtz, University of Amsterdam.
• Mr. Illardi, Collection of Laws (CLEA database), WIPO.
• Ms. M. L. Janota, Parliament, Austria.
• Ms. Jean-Prost, WIPO.
• Mrs. Kallinikou, Director of the Copyright Organisation, Greece.
• Mr. R. Knights, The Patent Office, Copyright Directorate, United Kingdom.
• Ms. Levaillant, Department of Justice, France.
• Mr. Lopes Rocha, Portugal.
• Ms. C. Morel, Nauta Dutilh, Amsterdam.
• Mrs. Rodriguez-Torqueros, Department of Justice, Spain.
• Mr. Schöfisch, Referat Urheberecht, Berlin.
4
• Ms. A. Schulz, Bundesministerium der Justiz, Referat III B 3, Regierungsdirektorin,
Germany.
• Mrs. Sullivan, Copyright Directorate, United Kingdom.
• Mr. Tacq, Department of Justice, Authors' right section, Belgium.
• Mr. A. Whiteford, The Patent Office, Copyright Directorate, United Kingdom.
B. Web sites of interest
http://map.es
http://www.dlr.de/bmbf
http://www.etat.lu/EC
http://www.giustizia.it/
http://www.krol.it/giuristicattolici/Links.htm
http://www.overheid.nl
http://www.parlamento.it/
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I. Overview of the legislation and case law on moral rights in the
Member States
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Part I. Austria
I. Legal framework
II. Analysis of the different moral rights : characteristics
III. Restrictions on moral rights protection as regards certain work categories and certain
categories of rights holders
IV. Alienability and waiver of moral rights
V. Duration of moral rights protection
I. Legal framework
The Austrian Copyright Act (Federal Act on Copyright in Works of Literature and Art and on
Related Rights of 9.4.1936) was last amended by the Amending Act of March 29, 1996 which
entered into force on April 1, 1996. This Act implements the European Directives on computer
programs, rental and lending rights, cable and satellite and term of Protection. The database
Directive has been implemented in November 1997, and entered into force in January 1998.
II. Analysis of the different moral rights : characteristics
Austria has opted for the monistic approach to author’s rights. “Moral rights are distinct from
exploitation rights, but following the monistic approach of the Austrian Copyright Act, an action
may violate both the exploitation right and the moral right.”1
1. The right of disclosure
“The author has the exclusive right to decide whether, by whom and how his work will be made
accessible to the public (right of publication).”2 This right is not expressly cited in the statute,
because it is included within the so-called ‘rights of utilisation’. Indeed, through the
authorisation of communication, the author uses his publication right.3
2. The right of attribution
a. Legislation
The right of authorship and the right to claim credit are defined in art. 19 and art. 20 UrhG. The
author has an unwaivable right to claim authorship if such authorship is challenged or if the
1 W. DILLENZ, 'Austria', in S.M. STEWART, International copyright and Neighbouring rights, 2d ed., Vol 2,
Butterworths, 1993, Explanatory notes, Materialen, n°2, 78.
2 G. KUCSKO, ‘Austria’, in Intellectual property Laws of Europe, G. Metaxas-Maranghidis, Stanbrook and
Hooper, Brussels, New York, NY, Chichester : John Wiley, 1995, p. 43. “Veröffentlichungsrecht”.
3 R. DITTRICH & G. KUCSKO, Urheberrecht, 1981, p. 20.
7
work is attributed to another person. The author enjoys this right during his life, even if the term
of protection (which is to be calculated from the moment of publication) has expired.4
The author also has the right to decide whether an author’s designation is to be affixed to the
work and if so, which.5 This means that he has the right to decide to remain anonymous,
choose a pseudonym or use his real name or an abbreviation in connection with his work (art.
20, § 1). As regards photographs, the author must affix a notice on the photograph himself to
be identified as the author (art. 74 §3). The author’s right does not protect against the false
attributions of the work by someone else, but the rules of personality rights apply in this case.
An adaptation must no be credited with the name of its author in a way that will give the
impression that it is an original work (art. 12, § 2).6 In like manner, a copy of a work of the
graphic or plastic arts must not be credited in a way that creates the impression that this is the
original (art. 20 §3).
b. Case law
An author could object to the non-designation of his name on a book of illustrations for
children.7
3. The right of respect or right of integrity
a. Legislation
The holder of the economic rights cannot alter the work, its title or the author’s designation,
when he makes it accessible to the public or reproduces it for the purpose of distributing it,
unless either the author has given his consent or it is permitted by law (art. 21).8 Art. 21, §1
does not imply that the author who has transferred the right of exploitation, has also transferred
the right of modification. Conversely, when the author has expressly permitted modifications of
his work (even in general terms), he can only forbid modifications which seriously harm his
moral rights (art. 21, § 3). The right of integrity also applies when the work is made available to
the public by anyone not bound by contract. Users must respect the work even if the use of the
work is free (art. 57 § 1). For original works of the graphic and plastic arts, the right of integrity
is stronger in the sense that even when the use is private, persons must respect the integrity of
the work (art. 21, § 2.)
However, modifications are allowed under the principle of fair use, especially such
modifications which are appropriate to the manner or the purpose of the authorised exploitation
of the work (art. 21 § 1).9 Modifications are not allowed when they distort the meaning or the
essence of the work. In addition, someone who communicates the work to the public or
prepares copies to diffuse them, except for works from the plastic arts, cannot make
modifications to the originals, when the work has not been disclosed (art. 20 al. 2).
b. Case law
4 J. AICHER, ‘Österreich/I’, in MÖHRING, SCHULZE, ULMER, ZWEIGERT, Quellen des Urheberrechts,
1991, p. 29.
5 G. KUCSKO, ‘Austria’, Intellectual property Laws of Europe, 1995, p. 43.
6 R. DITTRICH, 1981, p. 21 See also W. DILLENZ, in S.M. STEWART, 7 Moral rights, n° 3.40. See also,
J. AICHER.
7 OGH Wien, July 1, 1986, Weihnachtslieder, GRUR Int., 1987, 262.
8 G. KUCSKO, 1995, p. 43.
9 See DILLENZ, ‘Austria’, in S.M. STEWART, § 3.41.
8
Modifications are allowed only when the author agrees or when the law permits it.10 The use
of a work for promotion or advertising purposes requires the permission of the author according
to art. 21.11 The right of integrity protects against modifications to the title of a work.12 Fair
use can justify modifications, for instance, “the shortening of a letter to the editor of a journal
falls under fair use.”13 Changes in the script of a TV play infringe the right of integrity.14 To cut
a painting (landscape) to change it from oblong format to upright format (portrait) was
considered to violate the integrity right.15 In a recent case, where mostly damages were
discussed, a broadcasting organisation had infringed the right of attribution and integrity of two
photographers by filming their photographs without mentioning their names and by not showing
the frames and texts which surrounded their photographs.16 An author is allowed to prohibit the
modification (size reduction, change of the space between letters and addition of a 3D effect) of
his copyrighted logo.17
4. The economic right of adaptation
The translation is in any case permitted.18 However, “the author of a translation or another
adaptation may use it in the manner reserved to him only to the extent permitted by the author
of the adapted work.”19.
5. The right to retract
This right to retract does not exist in Austrian law.
10 OLG Wien Sept. 21, 1989, MEDIEN + RECHT, 1990, 61.
11 W. DILLENZ., ‘Austria’, in S.M. STEWART, n° 3.4.
12 OLG Wien 6 dec. 1984 MEDIEN + RECHT, 1985/2 Archiv 13.
13 W. DILLENZ, ‘Austria’, n° 3.41. OGH 10.11. 1970, ÖBl 1971, 112. See also, Supreme Court, March
19, 1937, Angriff gegen Unternehmen SZ 19/102. For the modification of a work's title, see Court of
Appeals of Vienna, Dec. 6, 1984, Ephraim Kishon, MuR 1985/2 Archiv 13 (Korn).
14 OGH 3.10.1972, C'est la vie, ÖBl 1973, 112.
15 Court of Appeals of Vienna, Sept. 21, 1989, Mount Rainier MuR 1990, 61.
16 Obersten Gerichtshof, May 26, 1998, GRUR Int., 1999, Heft 2, p. 183.
17 OGH, June 22, 1999.
18 R. DITTRICH, 1981, p. 16.
19 G. KUCSKO, 1995, p. 43.
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6. The right of access
The right of access (art. 22) can be exercised by the author as long as it is necessary, to make
reproductions of the work. In so doing the author must take into consideration the in interest of
the owner. The owner must therefore make the work accessible to the author so that he can
make reproductions. The owner is nevertheless not obliged to return the work to the autor in
order for him to exercise his right of reproduction. Nor is the owner obliged to keep the work in
good condition.
III. Restrictions on moral rights protection as regards certain work categories
and certain categories of rights holders
1. Audio-visual works
Audio-visual works are works of collaboration (art. 11 al. 3).
1.1. The right of attribution
a. Legislation
In the case of cinematographic works, the producer has the right to be credited as a producer
(art. 38, § 2). But the real author of the film keeps his right to be named as the author of the film
(art. 39). In addition, “any person who has participated in the creation of a commerciallyproduced
cinematographic work in such a manner that the overall nature of the work may be
deemed to constitute an individual intellectual creation, may demand of the producer that he be
named as an author in the film itself (and in the advertising of the movie).”20
“In areas where commercial interests conflict with the moral rights of authors such as in the
case of commercially-produced photographs, the producer may replace the person who took
the photograph.” (art. 74) 21
b. Case law
The mention “ ‘photography and editing’ were done by such person” does not amount to
designation, so that the consent of the authors is not required to change this mention.22
1.2. The right of integrity
a. Legislation
“Any change in the cinematographic work, its title or the designation of authors, which under
art. 21 is permissible only with the author's consent, requires the authorisation of the authors so
designated (art. 39 (4)).”23
b. Case law
The consent of the author is needed to cut scenes of a movie which provoked street
demonstrations.24 In a recent case, the highest court decided that the shortening of a movie
20 R. DITTRICH, 'Letter from Austria', Copyright, 1991, p. 166-167. See e.g. Supreme Court, May 8,
1990, Wien zum Beispiel MuR 1990, 189 (Walter). Furthermore, only the authors who are listed in the film
credits can benefit from the 'reduced' moral rights.
21 W. DILLENZ, ‘Austria’, n° 3.40.
22 OGH May 8, 1990, MR 1990, p. 189 (with note Walter).
23 R. DITTRICH, 'Letter from Austria', Copyright, 1991, p. 166.
24 OGH, 11.2.53, Im weissen Rössel, ÖBl 1953, 20.
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by the broadcasting organisation without the author’s consent and the showing of this movie as
such, was a violation of the right of integrity of the director and of the author of the script.25
2. Works of collaboration
a. Legislation
Collaboration works can take two forms : “Miturheberschaft” and “Teilurheberschaft” (art. 11).
“Miturheberschaft” (or joint authorship)26 means that a work is made by several persons
together and is indivisible. In this case, the author’s right belongs collectively to all authors.
Every joint author has the right to act against violations of his rights (art. 11 al. 2). An
agreement between all joint authors must be concluded to enable modifications or uses of the
work. If one of them refuses to agree without good reason, the other co-authors can act against
him.
There is “Teilurheberschaft” when the work is not indivisible. Authors must come to an
agreement on the uses of the work. However, the author of the texts can use his work as pure
literary work and the composer can use his work without words as a pure musical work, without
the others’ consent.27 Movies are classified in the category of indivisible works of collaboration
(“Teilurheberschaft”) (art. 11 al. 3).
b. Case law
The co-operation of a lyricist/librettist of an operetta and a composer does not necessarily
constitute joint authorship.28 Similarly, subsidiary activities such as researching the material
for a work which does not lead to independent intellectual co-operation is not a work of joint
authorship.29
3. Performers moral rights
Moral right of performers are less comprehensive than those of authors. They mainly consist of
the right to demand a mention of their name on the work to which their neighbouring rights
relate.30 The right to claim credits is reduced (art. 68).
IV. Alienability and waiver of moral rights
The principle is that author’s moral rights are not transferable between living persons and
cannot be waived31. Moral rights are transferable to heirs (art. 23). If the author transfers one
of his economic rights, he nevertheless keeps the moral rights.32 Indeed, the author can
authorise some persons to exploit his economic rights (art. 14-18) but not his moral rights (art.
19-21).
25 Obersten Gerichtshof, Nov. 10, 1998, “Den Kopf zwischen den Schultern”, GRUR Int., 1999, Heft 6, p.
553.
26 W. DILLENZ, ‘Austria’, n°6 ‘Ownership and transfer of rights’.
27 J. AICHER, p. 19.
28 OGH May 31, 1937 SZ 19/1979.
29 OGH April 25, 1951 SZ 24/112.
30 G. KUCSKO, 1995, p. 44.
31 Art. 23 al. 3 states that author’s rights are untransferable except in cases provided in art. 23 al. 1 and 2.
32 R. DITTRICH, 1981, p. 22.
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However, according to art. 19 to 21, moral rights can be exercised by collecting societies
insofar as it is necessary to the efficient exercise of the “utilisation” rights also transferred and
administered by this society (i.e. economic rights).33 The collecting society can give the
authorisation to utilise the work only under the author’s name (thus respecting art. 20). This
means that the designation is not a separable element of the contract on the utilisation right.
The society can also act on behalf of the author to object to any violation of his authorship right.
In this regard, the society will not exercise a right that has not been transferred without material
(existent) legal relationships. The authorship right is included in the utilisation rights that the
author has transferred to the society.34 This is due to the monistic approach to authors’ rights.
V. Duration of moral rights protection
As Austrian Copyright law is monistic, the moral rights should expire at the same time as moral
rights and should not be perpetual. Thus the protection ends 70 years after the author’s death
(art. 60). The author can enjoy the protection of rights stated by art. 19 and 21 §3 during his life
time, even if the term of protection is extinguished (art. 65). The author can act exclusively
during his life time against deformation and mutilation (art. 21 al. 3).35 After his death, the right
of attribution can be exercised by his heirs. As regards the performer’s right to be mentioned, it
never expires before the death of the holder of exploitation rights. After the death of this right
holder, the right subsists and passes to the next right holder of the exploitation rights (art. 68).
There is an exception to this rule for persons who interpret music in choirs or orchestras.
33 OGH July 1, 1986, GRUR Int. 1987, 262 = Jbl. 1986, 780, Öbl 1986, p. 162 = MR 1986, n° 5, p. 14
(Walter)
34 Same. See also, R. DITTRICH, 'Lettre d'Autriche', Le Droit d'Auteur, 1987, p. 179.
35 J. AICHER, p. 30.
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Summary
Legislation is monistic. No rights of disclosure, retract nor access. Right of attribution is simple (claim
authorship, remain anonymous or pseudonymous). Right of integrity is not very detailed either. Moral rights
are not transferable nor waivable. There seems to be no exception to this rule.
From the scarce Austrian case law, it seems that generally courts recognise violations quite frequently
and it does not appear that courts make a balance of interests. Therefore, it seems to be rather
protective of authors. When one analyses the case law in the light of specific problems of free circulation
of works, the rather protective tendency could in a speculative manner have an impact on the internal
market. To give an example based on the cases above mentioned, if a picture was changed from oblong
format to upright format in Germany and was legal there, if the work is imported in Austria, the author
could easily get a court ruling blocking the entry of such modified works in Austria. However, this does
not prevent the original work from circulating freely in the Community.
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Part II. Belgium
I. Legal framework
II. Analysis of the different moral rights : characteristics
III. Restrictions on moral rights protection as regards certain work categories and certain
categories of rights holders
IV. Alienability and waiver of moral rights
V. Duration of moral rights protection
VI. Relationships between moral rights protection of authors and of performers
I. Legal framework
The legal framework in Belgium is constituted of several statutes : the main Copyright Act is the
Copyright and Neighbouring rights Act (Loi relative au droit d’auteur et aux droits voisins) of
June 30, 1994 (LDA) to which must be added the Act implementing the Directive of May 14,
1991 on the legal protection of Computer Programs of June, 30 1994 (LPO).36 Finally, the
Belgian legislator has also recently implemented the Directive on the Protection of Databases
of March 11, 1996 partially in the LDA and partially in a new Act of August 31, 1998, which
entered into force on November 14, 1998 (LBD). All five directives relating to copyright and
neighbouring rights have thus been implemented into Belgian law.
36 A recent executive order of the Walloon Region (July 4, 1998) requires that all regional civil servants
waive their moral rights of disclosure, attribution and integrity. The terms of the order are so general that
he can be reasonably assumed that they violate the Copyright Act and should not enforced. For a
comment, see V. CASTILLE, ‘Arrêté du Gouvernement wallon violant les dispositions du droit moral, I.R.D.I.,
1999, p. 85.
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II. Analysis of the different moral rights : characteristics
Belgian law reflects the dualistic view of author's rights. Moral rights are protected through art. 1
§2 of the Copyright Act (LDA).
1. The right of disclosure
a. Legislation
The right of disclosure has a positive and negative aspect : on the one hand, it can be defined
as the right of the author to decide when his work is completed and when he wishes to disclose
it to the public.37 On the other hand, even if the work is completed, he can still choose not to
disclose it.
Negatively, or conversely, the right of disclosure prohibits third parties to disclose the author’s
works to the public without his authorisation. Even if the author disclosed his work, the editor
cannot exploit the work without an agreement on the exploitation (contract of alienation of
rights). The will to disclose can be presumed in certain circumstances (e.g. deposit of the
author’s work at a collecting society).
Exhaustion
When the author gives his consent to publish the work on a medium, he exercises his right of
disclosure for that particular medium only. If the publisher wants to publish the work on another
medium, he needs the author’s authorisation (for example, if a work is only to be published on a
CD-ROM, then the publisher needs another authorisation if he wants to publish it on the
Internet).38 In this sense, it can be said that the right of disclosure is not exhausted with the
first means of disclosure.
The non-exercise of the right of disclosure has a patrimonial effect : as long as a work is not
disclosed or is not ready for sale or publication, creditors cannot take hold of it (art. 1, §2, al. 4
LDA). The majority of commentators agree that the theory of the ‘abuse of right’ can be applied
to the refusal to disclose and to other moral rights39.
b. Case law
The right of disclosure of an unpublished work belongs exclusively to the author or to his/her
heirs, after his death. A collecting society cannot grant this right, of its own initiative.40
37 See e.g. Brussels, Feb. 4, 1988, RIDA, 1988, 137, p. 91.
38 B. LIPS, D. VILARS, A.MAQUA, J. FOLON, Du numérique au multimédia, Aspects juridiques et
commerciaux, Ministère de la Région Wallonne, DGTRE, 1998, p.107.
39 Civ. Anvers (réf)., Dec. 19, 1966, J.T., 1967, p. 224 (about the representation of Les Mains Sales from
J.P. Sartre, the theory of ‘abuse of right’ is not per se excluded in the field of moral rights). The judge did
not rule on the abusive exercise of any right in this decision but merely stated this opinion as a sort of
‘obiter dictum’ so that in Belgium there is no case law on this issue yet.
40 Civ. Brussels, (réf.), Feb. 9, 1996, ASBL Promo v. SABAM, A & M, 1996, p. 413.
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2. The right of attribution
a. Legislation
The right of attribution or attribution is the right for the author to decide to publish his work
under his name, to do so under a pseudonym or to remain anonymous (art. 1 §2, al. 5 LDA).41
Conversely, he also has the right to let someone else sign his work. The author can also object
to false attributions.
The law sets forth a rebuttable presumption of authorship in favour of the person whose name
appears on the work (art. 6 al. 2 LDA). This rule also applies in favour of the publisher whose
name appears on an anonymous or pseudonymous work (art. 6 al. 3 LDA). The anonymous or
pseudonymous author can reveal his identity at any time (art. 6 al. 3 LDA). In this latter case,
the presumption in favour of the publisher does not apply, as this presumption is only valid
towards third parties. This means that the author “remains the author” in his relation with the
publisher.42
b. Case law
The Court of Cassation, in a case involving an architectural work, has decided that the right of
attribution does not give the author a positive right to sign his work43. For the Court of
Cassation, this 'right of affixing' derives from the property right, not from the author’s moral
right. The architect can only affix his signature with the owner’s consent. The consequence is
that the author could only claim the right to prevent the affixing of a false name.
In another case, the National Lottery was condemned for having reproduced several elements
of some of Magritte's paintings on lottery tickets without mentioning his name.44 The editor of
a CD has no right to be mentioned on the CD if the work is not anonymous. The presumption
does not work in this case. The artists remained owners of their moral rights.45 In the
AGJPB46 v. Central Station case, the district court found a violation of the right of attribution of
the journalists because Central station did not mention their name in the electronic diffusion of
their articles.47
41 Cass. May 22, 1980, R.D. Intell., 1981, p. 354 (allowing Ms. Forani to sign with Dali because she
collaborated to the realisation of the work with him); Brussels, March 29, 1991, Rechtskundig Weekblad,
1991-1992, p. 814 (recognises the right of the author to be mentioned on the reproduction of a
photograph).
42 A. STROWEL & J.P. TRIAILLE, Le droit d’auteur, du logiciel au multimédia, 1997, p. 26.
43 Cass., Jan. 16, 1941, Pas., 1941, I, p. 11 (concerning the right for an architect to affix his name on the
building : the consent of the promoter is required).
44 Sept. 9, 1994, RIDA, n° 163, p. 190, confirmed by Court of Appeals f Brussels, Apr. 18, 1997, SABAM
& C. Herscovici v. Loterie Nationale, RIDA, n° 174, 1997, p. 201.
45 Pres. Trib. First Instance, Brussels, cess., Aug. 5, 1999, Buy My Record & Deprijck v. AMC & EMI
Group Belgium (Viktor Lazlo case), Ing.-Cons., n° 7-8, 1999, p. 484.
46 Association of Journalists. Central Station was a company which put the journalists’ articles on the
Internet without their consent.
47 AGJPB et al. v. SCRL Central Station, A & M, 1996/4, 426; confirmed by Court of Appeals of Brussels,
9th ch., Oct. 28, 1997, A & M, 1997/4, p. 383.
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3. The right of respect or right of integrity
a. Legislation
The right of respect gives the author the right to object to “any distortion, mutilation, or other
modification of, or other derogatory action in relation to the said work.” This right gives him the
power to prevent anyone from modifying his work, even if he alienated his economic rights.
The respect of the author’s work means that no one can change the title, shorten the work,
carry out cuts, interrupt a movie with adverts, etc. Any modification, be it material or intellectual,
without any limitation is within the scope of the law. The Belgian Copyright Act does not add
the phrase - “that would prejudice his honour or reputation” - so that the author need not prove
a prejudice to get compensation for derogatory action. The author does not have the burden of
proof. The only case in which the author must prove a prejudice to his honour or reputation is
the case in which the work has been moved out of its context or environment.
Destruction
The author can object to the destruction only of the original work and not of the copies, e.g. he
can object to the destruction of his manuscript or his sculpture48, or the negative of a or master
copy of a film (art. 16 al. 3 LDA)49.
b. Case law
First of all, case law anterior to the new Act, deciding that no proof of prejudice is necessary, is
still valid as it is conform to the new Act's provisions.50 There can be a violation of the integrity
of the work even in the case there is no material harm. In this sense, one cannot modify the
spirit of a play (light, easy-going) into some kind of drama which aims at criticising a frivolous
society.51 There is no violation of the right of respect when a broadcasting organisation shows
works (photographs) of an author (with the consent of the author or heirs), accompanied by
comments on his life (the author had been a collaborator during the Second World War). The
fact that the broadcasting organisation recalls facts of the author’s life is not a violation of his
personality either.52
The modification of a logo (i.e. a work of the applied arts) protected by copyright, without the
author’s consent, and unjustified by technical necessity or usefulness, violates the right of
integrity.53 It is interesting to note that here the judge makes a balance of interests while the
legislation does not require it.
There is a infringement of the integrity right if an article is reproduced without the footnotes.54
48 For a sculpture, see e.g. Paris, May 14, 1974, R.T.D.Co., 1976, p.351, n° 4.
49 This view prevails even if the LDA 94 does not stipulate it expressly. See C. DOUTRELEPONT, p.
278.
50 Brussels, June 8, 1978, Tintin en Suisse, J.T., 1978, p. 619. (Publication of comics with Hergé’s
characters in a completely different context).
51 Brussels, Sept. 29, 1965, La Veuve Joyeuse, J.T., 1965, p. 561 et obs. Corbet.
52 Prés. Civ. Brussels, (réf.), Dec. 17, 1997, A & M, 1999, p. 227.
53 Civ. Tournai (1re ch.), Sept. 8, 1997, P. Duchêne and S.P.R.L. Bureau de Création graphique v. S.A.
Yplon, A & M, 1998, p. 145 (emphasis added). The court bases her reasoning on A. BERENBOOM, Le
droit d’auteur, 1984, p. 129.
54 Civ. Brussels (cess.), Nov. 6, 1995, Uyttendaele e.a. v. P. Sessler, A & M, 1996, p. 147.
17
An editor, who publishes a comic strip presenting it as being the following of a series of the
previous albums of a deceased author who did not express the wish that someone else carries
on his work, infringes the author's right of integrity. In the present case, the front and back
covers did not allow the reader to realise that the deceased author was not the author of the
new album. There was then a confusion or a false identity of the author's work which caused
an infringement of the right of respect.55 In the Magritte case, mentioned above in the
attribution right, the National Lottery had also distorted the works by fusing the elements of the
paintings together into a sole image and by associating them with a game of chance.
4. The right of adaptation
In Belgium, the economic right of adaptation covers diverse types of adaptations : derivative
works, translations, adaptations in a different "genre".56
Derivative works
Derivative works consist of translations, compilations, anthologies, variations, adaptations of
musical works. Art. 1 §1, al. 2 LDA provides that authors of these new works are considered
authors, having the same rights than the original author on the original work. The original author
has rights on works derived from his but he is not a co-author of the derivative work.
Adaptations are generally composite works.57
Translations
There is no need for authorisation to translate a work (art. 1 §1, al. 2 LDA). The translator must
be faithful to the original version of the work. However, the translator can choose words and be
creative. He will be considered an author (with economic and moral rights) of his translation58.
55 Civ. Brussels (réf.), Oct. 17, 1996, Fondation E.P. Jacobs v. Les Editions Black et Mortimer, A & M,
1996, p. 430.
56 This right is included in the right of reproduction and does not exist as such, apart for computer
programs, where the Act on the protection of Computer Programs (LPO) separates it from the right of
reproduction.
57 See below.
58 For more, see A. BERENBOOM, Le nouveau droit d’auteur, 1995, n° 76.
18
Adaptations
The adaptation in a different "genre" requires the original author's authorisation (e.g. if
someone wants to adapt a novel into a movie). The right of adaptation raises the question of
distortion. The author of the original work must admit that the adapter can have his own view of
the work, but the adapter cannot distort the original work. This limit is difficult to draw and
appreciation is often subjective.
Adaptation and multimedia works
Two types of adaptations are possible :
- transfer on a new medium of a work initially conceived on another medium without creating a
new work (e.g. zoom, size reduction, cuts, samples...).
- creation of a derivative work (e.g. create an animation from original drawings). In addition of
being an adapted work, the work will be transformed through interactivity as the user (not only
the author of the derivative work) is able to modify the multimedia work. Problems of moral
rights (especially with respect to the right of integrity) will raise.
5. The right to retract
This right does not exist in Belgium. The reasons are that such a right would be contrary to the
principle of the "convention-loi" (the principle under which one is bound by a contract and
cannot withdraw from it unilaterally). This means that the right of disclosure is exhausted with
the first exercise that the author makes of it (in a particular medium). If however, the author
decides to retract, civil law allows the contracting party to have the author replaced or to obtain
the execution of the author's obligations.
6. The right of access
The author has a right of access in a reasonable measure to exercise his economic rights only,
e.g. in order to take photographs of his painting to be able to sell reproductions (art. 3 §1 al. 3
LDA). The fact that the law says 'in a reasonable measure' puts a boundary that judges will
have to set by weighing the different interests in presence59.
7. Classification of authors rights in different categories - relationships between economic and
moral rights
It is important to note that a decision of October 17, 1996 states that ‘it seems to be impossible
to make a balance between moral and economic rights and that moral rights prevail’.60
59 C. DOUTRELEPONT, p. 359.
60 Civ. Brussels (réf.), Oct. 17, 1996, Fondation E.P. Jacobs v. Les Editions Black et Mortimer, A & M,
1996, p. 430.
19
7.1. Relation between the rights of adaptation and integrity
The difference between the rights of integrity and of adaptation is that one right is moral, the
other, economic. One is attached to the author’s personality, the other is not. Therefore, one
cannot be granted by contract and can only be exercised by the original author while the other
can be transferred by contract and exercised by someone else than the author, which can be a
legal person. Yet a correlation can exist between these two rights. Indeed if the author waives
his economic right of adaptation, it can be implied that he waived the exercise of his right of
integrity as to the specific parts of the right of adaptation he conceded. A contract by which the
author gives his consent to adapt the work does not allow the contracting party to change the
essence of the work (religious, artistic, philosophical)61, the type of the work (comedy,
drama)62, the psychology of the characters63 or material elements of the work (the historical
framework, the characters' names) 64.
7.2. Relation between the rights of disclosure and of communication to the public
The right of disclosure is a moral right. The right of communication to the public is an economic
right. These two rights are clearly distinct in Belgian law. The author has first to disclose the
work to the public for it to be communicated to the public. As said previously, even if the author
disclosed his work, the editor cannot exploit the work without an agreement on the exploitation
(contract of alienation of rights).
III. Restrictions on moral rights protection as regards certain work categories
and certain categories of rights holders
1. Software
1.1. The right of disclosure
Only economic rights can be alienated to the employer. Thus moral rights remain in the realm
of the author’s power. The author can partially waive his right of disclosure65. But it is
controversial whether the right of disclosure really belongs to the author of the software
because art. 4 of the LPO stipulates that article 6 bis of the Berne Convention applies and not
Belgian law, and the Berne Convention does not provide for the right of disclosure66.
Moreover, the legislative preparatory materials confirm the legislator’s intent to institute only a
minimal moral rights regime.
1.2. The right of attribution
There is no difference with other types of work; the general provisions of LDA apply.
61 F. VAN ISACKER, De morele rechten van de auteur, Bruxelles, Larcier, n° 165.
62 F. VAN ISACKER, n° 165.
63 F. VAN ISACKER, n° 165.
64 A. STROWEL & J.P. TRIAILLE, 1997, n° 565, p. 434.
65 C. DOUTRELEPONT, p. 200.
66 A. STROWEL & J.P. TRIAILLE, 1997, p. 165. For authors who think that the right of disclosure applies
for programmers, see F. BRISON et J.P. TRIAILLE, La nouvelle loi sur la protection des programmes
d'ordinateurs dans le sillage de la loi sur le droit d'auteur, J.T., 1995, p. 143. Authors who hold the
opposite opinion : A. PUTTEMANS , "Au bout du droit d'auteur : la nouvelle protection juridique des
programmes d'ordinateur", RDC, 1995, 766-787 (see p. 775); A. STROWEL, La loi belge du 30 juin 1994,
sur les programmes d’ordinateur : vers un droit sui generis, RIDA, Apr. 1995, N° 164, p. 201.
20
1.3. The right of integrity
The right of integrity is less strong than the right conferred to other works because it is limited to
instances of prejudice to honour or reputation (Art 4. LPO).
1.4. Characteristics of moral rights
The relationship between the special and the general Acts is at stake in respect of this
question. Indeed, this question remains controversial because the special statute on programs
(LPO) refers to Berne which gives less protection while the general law (LDA) more protection.
Berne does not say a word on the alienability of moral rights but does not prevent Contracting
Parties to provide that authors can alienate their moral rights, temporarily or permanently67. In
conclusion, the two moral rights of attribution and integrity are alienable and it is possible to
waive them even globally.68
2. Audio-visual works
Audio-visual works are a species of works of collaboration (art. 14 LDA).
2.1. The right of disclosure
Authors can exercise their moral rights only when the audio-visual work is completed (rule of
the “final cut”) (art. 16 al. 2 LDA)69. The work is completed when the main director and the
producer come to an agreement as to the final version. Therefore if there is no agreement, the
work cannot be disclosed. The right of disclosure thus belongs to the director and the producer
in common (it is interesting to note that the producer is in theory not a person which could
exercise any moral rights because he is not an author; in this sense, Belgian law has given de
facto a disclosure right to the producer70).
If one of the authors of an audio-visual work cannot or does not want to complete the work, he
cannot object that his work is being used to complete the audio-visual work (art. 15 LDA). Thus
the producer can employ another author to have it completed.
67 A. STROWEL & J.P. TRIAILLE, 1997, p. 166-167.
68 A. STROWEL, ‘La protection des programmes d’ordinateurs, loi belge, directive européenne et droit
comparé’, in Le droit des affaires en évolution, 7ème journée du juriste d’entreprise, Bruylant, Bruxelles,
Kluwer Antwerpen, 1996, p. 153.
69 In France, see L. 121-5 and in Spain, art. 93 §1.
70 G. VAN BOSSTRAETEN & T. VANHYFTE, 'II. Authenticity of authorship and work, Belgium’, in
Copyright in Cyberspace, ALAI Study days, Amsterdam, 4-8 June 1996, p. 187.
21
2.2. The right of attribution
The rule of the “final cut” applies : only after the work is completed can an author exercise his
right of attribution.
2.3. The right of integrity
a. Legislation
Again, under the rule of the “final cut”, the author can exercise his rights of integrity only after
the completion of the work. In other words, authors can exercise their right of integrity at the
exploitation phase. However, this rule is softened by the correlative rule that unless otherwise
provided by contract, the author can use his contribution to exploit it in another genre, in
respect of the rules governing "collaboration works". This means that the author can exploit his
contribution as long as it does not prejudice the common work (art. 5 al. 2 LDA).
b. Case law
A modification of an audio-visual work without the author’s consent, after the work has been
completed, is a violation of the right of integrity. The president of the Tribunal of First Instance,
must command the defendant to stop this violation.71
3. Works of collaboration and composite works
Works of collaboration
The legal regime of collaboration works is important in respect of multimedia works, as
collaboration works tend to generalise in the field of multimedia.72 Two conditions are required
to have a collaboration work : several natural persons and a common programme or inspiration.
Art. 4 LDA suggests co-authors to have a contract between themselves regulating the way they
wish to exercise their rights. This article applies to moral rights also (art. 4 in fine).
If the work is indivisible, economic rights must be exercised in common. The statute however
says that any of the authors can act individually against any violation of his author's rights and
ask damages. If the work is separable, the same regime applies. The co-author cannot
however, after the work's completion, use his contribution in another work (art. 5 LDA). Yet the
author can exploit his contribution separately if it does not prejudice the work of collaboration.
If there is no convention between the co-authors, the decision vests in the judge. For instance,
the judge can decide that the work can be published even if one of the authors refuses
(interfering with the right of disclosure of one of them); he can decide that the name of some
authors be omitted on the work (interfering with the right of attribution); he can authorise the
contracting party to replace one of the authors by another and have the work completed by
another person (interfering with the right of integrity).
Composite works
Composite works are works composed of several pre-existing works without consultation or
collaboration between the authors. In other words, the composite work is a sort of melting-pot
71 Tribunal of First Instance, Bruxelles, (réf.), Feb. 21, 1997, Luc Janssen v. N.V. ERA Films, A & M,
1997, p. 223.
72 See A. STROWEL & J.P. TRIAILLE, 1997, p. 24-25.
22
of previous works which forms a new one. The author of the new work will have to respect the
moral rights of the authors of pre-existing works.
The category of collective works does not exist in Belgium.
5. Performers moral rights
Artists or performers have limited moral rights compared to moral rights of authors (they lie
closer to rights of personality than moral right of the authors) (art. 33 and 34 LDA).
5.1. The right to have their name mentioned
Firstly, the mention must conform to the “loyal professional practices” of the sector (e.g. the
name of the artists is not always mentioned on the adverts of a movie). Secondly, this right
gives them the power to object to any "inexact attribution".
5.2. The right of respect
The right of integrity is limited in two ways. Firstly, it is limited by the author's rights (the
performer’s claim cannot go against the rights of the author) and secondly, it is limited by the
fact that the performer can only object to a violation prejudicial to his honour or reputation. For
instance, the performer cannot object to cuts in his performance because it is the author's
power to decide how to disclose the work. He cannot object to the dubbing of his voice unless
otherwise agreed (art. 36 al. 1 LDA). However, a performer can object to the dubbing of his
voice if he has not been warned and if this dubbing is prejudicial to his reputation.73 Like the
author, the performer can limit by contract the exercise of his rights.
IV. Alienability and waiver of moral rights
The Act provides that moral rights are inalienable. "The global waiver of the future exercise of
moral rights is void" (art. 1, § 2, al. 1). In other words, the author cannot renounce to exercise
his rights in advance globally or generally. This also implicitly means that a precise and limited
waiver is possible. This means that the author cannot alienate definitely his rights but he can
grant the exercise of part of them or in other terms, renounce to exercise them. For instance,
the author can make a star sign the book even if it is not the star but him who wrote the book or
the architect can let the owner modify the house he has designed74. Another example is that
the author cannot accept to never exercise his disclosure right. He cannot renounce to
exercise it before the work is completed.75 A special mandate to exercise moral rights of the
author to a collecting society is possible.
73 Comm. Brussels. (réf.), June 5, 1984, I.C., 1984, p. 333.
74 Brussels, Dec. 15, 1930, Pas. 1931, II, p. 6; Brussels, March 23, 1946, Ing. Cons., 1946, p. 22; Civ.
Mons, Apr. 5, 1938, Pas. 1938, III, p. 103.
75 F. GOTZEN, 'Le droit moral dans la nouvelle loi belge relative au droit d'auteur et aux droits voisins',
Ing.-Cons., 1995, p. 135-146.
23
There is no need for a written contract but the waiver must be in express terms.76 It is better to
have the waiver in writing, although the law does not require it. Indeed there is a controversy as
to the legal nature of the waiver. Some say it is a contract and therefore, contracts have to be
proven against the author with a written document. Others say that this rule of evidence does
not apply to waivers because they are not contracts.77
Tacit agreement is possible if it is certain. For instance, if the author accepts the adaptation of
his work, it can be implied that he has waived his right of integrity. Even if the author has
renounced to exercise his moral right of integrity, he can still object to the modification if it
causes (and he proves that it is) a prejudice to his honour or reputation.
For certain works, the right of integrity is less protective. For example, architects can waive
their right of integrity as long as this waiver does not prejudice their honour or reputation.
Status of the employed author
The mere existence of a contract of employment or a commission does not imply a waiver of
moral rights. Only economic rights are alienated to the benefit of the employer. As regards the
right of disclosure, for instance, the fact that the commissioner stipulates that the work must be
delivered at a certain date, does not prevent the author to exercise his right of disclosure later if
the work is not completed at that date.
V. Duration of moral rights protection
The Act does not provide that moral rights are perpetual, thus duration of moral rights is
identical to the duration of economic rights, which is 70 years78 (art. 2 LDA). The duration of
performers' moral rights is 50 years after the performance or after the fixation (art. 38 LDA).
VI. Relationships between moral rights protection of authors and of performers
The rights of performers are limited by the rights of authors. Art. 33 al. 1 states that performers'
rights cannot limit the exercise of authors' rights. This formulation goes beyond the text of the
Rome Convention and the EC Directives on rental and lending rights and on cable and satellite
(these texts reject the supremacy of authors' rights on performers' rights). This raises a
problem of conformity of the LDA with these texts79.
76 Case law already established the principle of express consent before the 1994 LDA was enacted : see
Brussels, Sept. 29, 1965, J.C.P., 1966, II, 14820 obs. Françon. Similarly, case law had established
inalienability of moral rights Brussels. May 9, 1953, IC, 1953, p.193; Liège, Oct. 21, 1982, J.T., 1983, p.
12.
77 A. STROWEL & J.P. TRIAILLE, 1997, p. 88-90.
78 A. STROWEL & J.P. TRIAILLE, 1997, p. 49.
79 A. STROWEL & J.P. TRIAILLE, 1997, p. 92.
24
Summary
Legislation is dualistic. The right of disclosure is very detailed and very protective. The right of attribution
is simple (right to claim authorship, to object to false attribution as and remain anonymous or
pseudonymous). The right of integrity is absolute : no proof of prejudice is needed to act against violations.
There is a right to access but not a right to retract. Moral rights are not transferable but partial waivers are
allowed.
Case law relating to attribution is generally protective of authors, except for architectural works. As regards
the right of integrity, courts are also generous for authors, as the legislation does not require the proof of a
prejudice. To take the case of the comics book confusing the consumers as to the attribution, it seems that
in similar cases, in the event the confusing work was produced outside Belgium and was imported in
Belgium, courts would block its entry in Belgium. In like manner, if an article was legally reproduced
without the footnotes in another country (or the Belgian author could not object to it in that country), the
Belgian author could nevertheless bar its importation in Belgium. However the cases discussed seem to
be exclusively of a purely national nature.
25
Part III. France
I. Legal framework
II. Analysis of the different moral rights : characteristics
III. Restrictions on moral rights protection as regards certain work categories and certain
categories of rights holders
IV. Alienability and waiver of moral rights
V. Duration of moral rights protection
VI. Relationships between moral rights protection of authors and of performers
I. Legal framework
The Intellectual Property Code (Code de la Propriété Intellectuelle (CPI)) of July 1, 1992 has
been amended several times, on January 3, 1995, in 1996, by the decree n° 96-103 of Feb. 2,
1996, in application of law n° 94-361 of May 10, 1994 concerning the legal protection of
Computer Programs and by the Act n° 97-283 of March 27, 1997 implementing the term and
satellite-cable directives.
The Intellectual Property Code is completed by the Act on Author’s Rights and on the Rights of
Performers, Producers of phonograms and videograms and audiovisual communication
Enterprises (n° 85-660 of July 3, 1985) and the Ministerial Order pursuant to art. 20 (title II) of
Act n° 85.660 of July 3, 1985 on the Rights Neighbouring on Copyright of Performers engaged
in the making of an audio-visual work of Oct. 17, 1990.
II. Analysis of the different moral rights : characteristics
Moral rights are set forth in art. L. 121-1 to L. 121-9. Author’s rights are based on a dualistic
approach in France (art. L. 111-1) although it is contested by certain authors.80 This means
that author’s moral and economic rights are governed by separate legal regimes. In France,
moral rights are pre-eminent, as the legislation cites them before economic rights. The term
‘moral right’ is preferred to the term ‘the moral rights’ as there is a unity of the moral right. This
means that all moral rights have common characteristics.81
These characteristics, which will be studied in detail, are their personal character, their
imperative character, their ‘universalistic’ character (i.e. moral rights can be invoked by
foreigners, whatever their country’s legal regime on moral rights is or the faculty for a foreigner
80 Dualism : H. DESBOIS, Traité, Le droit d’auteur en France, Dalloz, 1978; A. FRANÇON, A et H.
LUCAS; No Dualism : J. RAYNARD.
81 A. & H.J. LUCAS, Traité de la Propriété Littéraire et Artistique, Paris, Litec, 1994, p. 304, n° 371 & 372.
26
to invoke a moral right on his work under French law), perpetuity, inalienability, immunity from
attachment, imprescriptibility.82
1. The right of disclosure (droit de divulgation)
a. Legislation
The right of disclosure is the right for the author to decide of the disclosure of his work in the
conditions and the way chosen by him. The right of disclosure was first recognised in the 1900
Whistler case83. The Court of Cassation decided that exhibition of a painting in a public space
does not amount to disclosure. Indeed the intent of the painter was to test the critics’ reaction
and not to divulge the work. The exhibition was not done in a lucrative goal. If the author
pursues a lucrative goal in the disclosure, then the work is ‘fully disclosed’. Whistler had to
return the money he had received from the commissioner and refrain from showing the painting
in a form in which the portrayed person would be recognisable.
The right of disclosure is now stipulated in art. L.121-2, § 1 CPI. The statute does not define
the disclosure but a concrete intentional act of disclosure to the public is needed. The author
must have the intent to disclose. The certainty of the intent will not generally cause problems in
case the author has alienated the material support of his work84 unless it was only a sketch
that the author decided to correct.85 Normally the public exhibition of the work will amount to
disclosure, the Whistler solution cannot be generalised because in that case, the exhibition was
only for the purpose of testing the critics. Concerning the intent, it seems sufficient that the
work has been made available to the public, an effective 'communication to the public' is not
needed to prove the intent.
Disclosure has to been done on a medium but it can be oral.86 There is no disclosure if the
author improvises his oral speech and wishes to improve it before being criticised.87
The author has the control over disclosure. He cannot be forced to disclose an unfinished
work, e.g. a general rehearsal of a play or musical performance does not imply a disclosure
even if a limited public is invited.88 If he transfers reproduction or performance rights without
having previously disclosed the work, the author still retains his right of disclosure because a
82 The fact that moral rights are imprescriptible does not mean that the author can wait more than 30
years to act against a violation of his rights, but that a violation can arise 30 years after the transfer or
disclosure of the work.
83 Trib. Civ. Seine, March 20, 1895; Paris, Dec. 2, 1897, D., 1897, II, p. 265; Cass. March 14, 1900, DP,
1900, 1, p. 497. The Rouault case detailed the solution adopted in Whistler, see Court of Appeals Paris,
1st ch., March 19, 1947, D., 1949, p. 20. The definition of the right of disclosure was also iterated by the
Paris Court of Appeals in Camoin, March 6, 1931, DP 1931, 2, p. 88 (the author had torn his painting and
thrown the parts away) for the preceding judgment, see trib. Civ. Seine, Nov. 15, 1927.
84 Court of Appeals of Paris, Rouault, March 19, 1947, D. , 1949, p. 20; TGI Paris, Fleyss v. Raysse, D.,
1992, somm., p. 14.
85 Paris, 4th ch. A, Feb. 17, 1988, Pons, RIDA, Oct. 1989, n. 142, p. 325.
86 However, a court decided that an author's conferences could not be published because they were
intended to a limited number of persons and not the general public, see TGI Paris, 1st ch., Dec. 11, 1985,
D., 1987, somm. P. 155 (Lacan's conferences).
87 TGI Paris, 1st. Ch., Nov. 20, 1991, Légipresse, 1992, III, p. 33 (Barthes).
88 P.Y. GAUTIER, Propriété littéraire et artistique, 3ème ed. Mise à jour, Collection Droit fondamental,
PUF, 1999, p. 179.
27
waiver of the right of disclosure is forbidden.89 Nevertheless, once the author has signed a
contract of publication he is supposed to have accepted the disclosure of his work90.
Furthermore, the author can use his right of disclosure to force the contracting party to publish
his work91. In case the author signed a contract on future works, he has the right to refuse to
disclose but then must indemnify his contracting party (see e.g. Rouault case). The latter
cannot force the author to execute his obligation in nature.92 In the case of commissioned
works, the author also remains in possession of his moral right of disclosure. He can refuse to
deliver the work or to refuse to complete the order. To make a ‘derivative work’, the author of
the derivative work must always ask the authorisation of the author, as to the disclosure right.
Art. L. 121-3 allows courts to order any appropriate measure in case of flagrant abuse in the
use or non-use of the disclosure right. So if the author’s heirs are unreasonably refusing
permission to disclose unpublished works of the author, application can be made to the court
for the necessary permission.93 Lucas even proposes that if the refusal is abusive, it can be
considered void and the contracting party of the author can disclose.94
Exhaustion of the right of publication
The majority of the French doctrine and the Court of Cassation are of opinion that the right of
disclosure is not exhausted by the first use.95 Indeed the author determines the means by
which he discloses his work. Thus the right of disclosure is not exhausted by the first manner
and the first time in which the author discloses his work.96 The author does not have a right of
disclosure for the several original copies of a work. Once he has disclosed the first of these
copies, the right of disclosure is exhausted.97
b. Case law
The right of disclosure is discretionary.98 It belongs only to the author.99 The right of
disclosure is absolute, even the partial reading of an undisclosed document amounts to
89 A. LUCAS - R. PLAISANT, 'France', in M.B. NIMMER - P.E. GELLER, International copyright law and
practice, New York, Matthew Bender, October 1996, FRA-93.
90 Art. L. 132-4 determines the procedure for disclosure and the conditions applicable in contracts for the
publication of a work.
91 P.Y. GAUTIER, 1999, p. 180.
92 C. DOUTRELEPONT, Le droit moral de l’auteur et le droit communautaire, Bruylant, Bruxelles, 1997, p.
192. See also A. & H.J. LUCAS, 1994, p. 318, & n. 141.
93 J.A.L. STERLING, World Copyright law, 1998, p. 285.
94 A. & H.J. LUCAS, 1994, p. 317 and n. 135.
95 See e.g. F. POLLAUD-DULIAN, ‘Moral rights in France through recent case law’, RIDA 1990, n°145, p.
165, commenting the Lacan case; L. GOLDGRAB, ‘France’ in C. VAN RIJ, 1995, p. 90, citing A & H.J.
LUCAS, 1994, p. 314, n° 386.
96 A. & H. J. LUCAS, p. 314. See for instance the Barthes case where the court ruled that the oral
disclosure does not exhaust the other types or means of disclosure.
97 Cass. June 4, 1971, cited by D. GAUDEL, ‘Arts graphiques et plastiques en France’, in ALAI 1993, p.
364 (tapestries).
98 Cass. 1st. civ. June 5, 1984, RIDA Apr. 1985, p. 150; Bull. Civ. I, n° 184; Cass. 1st civ., May 19, 1976,
RIDA Jan. 1977, p. 104. However, the court of Cassation seems to contradict herself when she sanctions
the abuse of the right of retract, see Cass. May 14, 1991, RIDA Jan. 1992, p. 272.
99 Trib. Civ. Seine, Oct. 10, 1951, D., 1952, p. 390; Orléans, Feb. 18, 1959, D., 1959, p. 440.
28
infringement.100 A work cannot be disclosed without the authors’ consent even if it is
completed but the author finds it is not satisfactory.101 The publication in the press of the
script and extracts of dialogues of a movie, before its showing in movie theatres, without the
author’s authorisation, infringes the right of disclosure.102 “Putting on sale abandoned
paintings while knowing that the artist was opposed to their disclosure as immature works,
violates his right of disclosure.”103
If the work is disclosed under another form without the author’s authorisation, it infringes her
right of disclosure.104 For instance, the written publication of a text to which the author had
given an oral format infringed his right of integrity.105 A publisher cannot publish a book
reproducing most of an author’s works without his consent or the heir’s consent.106 The
interests or rights of the possessor of the original manuscript outweigh the ‘rights’ of the
‘pioneer’, the person who reveals an undisclosed work.107 The unauthorised use for publicity
purposes of a creative work infringes the publication right of the author. The refusal by the
organiser of an art exhibition to show the works of an artist does not in itself infringe his moral
right.108
With respect to abuse by heirs of the right of disclosure, a first decision found abusive the
refusal to publish works because the reason for non-disclosure was not based on the will of the
author but on familial interests.109 In another case, the heirs could not deviate from the clearly
expressed will of the deceased author.110 Thus if the author’s will is not clear, former art. 20 of
the 1957 Act does not apply. The heirs of A. Artaud misused the right of disclosure by objecting
to carry on publication of Artaud’s complete works by an editor with whom the author signed a
contract.111
100 Cass. Feb. 25, 1997, Perbet v. Consorts Bauzon, RIDA, n° 173, 1997, p. 233.
101 Cass. Crim. Dec. 2, 1964, Gaz. Pal., 24-27 Apr. 1965. See also TGI Paris (réf.), July 1, 1983, RIDA,
Oct. 1983, 256.
102 TGI Paris, Feb. 17, 1999, Gaumont c. C. Clavier.
103 A. LUCAS, A.- R. PLAISANT, 'France', in NIMMER, M.B.- GELLER, P.E., International copyright law and
practice, New York, Matthew Bender, October 1996, FRA-92.
104 Paris, 4th ch. Feb. 13, 1981, RIDA, Apr. 1982, p. 126 (photographs published in a magazine and
disclosed by a TV channel without authorisation).
105 TGI Paris, 1st ch., Nov. 20, 1991, RIDA 1992, n° 151, 340 (allowing the taping of a lecture or
publishing a synopsis does not amount to disclosures of the work, concerning a summary of a course
given by R. Barthes), reversed by Court of Appeals of Paris, RIDA January 1993, N°153, p. 191. See also
Cass., 1st civ. Nov. 14, 1973, JCP-1974-II-17653, RTDCom. 1974, p. 514.
106 Paris District Court, (TGI), July 7, 1993, unpublished, cited by L. GOLDGRAB, in C. VAN RIJ, 1995, p.
83. (about the publication of Coluche’s works. Moreover there were errors, alterations and omissions.)
107 Cass. Civ. 1st, Nov. 9, 1993, RIDA, Jan. 1994, p. 322, D., 1994, 155.
108 Paris, 1st Ch., Apr. 10, 1995, RIDA, 1995, N° 166, 316.
109 TGI Reims, Jan. 9, 1969, D., 1969, jp. P. 569.
110 TGI Paris Dec. 1, 1982, unpublished works of Montherlant, RIDA Jan. 1983, p. 165.
111 TGI Paris, July 6, 1994, RIDA n°163, 1995, p. 244, confirmed by Court of Appeals of Paris, Dec. 19,
1997, RIDA, n°178, 1998, p. 315. For other cases, see Cass. Civ. I, Apr. 13, 1992, RIDA 1992, n°154, 149
(to invoke 121-3, the party must have a personal interest); Rennes, Nov. 16, 1990, RIDA 1991, n°148,
168, C.D.A. Jan. 1991, 10, Foujita; TGI Paris, 3d ch. July 6, 1994, RIDA 1995, N°163, 244; Cass. 1st civ.,
Nov. 24 1993, RIDA 1994, n°160, 216; Court of Appeals of Paris, 25th ch. B, March 17, 1989, Juris-data,
n. 021069.
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2. The right of attribution (droit de paternité)
a. Legislation
First of all it must be noted that in France, the ‘right of respect’ encompasses the right of
attribution and the right of respect for the work (art. L. 121-1). The author has the right to have
his name and quality respected (right of respect for name and qualification) (art. L. 121-1, §
1).112 This is the positive aspect of the right. The right to respect the quality apparently refers
to the indication of the author’s professional status or honorific titles (e.g. professor).113 The
name must be indicated on edited copies and advertising documents (art. L.132-11, §3).114
The name cannot be replaced by an allusion, such as the author of the History of Paris.115
The right of attribution also encompasses the right to remain anonymous or to publish under a
pseudonym. This is the negative aspect of the right. If the public can easily recognise the
author ('transparent’ pseudonym), the regime of pseudonym works does not apply but the
general rules applies.116
Art. L. 113-1 sets forth a rebuttable presumption of authorship in favour of the person whose
name appears on the work. This presumption does not prevent co-authors to claim authorship
for a work which has not been disclosed under their name.117
It is controversial whether the author can act on the basis of the moral right of attribution when
his name is used in relation with a work he has not created (false attribution). For C. Colombet
and C. Doutrelepont, the right of attribution does not protect this hypothesis. The civil code and
rights of personality such as rules forbidding defamation or violations of honour should apply
instead.118 Moreover there is a special criminal statute which represses false attributions.119
In France, courts have nevertheless used the attribution right to forbid such false
attributions.120
112 See e.g. Court of Appeals of Paris, Feb. 9, 1931, DH 1931, somm. p. 48; Trib; civ. Seine, Nov. 26,
1931, Gaz. Pal. 1932, 1, p. 337; Trib. Civ. Seine, July 11, 1933, Gaz. Pal. 1933, 2, p. 606. See also Court
of Appeals of Paris, Jan. 20, 1988, Cahiers du droit d’auteur, May 1988, p. 104; Court of Appeals of Paris,
Feb. 25, 1988, Cahiers du droit d’auteur, June 1988, p. 18, Court of Appeals of Paris, June 7, 1988,
Cahiers du droit d’auteur, Sept. 1988, p. 21; TGI Paris, Oct. 25, 1988, Cahiers du droit d’auteur, Feb.
1989, p. 12; Court of Appeals of Paris, Dec. 21, 1988, Cahiers du droit d’auteur, Feb. 1989, p. 12.
113 J.A.L. STERLING, p. 285. The omission by the editor of one the author’s titles is not a breach of
contract : see T. Comm. Seine, Apr. 2, 1951, D., 1951, p. 343.
114 TGI Paris 3d ch. Dec. 8, 1980, RIDA, Apr. 1981,P. 175, TGI Paris 3d ch. June 28, 1983, RIDA, Oct.
1983, p. 251; TGI Paris, June 26, 1985, D., 1986, I.R. 184; Paris 4th ch., Apr. 20, 1989, RIDA, Jan. 1990,
p. 317. For advertising, see Trib. Civ. Seine, Feb. 20, 1922, Gaz. Pal., 1922, 2, 282; TGI Paris (réf.),
March 8, 1985, RIDA July 1985, p. 185; TGI Paris 1st ch., Feb. 21 1990, D., 1991, S.C.95 (Buren
columns); Court of Appeals of Paris, 4th ch. B, Dec. 6, 1990, Juris-data, n. 025855.
115 Trib. Com. Seine, Apr. 2, 1951, D., 1951, 343.
116 TGI Paris 1st ch., July 9, 1980, RIDA, Oct. 1980, p. 147.
117 Cass. Nov. 24, 1993, RIDA, 1994, n°161, p. 196, somm. Kerever; Paris March 1, 1993, RIDA, n°157,
p. 282, somm. Kerever.
118 See C. COLOMBET, Propriété littéraire et droits voisins, Précis Dalloz, 1994, p. 115; C.
DOUTRELEPONT, 1997.
119 See A & H.J. LUCAS, 1994, p. 330, n°408.
120 A & H.J. LUCAS (1994, p. 327) criticise this and argues that these violations should be treated under
the civil code and the defamation wrong.
30
b. Case law
Decisions which recognised a violation of the right of attribution
An editor cannot reveal the name of the author if the author chose to remain anonymous or
chose a pseudonym.121 The name of the architect must be mentioned on the building.122
However, if the architect’s work is not original, his name must not be mentioned.123 Similarly,
his name must be mentioned on photographs of the building.124 On the contrary, the right of
attribution of an author of design or of a work of applied arts, may be limited.125
The omission of the name of the author of a song in the credits of movie violates his right of
attribution.126 In like manner, the omission by the editor of the author’s name and of the title of
his works is a violation of the right of attribution.127 Similarly, the omission of the author’s
name on one of his photographs infringes his attribution right.128 A court has ruled that the
name of the photographer must be mentioned on the reproduction even if the photograph is not
protected by copyright.129 Even if a work is famous, the advertising agency must still indicate
the name of the author in the margin of a photograph of the work.130 Someone who deletes
the author’s name or substitute their own is liable.131 If the name has been omitted, the author
and his successors can act to have it mentioned.132 The name of the author must be
Paris Dec. 17, 1986, J.C.P., 1987, II, 20899; Paris Oct. 27, 1988, J.C.P., 1990, I, 3433, n°9; Paris, March
23, 1992, RIDA, 1993, n°155, p. 181 (the attribution of work to Rodin of a work which is not his, is a
violation of the right of respect of his name); Court of Appeals of Paris, 1st, Sept. 25, 1987, RIDA, Jan.
1988, n. 135, p. 104, D., 1988, somm. P. 205; TGI Paris, Jan. 14, 1988, Rachmaninoff, RIDA, Oct. 1988,
p. 321; Court of Appeals of Colmar, 1st ch., Nov. 2 1988, Juris-data, n. 049870: TGI Paris, 1st. Ch. Jan.
17, 1990, D., 1991, somm. p. 95, confirmed by Court of Appeals of Paris, 1st ch. A, Jan. 14, 1991, Jurisdata,
n. 020286 (the prejudice (the fact that a reproduction of a painting in a magazine was made under
the name of another artist) is not repaired by a late rectifying note without the accompanying picture of the
painting); Paris, 13th ch., May 23, 1992, RIDA Jan. 1993, p. 181; TGI Paris, May 9, 1995, Ministère Public
v. D. Amar, in A. KEREVER, ‘Chronique de jurisprudence’, RIDA 1996/1, p. 187. A court had decided
that the affixing by the restorer of an unsigned painting of the author’s name, is a misdemeanour, see Nov.
2, 1960, RIDA Jan. 1962, p. 118.
121 Paris July 5, 1979, D., 1980, p. 580.
122 Rennes, Nov. 22, 1911, D., 1914, 2, p. 5.
123 Cass. June 5, 1984, RIDA Apr.; 1985, p. 150, Cons. Etat, May 6, 1988, RIDA Jan. 1989, p. 178.
124 TGI Paris 3d ch., Nov. 13, 1970, Gaz. Pal., 1971, 1, p. 352.
125 Paris, Nov. 22, 1983, D., 1985, inf. Rap., p. 10. Paris, March 6, 1991, D.S. 1992, somm. 75 (the
author of an advertising film is supposed to have waived his right of attribution since such a film has no
credits).
126 See TGI Paris, Nov. 26, 1997, J. Ferrat v. Soc. GMT Productions, RG n° 95/22491, RIDA, 1998,
n°177, p. 169. There was infringement of the right of the author as well as the performer as the author was
himself singing his song.
127 Court of Appeals of Paris, Sept. 27, 1996, Ed. Larousse v. R. Garcia Pelayo, RIDA, n° 174, 1997, p.
203.
128 See Arkadia v. J.P. Lenoir cases, below.
129 Court of Appeals of Angers, Apr. 18, 1989, unpublished, cited by D. GAUDEL, in ALAI 1993, p. 365.
130 TGI Paris, 1st ch., Feb. 21, 1990, D.S. 1991, somm. 95, obs. Colombet.
131 Paris 13th ch., Oct. 5, 1995, RIDA, 1996, n° 168, 303.
132 e.g. TGI Paris (réf.), March 8, 1985, RIDA, July 1985, n. 125, p. 185.
31
mentioned on a translation of his work and in general in works derived from his.133 A
translator has the right to be mentioned.134
The right of attribution applies to works of collaboration135 and collective works.136
Decisions which did not recognise violations
The omission of the name of the author in an advert showing his sculpture does not violate his
right of attribution because the reproduction of the sculpture in the advert is too imprecise to
allow it to be distinguished from other plastic works.137 The affixing of the signature of a
painter on a copy of one of his paintings, which has fallen in the public domain, is not a violation
of his moral right when there is no possible confusion between the original and the copy.138
The commissioner of a building cannot claim attribution of architectural arrangements when it is
the architect who is the author.139
Status of the employed author
There is never a transfer of moral rights in case of employment. The author can demand his
name to be mentioned, even after the termination of the employment contract, as the right is
imprescriptible.140
3. The right of respect or right of integrity (droit à l’intégrité)
a. Legislation
The general principle states that the author has the right to object to any modification which
violates the integrity of the work or modifies its “spirit” (L. 121-1 al. 1). There are many other
dispositions in French law which specify the right of respect : art. 121-5 al. 3 for audio-visual
works; art. 132-22 for works which can be executed publicly by theatres, cinemas, TV
channels, digital servers...; art. 132-11 al. 2 in the publishing sector.
In addition to art. 121-1 al. 1, art. 112-1 forbids to take account of the type of work, the form of
expression, the merit or the destination of the work to discriminate between them. As long as
the works are original, they are protected. The text does not treat of the measure of the
133 Court of Appeals Paris, 4th ch. Jan. 27, 1987, Juris-data, n. 021223, Court of Appeals of Paris, 4th
ch.B, Nov. 12, 1992, Juris-data, n. 022996.
134 Court of Appeals of Paris, Jan. 20, 1999, M.L. Navarro & SGDL v. Hachette Livre, RIDA, Apr. 1999, p.
285. The exact manner that the mention must take is determined by the customs, as in contractual
relations between the editor and the translator.
135 TGI Paris, June 28, 1983, RIDA, 1983, n°118, p. 251. When a collaboration work is published with the
author’s contribution without his consent and without mention of his name, both his rights of attribution and
disclosure are infringed : see Court of Appeals of Pau, March 10, 1988, RIDA Jan. 1989, p. 179; TGI
Paris, Oct. 12, 1988, Cahiers du droit d’auteur, Feb. 1989, p. 11, TGI Paris, Nov. 23, 1988, autobiography
of F. Lopez, Cahiers du droit d’auteur, March 1989, p. 15.
136 Cass. April 15, 1986, RIDA, 1986, n°130, p. 143.
137 TGI Paris, May 28, 1997, RIDA, 1998, n°175, p. 231.
138 TGI Paris, May 9, 1995 confirmed by Court of Appeals of Paris, Oct. 5, 1995, 13th ch. Corr., J. Espié
v . P. Renoir, RIDA, N°168, p. 303 & p. 263, confirmed by Cass. (Ch. Crim.), June 11, 1997, RIDA, 1998,
n°175, p. 237.
139 Court of Appeals of Paris, Bourgeois v. Doueb, RIDA n°173, 1997, p. 235.
140 C. DOUTRELEPONT, p. 241.
32
protection that must be afforded to works in general. But it is normal that the protection varies
in function of the intensity of the link between the author and the work (e.g. in case of software,
the personality of the author does not appear in the work as much as in a painting for
instance)141.
Art. L. 121-1 al. 1 makes no reference to the words of ‘honour and reputation’ used in art. 6 bis
of the Berne Convention so that the author is the only judge of the violation; the judge or a third
party cannot substitute his appreciation of the violation to the author’s one.142 As the Act
absolutely forbids any modification, the courts should not try to see whether there is a violation
to honour or reputation but find directly that any modification is a violation of the right of respect.
Thus the courts do not proceed to a careful weighing of interests but “try to determine whether
the effect of the act of which a complaint is made is to “denature the ethic of the work” ”.143
Nevertheless, courts generally agree to exercise a certain control on the author’s claim of
integrity violation. Firstly, the judge analyses whether there is a violation or not.144 Secondly,
the court refers to ‘customs’. For instance, in the advertising sector, the author is never cited,
so that an author must accept that his name will not be mentioned in a commercial. Thirdly, the
judge takes into account special limitations to the right of integrity, i.e. technical constraints
inherent to the work itself (a movie made for the cinema cannot be compared with its
broadcasting on TV; necessarily the quality of the showing will differ).
Authors cannot base a claim of violation of their honour or reputation only (i.e. not in connection
with their works) on the basis of their moral right of integrity.145 The right of integrity protect
only against erroneous citations. However, this is not satisfactory as truncated citations do not
reflect the author’s thoughts or change the meaning of the author’s thoughts and can be a
violation of the right of integrity.146 The possessory lien of the creditor does not in itself violate
the right of respect of the author; in other words, the author must prove a violation of his right of
respect (e.g. the creditor does not take care of the work)147.
b. Case law
141 The ALAI has adopted a resolution that forwards this idea. See The moral right of the author, Antwerp
Congress, 1993, p. 560.
142 TGI Paris, 3d ch., Oct. 15, 1992, Brut de Béton v. J. Lindon, RIDA Jan. 1993, n° 155, p. 225 (En
attendant Godot), see below. Contra, Dali case, see below.
143 J.A.L. STERLING, p. 285. Sometimes the two aspects (the ‘denaturation’ of the spirit and the violation
of the integrity) are present; see e.g. Court of Appeals of Paris, 1st ch. , Dec. 14, 1987, RIDA 1988, n°138,
p. 299; Court of Appeals of Paris, 1st ch. , May 9, 1989, Juris-data, n. 022735; D. 1990, somm. p. 160.
144 I. THERY, ‘Le droit moral dans l’oeuvre multimédia’, in Le multimédia, marché, Droit et pratiques
juridiques, Actes du Juriscope, 1994, P.U.F., 1995.
See for instance, “Thérèse”, the author of the movie moved for summary judgement to ask for an
announcement before the broadcasting of his movie because he did not appreciate the persons to be
interviewed for a debate after the diffusion. The court refused to grant summary judgement (Paris, 1st ch.,
16 March 1989, G.P., 15 June 1989, n° 165-166.)
145 See e.g. Thérèse case; Court of Appeals of Paris, 1st ch. A, Nov. 16, 1992, Juris-data, n. 022985.
146 P. SIRINELLI, ‘L’auteur face a l’integration de son oeuvre dans une banque de données doctrinale’,
De l’écrit à l’écran, D., 1993, 44è cahier, p. 329.
147 P.Y. GAUTIER, 1999, n° 359, p. 537.
33
Courts have detailed the extent of the right of integrity; no modifications are allowed either in
the form of the work or in its spirit148; the work must be preserved in its integrity and
details149. A misrepresentation (presenting the work in misleading, disparaging circumstances,
ways or contexts), even if there is no material modification, infringes the right of integrity.150
French case law prohibits the destruction of the work, which is seen as a violation of the right of
integrity.
Literary works
It is against the right of respect to modify the text, the title, the order of the chapters, the
preface, the cover page151, or add a preface or a warning to the text.152 A publisher cannot
publish the work in several booklets when the author has accepted the publication in the form of
a book.153
If an author has authorised to publish excerpts of his work, he can nevertheless object to the
publication of excerpts if they distort his “general line of thought.”154 The publication of a
condensed version of the work with poorly reduced photographs violates the integrity right.155
The publisher is liable if he fails to correct any typing or semantic errors.156 A collection of
148 For a review of cases, see e.g. A. BERENBOOM, n° 102, p. 134; P.Y. Gautier, 1999, pp. 200-211, A
& H.J. LUCAS, 1994, p.332 ff; C. COLOMBET, p. 118 ff. See e.g. Paris, July 28, 1932, Pages de ma vie
(Chaliapine), D., 1934, II, p. 139.
149 Paris, March 12, 1936, Banque de France v. Merson case, Gaz. Pal., 1936, I, p. 94; Paris June 6,
1979, D., 1981, I, R.85.
150 Paris, 4th ch., Dec. 12, 1995, RIDA 1996, n° 169, 372. Contra: Cass. Civ. I, Feb. 6, 1996, RIDA,
1996, n° 169, 351.
Cass. Civ. I, Dec. 6, 1966, RIDA, 1967, n° 53, 15 (using the title of a work as that of another violates the
right of respect of the former work). Contra: Cass. Civ. I, Feb. 6, 1996, RIDA, 1996, n° 169, 351.
151 See Trib. civ. Seine, Dec. 31, 1924, DP, 1925.2.54; Paris 1st c. Dec. 8, 1988, D.S. 1990, somm. 53
obs. Colombet; TGI Paris, Sept. 21, 1994, St Ex, RIDA, Jan. 1995. 253; Paris, Feb. 13, 1995, RIDA, Oct.
1995. 241; Groddeck, Paris, June 7, 1982, RIDA, Oct. 1982. 178, D., 1983 inf. rap. 97 (removal of a
chapter because it was racist); Paris, Sept. 5, 1997, “Sheila”, RIDA, Apr. 1998. 416 (cover page). See
Paris District Court, (TGI), July 7, 1993, unpublished, cited by L. GOLDGRAB, 1995, p. 83. About the
publication of Coluche’s works. Moreover there were errors, alterations and omissions. Court of Appeals
of Paris, Sept. 5, 1997, Ed. La Seine v. A. Chancel, RIDA 1998, n°178, p. 305 (To transform the
presentation of a work of fiction into a autobiographical work is a Distortion; there was also a modification
of the title which could introduce a confusion in the public’s mind, because it made believe that it was
entirely autobiographical). Court of Appeals of Paris, March 25, 1998, Nataf v. Ed. De Vecchi, RIDA, 1998,
n°178, p. 163 (even if the title is to be decided by the editor, if this title distorts the content of the book,
there is infringement of the right of integrity).
152 TGI Paris, Nov. 25, 1987, Moritz, JCP, 1988 II, 21062 (added preface); Jan. 7, 1982, RIDA, 1982,
114, p. 177 (disparaging preface). Court of Appeals of Paris, March 25, 1998, Nataf v. Ed. De Vecchi,
RIDA 1998, n°178, p. 163 (added warning); see also Paris Court of Appeals, March 9, 1989, RIDA, 1990,
n°143, p. 310 (a publisher cannot make changes to the work and then insert a warning for the public in the
credits).
153 TGI Paris, June 5, 1987, Cahiers du droit d’auteur, Jan. 1988, p. 14.
154 Paris, Oct. 10, 1957, Gaz. Pal., 1958, 1, 27.
155 Paris 4th ch., June 6, 1979, D.S. 1981, inf. Rap. 85.
156 Paris Court of Appeals, Jan. 4, 1988, D., 1989, n° 49.
34
poems cannot be published in a neglecting way.157 It was held to be against the right of
integrity to publish a very critical work about Albert Camus.158
Dramatic works
The director of a play must respect the author’s conceptions.159 In particular the director
cannot change the play’s ending and the scenic indications such as to distort the work.160 He
cannot take a character out of his environment.161 The author can refuse changes made by
the director to the characteristics of the characters of the play (for instance make women play
instead of men).162 Secondary authors involved in the creation of a play who claim there is a
modification to their work (such as the designer of costumes) must prove the damage.163
Musical works
A user cannot change the music or the words.164 It is prohibited to make cuts in a musical
show.165 Even if a song, included in a movie, was separated in two parts, the movie respected
the spirit of the song.166 A song (or a work in general, such as a picture) cannot be used for
an advert or a broadcast which would go against the conceptions of the author and would use
the music to commercial ends.167 In a recent case, the use of the music in the advert had been
157 Court Of Appeals of Paris, 4th ch. A, Feb. 1, 1993, D., 1993, inf. rap. p. 158.
158 TGI Paris, 1st ch., Feb. 15, 1984, RIDA, 1984, n° 120, 178, D.S. 1984, inf. Rap. 291.
159 For case law, see : TGI Paris Nov. 27, 1985, Lucernaire, RIDA July. 1986. 166 (a comedy of manners
was treated like a gulag play).
160 Court of Appeals of Paris, Sept. 27, 1996, Centre Culturel Aragon-Triolet v. L’Instant Théâtre, RIDA
1997, n° 172, p. 201.
161 See Paris May 11, 1988, RIDA, n° 142, p. 344 (Tintin And other characters were included in a play in
another context which the author did not agree upon : Tintin becomes in the play a unpowerful and
disillusioned character), confirmed by Paris 20 Dec. 1990, Veuve Hergé, D., 1991. 532 note Edelman.
162 See En Attendant Godot, TGI Paris; 3d ch., 15 Oct. 1992, RIDA, Jan. 1993, n° 155, p.225.
163 See Paris May 11, 1965, J.T., 1965, 465, Dali v. TRM, confirmed by Cass, March 5, 1968, D., 1968,
382 (about “Pelleas and Melisande costumes”). The fact that some accessories had been added to
costumes designed by Dali does not give the author a right to say that his work has been distorted, as long
as the additions do not result in an inaccurate portrayal of his work). Contra Paris, Nov. 20, 1935, DH,
1936. 26.
164 See Vesoul from J. Brel, Paris, June 21, 1988, RIDA, Oct. 1988. 304, D., 1990, somm. 53; Civ. 1st
March 27, 1990, Bull. civ., I, n°75 (the RPR had used for its electoral propaganda two paragraphs of a
song); TGI Paris, Nov. 26, 1997, RIDA, Apr. 1998, 455 (it is forbidden to dissociate the words and the
music to make the public participate to a karaoké).
165 Court of Appeals of Paris, 25th ch., March 18, 1988, Juris-data, n. 021113.
166 J. Ferrat v. Soc. GMT Productions, cited above.
167 Court of Appeals of Paris, 1st ch. A, Feb. 20, 1990, Parlez-moi d’amour, Juris-data, n. 022451. Paris,
March 6, 1991, Contrex, D., 1992, somm., 75, obs. Hassler, RIDA, July 1992. 149 (however the court
decided that there was a violation of the right of publication and not of the right of integrity); Paris TGI, 3rd
ch. 2d sec., March 28, 1991, Chico Buarque v. Polygram and Schweppes France; TGI Paris, May 15,
1991, Massenet v. SARL Foxtrot production, JCP, 1992 II 21919, obs. X. Daverat; TGI Paris, Oct. 17,
1991, W. Badarou v. Dièse (advertisement for 36 15 Playboy); Feb. 5, 1992, Ne me quitte pas, RIDA July
1992.205; TGI Paris, Dec. 18, 1992, EMI v. NRJ (advertisement for a political party); Paris 4th ch. 14 June
1993, Gaz. Pal., Dec. 31 1993, somm. 15 (image of work incorporated in an erotic film); Paris, Apr. 7,
1994 Mambo (Badarou and island music v. La Cinq), D., 1995, somm. 56, obs. Colombet (erotic advert);
Paris, June 26, 1996, J. Brel, RIDA, Jan. 1997. 337 (advert for a bank); Paris Sept. 27, 1996, Mylène
Farmer and Laurent Boutonnat v. Sony music entertainment, Jan. 1997. 251, RDPI, Nov. 1996.34 (advert
35
allowed by the author by contract. The author sued the advertising agency for having modified
the text. However the author waived his moral rights in the contract. The court should have
therefore ruled that it was contrary to the principle of inalienability of the right of integrity.168
When only extracts of musical works are used, case law diverges.169 In one case, a court
held that the moral right was not infringed when the advertisement enhanced the author’s
reputation and at the time of the song’s recording, he knew that it would be part of the sound
track of an advertisement.170
Multimedia (digitised) works
Digitisation allows warping, morphing, compositing which can infringe the right of integrity.
Similarly, the injection in pay-per-view channels and the possibility for users to interact with the
work and thus transform it can violate the right of integrity. It is also possible for the webmaster
of an internet site to change the destination of a work, even if it does not modify the work
itself.171 A ‘first’ example of an infringement of the right of integrity (and attribution) by a
multimedia producer is the reproduction of photographs in a digitised form in a CD-ROM
without the author’s authorisation. His name was not mentioned on all photographs and certain
photographs were placed in another context.172
Works of visual and plastic art
It has been held to infringe the integrity right :
- to modify the work in a way that the author has not consented to.173
- to reframe a picture to include it in a multiple photo frame.174
- to sell a work in separate parts. 175
- to centre a photograph differently.176
- to change the environment of a work.177
for Dolls); Paris Sept. 24, 1997, Daft punk, Légipresse, March 1998, III, 33; Cass. civ. 1st, Feb. 24, 1998,
TF1 v. Sony music, RIDA, July 1998, p. 213.
168 TGI Paris, Sept. 3, 1997, D. Berbelivien v. Soc. Agapes, RIDA 1998, n° 175, p. 231.
169 There is a violation : TGI Paris, 3d ch. May 10, 1996, RIDA 1996, n° 170, 326; Paris, 1st ch., June 25,
1996, Juris-data, n°022363. No violation : Paris 13d ch. Sept. 28, 1995, RIDA 1996, n° 170, 254; Trib.
Com. Paris, 6th ch. Apr. 10, 1995, Juris-data, n°048496.
170 Paris Court of Appeal, Nov. 10, 1992, Ed.. 23 v. Guidoni.
171 P.Y. GAUTIER, 1999, p. 207.
172 TGI Paris Apr. 29, 1998, RIDA Jan. 1999, p. 321.
173 For case law, see : Paris, Feb. 9, 1931, Cappiello, GP, 193, 1, 133, DH 1931, somm. 48 (someone
had taken and modified a drawing for a chocolate ad); Paris, March 12, 1936, DH, 1936, 257; see also
Paris, Oct. 31, 1988, C.D.A. Apr. 1989, 22; Paris 4th ch. March 16, 1989, C.D.A. Apr. 1989, 12 (truncated
reproduction of a poster); Dec. 12 1988, Catena, RIDA, July 1990, 333 & Civ. 1st Dec. 17, 1991, Bull. civ.,
I, n° 360 (changing a logo); refrigerator Buffet case (see above).
174 Paris, June 11, 1990, RIDA, n° 146, p. 293; Paris, Feb. 11, 1981, RIDA, n° 112, p. 126.
175 TGI. Seine, June 7, 1960; Paris, May 30, 1962, D., 1962, 572; Cass. July 6, 1965, Gaz. Pal., 1965, II,
126 (the owner of a refrigerator’s panels decorated by Buffet wanted to sell the Different panels or parts of
the refrigerator separately. The Court of Appeals of Paris decided that it is an abuse of his right of
ownership in the work for the owner to sell the parts separately. The owner can only sell them in their
integrity).
176 A photograph is reproduced with another type of centring (Maria Callas’ photograph), see Court of
Appeals of Versailles, Nov. 5, 1998, Soc. Arkadia v. J.P. Lenoir, RIDA Apr. 1999, p. 283.
177 A counter example : Trib. com. Lyon, Apr. 28, 1997, Cesar, RIDA, Jan. 1997, 373.
36
- to eliminate the decoration surrounding a photograph.178
- to present a drawing upside down.179
- to damage a sculpture.180
- to use the work for advertising purposes.181
- for the owner not to take care of the work, be it a private individual or a state authority (e.g.
museums).182 The question of the proof of a correct care is however difficult. For instance, in
the case of a fountain which had been deteriorated, the decision seemed to imply that a state
authority, as the representant of the general interest, has a stronger obligation to maintain
works of art in good condition, which does not imply that individuals should not incur liability for
not taking care of copyright works.
In conclusion, in some cases, especially in cases involving two conflicting interests such as the
interests of the author and of the owner of the work, courts make a balance between their
interests to decide if adjunctions on a work or a modification is severe enough to be violating
the moral right. In a 1976 case, a court decided that the municipality which had destroyed a
sculpture because of its insalubrity and danger for children, was not liable because its decision
was based on considerations of public safety.183 For instance, the destruction of a sculpture
which was integrated in an architectural ensemble was justified because the conditions of
setting up of the work disappeared consequently to a modification of the site.184 The right of
integrity of a sculptor is not violated by the transfer of his statue in another site when the spirit
of the work was not linked to the original site.185
178 TGI Paris, June 26, 1985, D.S. 1986, inf. Rap. 184 (journal had published a photograph of Dali, had
re-entered it and suppressed the decoration surrounding it).
179 Court of Appeals of Paris, 8th ch., Oct. 21, 1987, Juris-data, n. 026643.
180 Court of Appeals of Paris, 4th ch. A, Nov. 6, 1990, Juris-data, n. 024687.
181 TGI Paris (réf.), Oct. 19, 1989, Juris-data, n. 044195 (reproduction of the character Becassine,
pregnant, for a contraceptive advert); Court of Appeals of Paris, 4th Ch., June 6, 1978, Soc. Corot v.
Veuve Lurçat, RIDA, Jan. 1979, n° 99, p. 165; Court of Appeals of Paris, 4th Ch., March 13, 1989, Jurisdata,
n. 020925., Court of Appeals of Paris, 1st ch. B, March 19, 1992, Juris-data, n. 020968 (modification
of Marianne’s face); Court of Appeals of Versailles, 1st ch., July 9, 1992, RSCG Lorraine v. Marceau,
RIDA 1993, n°158, p. 208 (use of a character created by a mime); Court of Appeals of Paris, June 11,
1997, Lemaître v. Guerlain, RIDA, n° 174, 1997, p. 205 (use of the frescoes of the Museum of the
Colonies).
182 See : Cons. préf. Montpellier, Dec. 9, 1936, Fontaine de Roussillon, DP, 1936. 3. 68 (a municipality
was condemned because he did not take care of a fountain, which was deteriorated by children; then the
municipality decided, Due to the awful state of the fountain, to destroy it completely); Paris, July 10, 1975,
Scrive, D. 1977, 342, RIDA, Jan. 1977, 114 (a supermarket withdraws a fountain from its hall, without
justification, there was an abuse of the right of ownership in Destroying the work). For other examples
(see GAUTIER, p. 209).
183 Trib. Adm. Grenoble, Feb. 18, 1976, RIDA Jan. 1977, p. 116.
184 TGI Paris, June 24, 1992, Juris-data, n. 045409. Nonetheless, in this case, the destruction was also
justified because the owner could not identify the sculptor to inform him of the intent to destroy the work.
185 Trib. Comm. Lyon, Apr. 28, 1997, C. Baldaccini v. Soc. Slyci, RIDA 1997, n° 173, p. 237. His right of
disclosure was also exhausted by the first edification of the statue.
37
Someone who has altered the work must restore it back into its original state (unless the work
was destroyed or altered by “force majeure”).186 The right of respect does not protect the
author who wishes to enjoin lawful sales which diminished the painter’s rating.187
The author of a decoration for an opera is not a co-author of the opera so that he cannot object
to the removal of a scene where his decoration appeared.188 When works have less originality
or are works of the applied art, courts are less willing to grant relief for violation of the right of
integrity.189
Architectural works
Due to the inherent utilitarian function of architectural works, there is often a conflict between
the architect and the owner, and courts generally apply the balance of interests principle.190
This principle requires that different factors be considered, such as the state, the place of the
work, the author’s will, the gravity of the violation, the commitment of the owner.191 A major
part of the doctrine thinks that before destroying the work, the owner should inform the author
and offer him the possibility to take back his work, while compensating the owner.192
This is illustrated by a famous case : Bull asked an architect to design a building which would
be “the reflection of a high technology industry”. The architect designed a glass window with a
huge hall. The company then decided to build two rooms inside the hall and modified the first
floor decoration. The architect argued it was against his moral rights. The Court of Appeals
ruled that his objection was an abuse of his moral right.193 The Court of Cassation iterated that
the moral right of integrity is not absolute. A balance of the interests or of the rights of the
author and of the owner has to be done.
In another famous case, Renault had began building the edifice but in the course of
construction, decided it did not want to continue due to technical reasons, so it destroyed the
186 See e.g. Munch, Civ. 1st 3 Dec. 1991, Bull. civ. I, n° 341 (mosaic of a fountain collapses because of a
conception mistake of the author; the contracting party must not put the mosaic back to its original state).
187 Cass. Civ. I, Dec. 3 1968, D.S. 1969, 73; Cass. Civ. I, May 10, 1995, RIDA 1995, n° 166, 285 (failure
to exploit a work cannot be actionable on the basis of moral rights).
188 Trib. Civ. Seine, 1st ch. 1st sec., Oct. 15, 1954, RIDA, Jan. 1955, p. 146; RTDCom. 1955, 137. (F.
Léger’s Decorations for an opera of D. Milhaud (Bolivar)).
189 See e.g. modification of ‘logos’, Court of Appeals of Versailles, 1st ch., June 29, 1987, Vasarely v.
Renault, Juris-data, n. 044865; Court of Appeals of Versailles, 12th ch., June 16, 1988, RIDA, 1989,
n°142, p. 341. See also TGI Annecy, Sept. 10, 1998, Molinard v. Soc. Les Fromagers Savoyards, RIDA,
Jan. 1999, p. 319. The work was made for advertising purposes, so that the respect of the right of integrity
is lessened.
190 See e.g. Cass. Civ. 1st, Dec. 1, 1987, Ville de Lille v. Gillet, RIDA 1988, n°136, p. 137. In this case,
the City of Lille had distorted the work of the architect and did not show that there were technical reasons
for doing so; See also other case, TGI Paris, March 25, 1993, Hayama v. Hôtel Nikko, RIDA July 1993, p.
354.
191 TGI Paris 3d ch., March 25, 1993, RIDA 1993, n°157, p. 354.
192 See H. DESBOIS, n° 460; C. COLOMBET, 1994, p. 343; P. SIRINELLI, Le droit moral de l’auteur et le
droit commun des contrats, p. 501-505. For a sculpture, see e.g. Paris, May 14, 1974, R.T.D.Com., 1976,
p.351, n° 4 (The author can object to the destruction of his sculpture).
193 TGI Paris, March 29, 1989, Bonnier v. Bull, J.C.P., Doctr. 1990, 3433, n° 6; Paris, May 15, 1990,
J.C.P., Doctr., 1991, 3478, n° 35 and annex n° 6; Cass. 7 Jan. 1992, RTDCom., 1992, p. 376. See A.
STROWEL, 1993, p. 502.
38
building. The Court of Cassation decided that the Court of Appeal was wrong in deciding that
the there was no moral right on Dubuffet's unfinished work. The Court of Appeals on remand
decided that the author can exercise his moral right to prevent the destruction of his work, even
if it was uncompleted.194
Generally the author also has the right to be warned in advance before the execution of a
modification. Modifications must be accepted by the architect.195 Nonetheless, the original
architect cannot demand that he be the one chosen by the owner to proceed to the
modifications. Courts have nevertheless sometimes obliged parties to come to an agreement,
which can lead to give the realisation of the works to the original architect.196 The construction
of a restaurant on the roof of the theatre of the Champs-Elysées did not infringe the architect’s
right to maintain the integrity of the theatre.197 The addition of a new construction to an
architectural group was held to infringe the integrity right.198 The requirements of urban
planning outweigh the moral rights of an architect.199 Technical reasons to modify a building
were deemed sufficient to outweigh the architect's moral right.200 Economic reasons can also
justify certain modifications.201 The necessity to obtain an authorisation to build a building
prevails upon the moral right.202 The architect cannot demand the intangibility of the work
because it would violate the right of ownership and the principles of the freedom of
commerce.203
Status of the employed author
The employer can impose on the author certain constraints justified by aesthetic or financial
reasons. The author cannot in these cases, object to such modifications, and invoke his moral
right of integrity.204
194 Cass. Jan. 8, 1980, Dubuffet, D., 1980, 89, note B. Edelman; Versailles, July 8, 1981, somm. Comm.,
1982, 45, obs. C. Colombet, confirmed by Cass. Civ., I, March 16, 1983, RIDA 1983, n° 117, 80. In the
Fresques de Juvisy case, (Trib. Versailles, June 23, 1932, D., 1932, p. 487, reversed Paris, Apr. 27, 1934,
D., 1934, p. 385) the owner of property has full power to dispose of it and this destroy it (frescoes had
been painted on a chapel’s wall, because they hurt the sacred character of the place the priest painted
the wall without informing the author). This decision has little presidential value due to its specific
circumstances. Since then the Dubuffet case has occurred.
195 Trib., March 29? 1989, J.C.P., 1990, I, 3433, Annexe I, n° 6. Contra R. PLAISANT & A. LUCAS, in
NIMMER, FRA-102 : these authors believe that the architect does not necessarily have the right to be
consulted before changes are made to their works.
196 Trib. Paris, March 25, 1993, RIDA, 1993, n°157, p. 354.
197 TGI Paris, 1st ch., Apr. 4, 1990, Perret, RIDA 1990, n°145, 386, confirmed by Paris 1st ch. July 11,
1990, RIDA, 1990, n° 146, 299.
198 Riom, May 26, 1966, J.C.P., 1967, II, 15183.
199 Cass. Crim. June 3, 1987, D.S. 1987, 301.
200 Cass. Civ. I, Dec. Or Apr. (?) 1, 1987, RIDA 1988, N° 136, 137, D.S. 1989, somm. 45.
201 TGI Paris March 29, 1989, cited above.
202 Cass. Crim. June 3, 1986, D, 1987, 301. See also Crim. May 6, 1986, D., 1987 somm. p. 150
(pornographic works are protected but there are some reserves if the movie shows perversions and
violence).
203 Paris 1st ch., May 15, 1990, RIDA, Jan. 1991, p. 311.
204 Cass. Apr. 7, 1987, D., 1988, Jur. 97.
39
4. The right of modification/adaptation
The adaptation of an original work into another genre will in a certain measure infringe the
moral right of integrity of the author.205 This measure or limit between simple adaptations and
distortions of the work is difficult to draw. Two different tendencies are found between courts
(the first trend being however more generalised):
i) the adapter (and a translator) has a rather large freedom of adaptation. He must respect the
spirit of the work but is not obliged to respect the word of the text. As a result, the original
author must prove the fault of distortion.
For instance, if someone utilises the same “pattern” of events but without the same “spirit” than
in the original work, it will not be considered an adaptation.206 If there are differences between
the two works or if the “scenario” is too “typical” to the genre, then there will not be an
adaptation either.207 In sum, if a modification is very slight or if it is justified, the court must
look if it distorts the spirit of the work, if it does not, then there is no violation.208
i)there is distortion of the work when it is adapted, because it violates the author’s dignity. The
spirit and the character of a work must be respected.209 The director of a play or a
choreograph must respect the work when they adapt it for the scene.210 Borrowing some
musical notes can be an adaptation211, unless it is parody.
205 P.Y. GAUTIER, 1999, n° 142.
206 Civ. Seine, Dec. 19, 1928, Le train de 8 h 47, DH, 1929, p. 76.
207 Boubouroche case : Civ. Seine, July 7, 1908; Paris May 12, 1909, D., 1910, 2, p. 81, rejected by
Cass. June 27, 1910, D., 1910, I, 296; Normandie Niemen case : TGI Seine, Jan. 9, 1962, RIDA, Apr.
1962, p. 135; Françoise Sagan v. Jean Hougron case : Paris, July 7, 1981, RIDA, Jan. 1982, p. 188,
rejected by Cass., Feb. 23, 1983, Bull. civ. II, 1st part, n° 94, p. 65; La bicyclette bleue, TGI Paris, Dec. 6,
1989, RIDA, Apr. 1990, p. 146; Paris, Nov. 21, 1990, RIDA, Jan. 1991, p. 294 and 319; Cass. Feb. 4,
1992; Versailles, Dec. 15, 1993, RIDA, Apr. 1994, p. 255. See also A. BERENBOOM, p. 107 ff.
208 See e.g. Court of Appeals of Versailles, 12th ch. June 16, 1988, RIDA, Oct. 1989, n° 142, p. 341.
See also TGI Annecy, Sept. 10, 1998, Molinard v. Soc. Les Fromagers Savoyards, RIDA, Jan. 1999, p.
319.
209 See TGI Paris, Jan. 7, 1969, Allain, RIDA, Apr. 1969, 166 (distortion of Fantômas); Apr. 18, 1979,
Christopher Frank, RIDA, Oct. 1979, 175 (appeal : Paris, Apr. 29, 1982, RIDA, Oct. 1982, 172 (manifest
distortion of a detective novel); TGI Paris, 3d ch., Dec. 1, 1983, RIDA 1984, n°120, p. 162; TGI Paris, 1st
ch., Nov. 27, 1985, Lurcenaire, RIDA 1986, n°129, p. 166 (comedy in a sanatorium was transformed into a
political satire and the characters are in a psychiatric gulag); TGI Avignon, Nov. 8, 1988, Gens de
Mogador, RIDA, July 1989, 278.
210 See for instance, in Belgium, La Veuve Joyeuse, adapted by Béjart, Bruxelles, Sept. 29, 1965, J.T.,
1965, p 561. (See comments in the part on Belgium). See Lurcenaire, cited above. Samuel Beckett
prevented his play ‘Fin De partie’ as adapted by the Comédie Française, see Le Quotidien de Paris, Oct.
22-23, 1988, p. 25.
211 Aix, June 3, 1957, RIDA, July 1957, p. 132 (six notes had been borrowed); TGI Paris 3D ch., Feb. 20,
1976, RIDA Apr. 1977, p. 147, Paris, 4th ch., Apr. 29, 1982, RIDA Oct. 1982, p. 172. TGI Paris (réf.), Feb.
7, 1984, RIDA Apr. 1984, 174, TGI Paris, Nov. 27, 1985, RTDCom., 1986, 397.
40
As regards particular contracts of adaptation, some clauses can without legal problems compel
the contracting party to respect the spirit of the work or oblige him to only modify the work if the
technique requires it.212
212 TGI Bordeaux, Jan. 15, 1951, Le don d’Adèle, Gaz. Pal. 1951, I, Jur., p. 372; Paris, July 2, 1957, D.,
1957, p. 698 ff.
41
5. The right to retract (droit au retrait et droit au repentir)
a. Legislation
The author can terminate a transfer, either to modify the work (droit de repentir) or to put an
end to its exploitation (droit de retrait) if he justifies moral reasons to do so (art. L. 121-4).213
For a great majority of authors, the right of retract can be used in any field, not only in the
publishing sector. The author is the only judge of the moral reasons why he wishes to withdraw
his work.214 The reasons must be moral or intellectual, not financial. If they are financial, the
author misuses his right of retract.215 The author cannot expropriate the owner of the work.
Indeed the right of retract is not the corollary of the right of disclosure.216
This right to retract has a minor impact because the author must indemnify in advance his
contracting party for the damage due to the termination of the contract (i.e. damnum emergens
and lucrum cessans217). Consequently, the author is never willing to exercise his right.218
Furthermore, if the author wishes to re-exploit the work, he must offer this opportunity to his first
contracting party in priority and at the same conditions. This right of priority is applicable in any
case, even if the work has been slightly modified by the author. If this were not the case, it
would be too easy to circumvent the law.219
b. Case law
An author cannot exercise his right of retract because he thinks that the remuneration for the
work is too small.220 The contracting party can pursue the exploitation of the work as long as
he is not indemnified by the author.221 It has been held that, in case the author misuses his
right of retract, the contracting party can override the author’s decision.222 An author who is
not satisfied of the prologue of his book, does not use his right of retract but breaches simply
his contract, so that he must indemnify the publisher.223 The right of retract does not give the
author the right to withdraw a painting from a museum or make some changes to a painting.224
6. The right of access (Droit d'accès)
213 A & H.J. LUCAS, 1994, contra A. DESBOIS, Traité, n°393, C. COLOMBET, 1994, n° 161. These two
latter authors believe that repent refers to the breach of contract that occurs before the publication and
retract refers to the breach occurring after the publication. However this Distinction is not crucial as all
authors agree that the author can take back his work and modify it. See F. POLLAUD-DULIAN, RIDA
1990, p. 181.
214 Trib. Civ. Seine, Oct. 27, 1969, RIDA, 1970, Jan., p. 235.
215 Paris, Jan. 13, 1993, Juris-data, n°020603. Cass May 14, 1991, J.C.P., 1991, II, 21760.
216 C. COLOMBET, 1994, p. 132.
217 P.Y. GAUTIER, p. 182. Court of Appeals of Paris, 4th ch. A, Jan. 13, 1993, Riou v. Delthil, Juris-data,
n. 020603. However it has been judged that a part of the damages can be left for the contracting party to
pay if the changes made by the author exercising his right of ‘repent’ could be expected by the contracting
party, see Cass. Soc. May 8, 1980, RIDA, Jan. 1981, n. 107, p. 148.
218 A. STROWEL & J.P. TRIAILLE, 1997, p. 47, note 170. A. LUCAS, 1998, n° 468, p. 236.
219 A. & H.J. LUCAS, 1994. Contra, DESBOIS, 3rd Ed., n°401.
220 Cass. 1st. Civ., May 14, 1991, Chiavarino, Bull. Civ., I, n. 157.
221 TGI Seine, 3d ch. Oct. 27, 1969, Sartre, RIDA Jan. 1970, n° 63, p. 235.
222 See Riou v. Delthil & Chiavarino cases.
223 Court of Appeals of Paris, Apr. 7, 1978, D., 1978 somm. p. 303.
224 Paris, Apr. 19, 1961, RIDA, Jan. 1962, p. 119.
42
a. Legislation
The author has a right to access his work (art. 111-3 CPI). If the owner of the work prevents
abusively the exercise of the author's right of disclosure, the Tribunal of First instance can take
any appropriate measure.
b. Case law
A legal person refused to give access to the author to the negative of the author’s unfinished
film, arguing that the right of disclosure can only be exercised by the author once the film is
completed. The argument was not accepted by the court which found a notorious abuse of the
legal person’s ownership right on the material medium embodying the work.225 In another
case, the Bibliothèque Nationale de France did not refuse A. Artaud’s heir to access
manuscripts of the author but subordinated the access on the general rules on communication
of manuscripts and on the acceptance of the legacy. This behaviour was not an abuse.226
7. Abuse of moral rights
a. Legislation
It is generally accepted that there can be an abuse of the moral right227 so that French case
law and doctrine are against the absolute character of moral rights228. Moreover, as has been
mentioned, the author cannot exercise his moral rights to protect his economic rights (e.g. he
cannot use his right of retract to financial ends because these ends are not connected to the
moral right).229 Certain authors however still defend the idea that moral rights (especially the
right of integrity) are discretionary.230
b. Case law
An author can also misuse his moral right of attribution, in affirming inexact facts about his
works which could depreciate their value and be detrimental for the seller.231
225 Court of Appeals of Paris, Sept. 29, 1995, Les Films de l’Atalante, RIDA, 1997, n°168, p. 259.
226 TGI Paris, Jan. 5, 1995, S. Malaussena v. Bibliothèque Nationale De France, RIDA, n°168, 1997, p.
267.
227 C. DOUTRELEPONT, p. 70-71. Cass civ. May 14, 1945, J.C.P. 1945, II, 2835, D., 1945, 85.
228 A. LUCAS, 1998, p. 246, n° 489, P. SIRINELLI, note under Cass. 14 May 1991, RIDA 1992, n° 153,
p. 285, C. COLOMBET, Propriété littéraire et artistique, Dalloz, Paris, 6th ed., 1992, n°133, P.Y.
GAUTIER, Propriété littéraire et artistique, Paris, PUF, 1991, p. 153 . Contra F. POLLAUD-DULLIAN,
Abus de droit et droit moral, D., 1993, chr., p. 98 & Moral rights in France through recent case law, RIDA,
1990, p. 146 ff.
229 Cass. Dec. 3, 1968, D., 1969, p. 73, Cass. May 14, 1991, RIDA 1992, n° 153, p. 272.
230 A. KEREVER, Le droit moral de l’auteur, Geist und Geld, pp. 79-89. See also F. POLLAUD-DULIAN,
op. Cit. See also Cass. June 5, 1984, Bull. Civ. 1984-I n° 184, RIDA Apr. 1985, p. 150.
231 Court of Appeals Paris, 8th ch., A, Nov. 7, 1990, Juris-data, n. 024691 & Cass. 1st civ., Dec. 2, 1992,
Giacometti, J.C.P., 93, IV, 408, Bull. Civ., I, n. 300. See also Bonnier v. Bull, above; see also Court of
Appeals of Paris, May 31, 1989, Bouchard, Cahiers du droit d'auteur, Jan. 1990, p. 14; D. 1989, inf. Rap.
p. 199 (use of sculpture for advertising purposes, however there was no violation of moral right because
the author was arguing on economic grounds).
43
8. Classification of authors rights in different categories - relationships between economic and
moral rights
8.1. Rights of adaptation and integrity
Notwithstanding the transfer by the author of his right of adaptation, the adapter must respect
the right of integrity. In other words, he must find “a new expression of the thought behind a
work without distorting its character”.232 But courts can “take into account transfers of rights of
adaptation in limiting or precluding remedies against appropriate adaptations”.233
8.2. Rights of disclosure and of communication to the public
See right of disclosure. Disclosure can take place before or after the conclusion of a contract of
exploitation of a work. Disclosure can take place even if there is no economic exploitation of the
rights.
232 Cass. Civ. I, Nov. 22, 1966, D.S. 1967.
233 Paris, 1st ch., May 31, 1988, Les dialogues des Carmélites, RIDA, 1989, n° 139, 183; TGI 1st ch.,
Nov. 27 1985, RIDA, 1986, n°129, 166. Cass. Civ. I, Dec. 17, 1991, RIDA, 1992, n° 152, 190.
44
III. Restrictions on moral rights protection introduced with respect to certain
work categories and certain categories of rights holders
1. Software
Patrimonial rights belong to the employer ab initio but it seems that moral rights remain always
vested in the author (art. 113-9), except those of adaptation and withdrawal.234
1.1. The right of disclosure
The general principles apply, so that the author remains in principle the holder of his right of
disclosure.
1.2. The right of integrity
Like in Belgium, the right of integrity is limited to instances of prejudice to honour or reputation
(art. L. 121-7-1°). The author must prove the prejudice. Moreover the right of respect is not
totally guaranteed since the author cannot object to adaptation.235
1.3. The right of retract
The right of retract does not exist for software (art. L. 121-7-2°). This means that the author
cannot exercise this right.
2. Audio-visual works
Audio-visual works are works of collaboration (see below). Authors rights can only be exercised
when the audio-visual work is completed (art. L. 121-5). Thus the authors cannot exercise their
moral rights before the ‘final cut’.236
2.1. The right of disclosure
a. Legislation
The right of disclosure is somewhat restricted. The work is deemed completed when the
director, or possibly the co-authors, and the producer have come to an agreement (final cut).
This means that every author can negotiate modifications he wishes to do to the work when it is
still unfinished. Although the preparative texts insisted that co-authors should have to be
consulted, if they reach no agreement between them, the final word belongs to the director.237
The consent of a co-author should only be required when he has made a 'decisive'
contribution.238
If one of the co-author, is unable (force majeure) or does not want to complete the work, the
producer can use the contribution and can employ other authors to complete the work (art. L.
121-6). The author can nonetheless use his contribution in another genre (art. L.121-6 in fine
and 113-3).
b. Case law
234 J.A.L. STERLING, 1998, p. 286; E. MICHAU, 'France' in H.D.J. JONGEN - A.P. MEIJBOOM, Copyright
software protection in the European Community, Deventer-Boston, Kluwer, 1993.
235 E. MICHAU, 'France' in H.D.J. JONGEN - A.P. MEIJBOOM, n° 1.6. ‘Moral rights’.
236 see e.g. Nov. 12, 1986, RIDA, Jan. 1987, p. 247.
237 JOLIBOIS, Rapport, Sénat, Deuxième lecture, RIDA, 1986, n°127, p. 282.
238 C. COLOMBET, 1994, p. 164, n° 178.
45
An author who has contributed to a film, but without completing it or approving the final version
cannot object to its exploitation.239 When the transferee of the economic rights of a movie
prevents, with fault, the sale of the movie to a TV station, there is infringement of the right of
disclosure.240 In another case, the exploitation of a movie was ceased in 1981 but some years
later, some co-authors wished to continue exploitation. Other co-authors refused to disclose the
work abusively because they did not consider the work as of bad quality and did not give
reasons for the non-disclosure, especially when they had accepted that the work be disclosed
between the date of completion and 1981.241
2.2. The right of attribution
a. Legislation
General rules apply.242
b. Case law
If the author is merely described as a technician among the credits of a documentary film when
the public is not aware that the film is an abridgement of a longer one which the author has
created, it infringes his right of attribution.243
2.3. The right of integrity
a. Legislation
Modifications to the last version are possible only with the consent of the director, possibly of
the co-authors and the producer (art. L. 121-5, §3; L. 132-22).244 Authors must be consulted
before the transfer of the audio-visual work on another medium for the purpose of another
mode of exploitation (such as a video tape) (art. L.121-5 §4). Authors can also prevent the
distortion of their contributions.245 The master copy of the movie cannot be destroyed (L. 121-
5, § 2).
239 Cass. Civ. I, Feb.; 7, 1973, D.S. 1973, 363. The author however had a right to damages.
240 TGI Paris, Oct. 10, 1988, Cahiers du droit d’auteur, Feb. 1989, p. 11.
241 TGI Paris, Dec. 13, 1989, Vega productions et al. v. Coherie Vian & Doppagne.
242 See e.g. TGI Paris 3d ch. Feb. 21, 1979, RIDA, Oct. 1979, p. 151.
243 Cass. Civ. Jan. 17, 1995, Collet v. Blaise, cited by R. PLAISANT & A. LUCAS, in NIMMER, FRA-94,
note 21. Contra, Paris, 4th ch. Dec. 12, 1995, RIDA 1996, n° 169, 372 (definition of film credits is up to
the producer).
244 TGI Paris, 1st ch., March 14, 1990, D., 1991. S.C. 95. See also below.
245 C. COLOMBET, 1994, p. 134, n°177.
46
b. Case law
It has been held contrary to the right of respect to :
- colour a black and white movie246
- make cuts in the movie247 or delete several episodes of a series248
- make cuts in a report249 or in a movie to broadcast it into several episodes250 or
conversely to broadcast all in one go the content of two separate episodes, while the author
meant to broadcast them separately251
- make cuts or shorten or reduce a movie for reasons of exploitation in other countries, unless
the author gives his consent252.
As for the interruptions made for purposes of showing ads, the Directive “Television without
borders” allows it under strict conditions. Thus, breaks allowing the broadcasting of adverts
can be made but the authors’ consent is needed to know at which moment the cuts will be
made.253
- tendentiously present extracts of a movie254
- add a warning to the movie255
- add a music to the movie “the Kid” of Charlie Chaplin without his consent256
- add the logo of a TV channel during the diffusion of the work257
- modify the script and publish it without the authorisation of the author258.
246 See TGI Nov. 23, 1988, Huston v. La Cinq, Rev. Crit. DIP, 1989. 372 and Paris, July 6, 1989, Rev.
Crit. DIP, 1989, 706 and Cass. civ. 1st, May 28, 1991, JCP, 1991 II, 21731, RIDA, July 1991, p. 197 and
Versailles, Dec. 19, 1994, RIDA 1995, n° 164, 389. On remand, the Versailles court decided that authors
shot the film in black and white by deliberate aesthetic choice and colouring is therefore a violation.
247 e.g. Paris, July 1, 1991, RIDA Jan. 1992, somm. comm., p. 205; TGI Paris 1st ch. March 14, 1990,
Sautet v. M6, Juris-data, n° 43056. In like manner, a movie theatre manager cannot make cuts in a
movie, see Trib. Civ. Seine, Apr. 6-7, 1949, Gaz. Pal., 11-13 May, 1949.
248 TGI Paris, 1st ch. March 14, 1990, La Cinq v. Misserly, RIDA 1990, N° 146, 320. But an author who
leaves the choice of episodes to be televised to the producer, has no remedies, see Paris, 1st Ch.A, Oct.
30, 1990, Juris-data, n°024686.
249 TGI Paris, March 29, 1990, Csrts Lavaux et al. v. La Cinq; Paris, March 4, 1991, D., 1992, somm. 74.
250 TGI Paris May 24, 1989, RIDA, Jan. 1990, Plouffe, confirmed Paris, Nov. 26, 1990, Images juridiques,
15 Jan. 1991, p. 2; Paris 18 Dec. 1989, “Cremer”, D., 1990, somm. 353.
251 Paris, March 4, 1991, La Cinq v. Misserly, RIDA, July 1991, p. 56.
252 TGI Paris, March 23, 1994, Diên Biên Phû, RIDA, Apr. 1995, 401.
253 e.g. Nov. 15, 1987, Images Juridiques, n° 4, pp. 1 ff; Paris, Nov. 26, 1990, Images juridiques, n° 74, p.
2; TGI Paris, May 24, 1989, Carle v. TF1, RIDA, Jan. 1990, p. 353 (about the transmission of the movie
‘Les Plouffes’). Moreover a French statute of January 17, 1989 makes it unlawful to interrupt a movie
more than once. See A & H.J. Lucas, 1994, p. 338.
254 Court of Appeals of Paris, 1st ch. Dec. 14, 1987, Juris-data, n° 028411.
255 Cass. 1st civ. Apr. 4, 1991, Bull. Civ. I, n. 120, confirming Paris 4th ch. B, March 9, 1989, D., 1990,
S.C.55.
256 Paris, Apr. 29, 1959, D., 1959, 402.
257 TGI Paris, June 29, 1988, La Cinq v. Marchand, RIDA, Oct. 1988. 328, JCP, 1989, confirmed by Paris
Oct. 25, 1989, D., 1990, somm. 54; TGI Paris 1st ch. 1st sec., Sept. 13, 1989, unpublished. Paris, March
4, 1991, RIDA, July 1991, p. 156.
258 TGI Paris, Feb. 17, 1999, Gaumont c. Clavier, cited in RIDA, n° 181, 1999, p. 259.
47
It has been judged that a broadcasting organisation cannot be forced to complete a series of
TV realisations.259 In a famous case, the author of the movie ‘Thérèse’, objected to its
projection before a debate on faith. In his view, this debate could denature the film and classify
it into the religious genre while he had conceived it in a profane approach. For the court of
Appeals of Paris, there was no evidence that the public would have been influenced by the fact
there was a debate after the projection.260
The use of the title of a movie for a company’s business is a violation of the author’s moral right
because it depreciates the movie. The court construed the notion of distortion quite extensively
because it found the movie’s title was not original. But as the movie was original, the mere
taking of its title by the business company was detrimental to the movie’s author.261 The
translation of the original version of a film into another language must respect the text and the
work in general. Alterations (such as modifications of the commentary, omission of certain
dialogues, mistakes in the choice of dubbing voices) in the French version infringe the original
version.262 All these violations must be accompanied by the proof by the author of a
damage.263
Authors of audio-visual works cannot use their moral right to violate another’s author moral
right.264 In like manner, the co-authors cannot distort another co-author’s contribution.265
3. Radio works
Art. L.121-6 applies to radio works. For the rest, general rules apply.
4. Works of collaboration, collective works and composite works
Works of Collaboration
259 TGI Paris 1st ch., Dec. 14, 1983, RIDA, Apr. 1984, 172, reformed by Court of Appeals of Paris 1st ch.,
March 5, 1986, RIDA, July 1986, p. 163 (the court only admits the cancellation of the contract). The TGI
had decided that only a n execution in nature (i.e. to complete the realisation) could respect the moral
rights because an unfinished work is presumed created, so that it must benefit from the right of respect
like any other work. Naturally if the author prefers to only have damages for non realisation by the
broadcasting organisation, there is no problem (see e.g. Cass. 1st civ., Feb. 24, 1987, Michel de SaintPierre
v. A2, RIDA, July 1987, p. 186.)
260 Court of App. Paris, March 16, 1989, Gaz. Pal., June 1989, p. 13. The court refused the analogy with
the preface, see above in literary works Nov. 25, 1987.
261 Court of Appeals of Versailles, March 19, 1998, R. Laloux v. Chronopost (about the title ‘Les Maîtres
Du Temps), RIDA 1998, n° 177, p. 171.
262 Court of Appeals of Paris, Oct. 13, 1998, L. Mouzas v. Soc. Catalogue, RIDA, Apr. 1999, p. 289.
263 See : Trib. civ. seine (réf.) Aug. 24, 1951, JCP 1952, II, 6819; Paris, March 16, 1989, GP, 1989 1.
438, (rejects a demand to not show “Thérèse”), TGI Paris Apr. 23, 1997, Blier v. BNP, RIDA, July 1997,
366. In addition, penal sanctions can be ordered for infringement of the moral right (see Cass. cited in A.
FRANÇON, ‘Chronique de France’, RIDA July 1999, p. 225 : unauthorised disclosure).
264 See Paris, Nov. 12, 1986, Modiano, RIDA, Jan. 1987. 247, TGI Paris, Jan. 3, 1968, Léo Ferré, RIDA,
Apr. 1968, 125, July 1969.3.
265 Civ. Apr. 13, 1959, La bergère et le ramoneur, D., 1959, 325
48
A work of collaboration is a work to the creation of which several natural persons have
collaborated (art. L. 113-3). The contributions of the several authors have been united to
contribute to the creation of one single work. A work of collaboration can be indivisible (e.g. two
authors write the same book) or divisible. In this latter case, authors can exploit their
contributions separately if this does not prejudice the exploitation of the common work.
All authors must agree to disclose the work and if one of them misuses his right (for example by
refusing to disclose), the others can act against his refusal (L. 113-3 and L.121-3).266 They
can exercise their rights of respect and attribution separately.267 But they can exercise their
moral rights only on the final version of work.268 The name of the authors must be
mentioned.269 The right of retract can be exercised by the author of a work of
collaboration.270 It seems that the co-author must not indemnify the other co-authors.271
Collective works
A collective work is a work created under the initiative of a natural or legal person, which
publishes it and discloses it under its direction and name and in which the personal contribution
of the authors which collaborate to the completion of the work, melts in the whole for which it
has been conceived (it is not possible to attribute to each of these authors a distinct right on the
whole) (art. 113-2).272 Moral rights must be respected, like in any other work. For instance,
the name of the authors must be mentioned.273 It is up to the person who takes the initiative to
act against violations of moral rights in the interest of the authors. The authors can take action,
together with him. If this person is inactive, the authors can act, in their own name, against a
personal prejudice that they suffer, each one for his contribution.274 Indeed, the fact that the
promoter has moral rights on the different contributions does not prevent the author from using
his moral right on his contribution. If one of the authors decides to take action, the others must
prove that the modifications were useful for the work.275
However, when the work is still “under construction”, the author cannot use his moral rights and
must accept the corrections if they are justified. An author can be replaced if he does not want
266 P.Y. GAUTIER, 1999, n° 392. See Civ. 1st, May 19, 1976, Atlan, RIDA, Jan. 1977, 104, RTDcom.,
1977, 326 and Amiens, Apr. 17, 1978, D., 1978, 557.
267 See C. COLOMBET, 1994, p. 133, n°176. TGI Paris, May 24, 1989, Les Plouffes, RIDA, Jan. 1990,
353; May 15, 1991, Massenet, JCP, 1992, II, 21919; Sept. 10, 1992, Atalante, RIDA, Jan. 1993, 211; Paris
March 14, 1994, D., 1994, IR 116; Paris 13 Nov. 1996, Pecnard, D. 1997, somm. 1995, RIDA, Apr. 1997,
288.
268 E. LAUVAUX, ‘France’, ‘Moral rights as obstacles to the exploitation of musical works’, in C. VAN RIJ,
p. 77.
269 TGI Paris, 3d ch. June 28, 1983, RIDA Oct. 1983, n.118, p. 251; TGI Paris (réf.), June 7, 1989, Jurisdata,
n° 042158.
270 Court of Appeals of Bordeaux, May 24, 1984, D., 1986, somm. p. 181. See also C. COLOMBET, obs.
under this judgement; DESBOIS, Traité, n° 647; P. SIRINELLI, p. 684.
271 F. POLLAUD-DULIAN, 1990, p. 187; contra H. DESBOIS, Traité, n° 647.
272 See A. STROWEL, 1997, p. 164.
273 Cass. 1st civ. Apr. 15, 1986, RIDA, Oct. 1986, n. 130, Bull. Civ. I, n°89, p. 90.
274 The author of individual photographs inserted into a catalogue has the right to be mentioned,
Versailles, 3d ch., May 20, 1988, D., 1989, S.C.44; Civ. 1st Oct. 4, 1988, D., 1989 somm. p. 50 (the author
is not obliged to call the co-authors at the action); TGI Paris, May 15, 1991, JCP G. 1992-II-21919.
275 P.Y. GAUTIER, 1999, n° 387, p. 578. See e.g. civ. 1st Oct. 8, 1980, RTDcom. 1981.87; Cass. civ.
Dec. 16, 1986, D., 1988, 173; TGI Paris, May 17, 1984, Larousse, RIDA, Oct. 1984, 215.
49
to complete the work (art. L. 121-6). The author can object to modifications that the contracting
party would make to his contribution in the collective work.276 However, due to the nature of
the collective work, the final word is left to the person who takes the initiative and moral rights of
authors are more restricted because there must be a necessary co-ordination of all elements of
the collective work.277 Courts have nevertheless restricted the hypotheses in which a legal
person can be author of a collective work.278
Composite works
A composite work consists in the creation of a new work including some elements of preexisting
works or entire pre-existing works without the collaboration of the previous author(s).
Therefore, the agreement of the previous author(s) is necessary (art. L. 113-2, L. 112-3 and L.
113-4). The previous author(s) and the authors of the derived work have concurrent rights on
the derived work. The right of retract applies to composite works, as both the author of the
original and the derived work benefit from art. L.121-4. The author can object to distorting
adaptations of his pre-existing work, for instance when an anthology is made in a tendentious
way.279
276 Cass. Civ. Oct. 8, 1980, RIDA, Apr. 1981, p. 156.
277 Cass. Civ. 1st, Dec. 16, 1986, Champaud v. ELA, RIDA, July 1987, p. 183; Paris 4th ch.B, Nov. 6,
1986, Larousse de la Musique, D., 1988, S.C. 205. However the publisher of a newspaper cannot
denature the spirit of an article, see Court of Appeals of Paris, 1st ch., May 9, 1989, Juris-data, n° 022735.
278 Com. Apr. 7, 1987, RIDA, n°133, July 1987, p. 192.
279 TGI Seine, Apr. 15, 1964, D., 1964, 746 (parts tendentiously chosen out of “Les Misérables").
50
5. Performers moral rights
a. Legislation
Performers’ moral rights are narrower than author’s moral rights. Performers enjoy the rights of
attribution and of integrity (respect of the performer’s name, capacity and performance : art. L.
212-2) but not the right of disclosure nor the right of retract.280 “Artistes de complément”
(“complementary artists”) do not enjoy moral rights. However in the musical field, no artist is
“complementary”.281 Thus all musicians are protected performers. Indeed the Act of July 3,
1985 defines the “artiste de complément” as a silent extra. This cannot exist in the musical
field...
The rights are inalienable, imprescriptible and attached to the person of the performer, they are
transmitted to his heirs. It appears that all performers enjoy this protection in France (see e.g.
Rostropovitch case).282 The Minister of Culture may take action to protect neighbouring rights
in absence of a successor (art. L. 211-2).
b. Case law
Already in the 30’s, had the French courts recognised moral rights to performers283. Courts
had been able to penalise abuses on the basis of the rights of personality.284 In the Mylène
Farmer and Badarou cases285, courts based their judgements on the fixation and reproduction
rights of performers, because in these cases, they did not authorise the fixation and
reproduction for publicity purposes. The integrity of an actor is not violated by the use of his
interpretation for a bank commercial, as he accepted this use while he was alive.286
280 A. LUCAS, 1998, p. 252, n° 502. However, some courts have recognised a right of disclosure, see
Paris Dec. 18, 1989, D., 1990 somm. 353; D. 1991, somm. 101; Cass. 1st civ., July 16, 1992, D., 1993 jp.
220; Paris, Nov. 10, 1992, D., 1993, jp. 418.
281 TGI Paris April 23, 1992 (P. Dutour had performed the trumpet solo in ‘Mademoiselle chante le blues’,
sung by Patricia Kaas). The artist was not named on the cover of the CD.
282 Rostropovitch v. Erato Disques, TGI Paris, Jan. 10, 1990, n°145 RIDA, 368 (superimposing on
extraneous sounds). See also E. LAUVAUX, ‘France’, in C. VAN RIJ, 1995.
283 See case law in A. BERENBOOM, 1995, n° 218, p. 272; P. CHESNAIS, ‘France’, in S.M. STEWART,
p. 394.
284 TGI Paris, May 14, 1974, Carole Laure, RIDA, July 1974; TGI Paris, Apr. 20, 1977, RIDA Apr. 1978,
p. 117 (pornographic scenes had been added in a movie without the performers’ consent).
285 See above.
286 TGI Paris, Apr. 23, 1997, Blier v. BNP, RIDA, July 1997, p. 237.
51
IV. Alienability and waiver of moral rights
a. Legislation
Art. 121-1 al. 3 provides for the inalienability of the moral rights287 which means that the right
cannot be transferred by contract.288 Partial waivers are nevertheless allowed. Art. 132-11
does not allow waivers in advance but posterior waivers are possible.289 However the
doctrine is divided. Some believe that a waiver ex ante is possible.290 In any case,
commentators all agree for the allowance of waivers ex post, if the author is aware of the
effects of his waiver.291 The waiver must be in writing.292 But the consent to waive can be
implied from the circumstances.293
As concerns waivers of right of disclosure, a clause which gives to the producer the right to
decide of the final version without consulting the director is void, because it forces the author to
waive his rights in advance.294
As for the right of attribution, although it is inalienable,295 it is possible to waive its exercise but
the author will always have the right to "breach" the waiver and ask for his name to be
mentioned, subject to indemnification of his contracting party296. If French doctrine generally
accpet waivers, in this case, the motivations of the contracting parties need to be scrutinised to
see if there are licit.297 Art. 113-6 stipulates that when the author remains anonymous or
hides behind a pseudonym, he has not waived his moral rights, the editor is representing him
for the exercise of his rights. Thus a waiver is legal but precarious as the author can always
revoke it. Whichever of the two articles is used, the author remains in possession of his right to
claim attribution. Yet the result will be slightly different as regards the effects : the contract is
void under art. 121-1 and has retroactive effects (ex tunc), while under art. 113-6, it is valid and
287 It was first recognised by case law (before the legislation) see e.g. Trib. civ. Seine, July 10, 1946, D.,
1947.98.
288 e.g. Court of Appeals of Paris, March 10, 1988, Cahiers du droit d’auteur, June 1988, p. 23.
289 Court of Appeals of Aix, Feb. 23, 1965, D., 1966 jp. 166; Court of Appeals of Nîmes, July 4, 1966,
JCP, 1967-II-14691; Court of Appeals of Paris Nov. 15, 1966, G.P. 1967-I-17; Cass. Civ. Jan. 13, 1970,
D., 1970, jp. 483.
290 R. SARRAUTE, ‘De l’adaptation cinématographique des oeuvres littéraires’, Gaz. Pal., 1962, 1, p. 21
et P. SIRINELLI, Le droit moral de l’auteur et le droit commun des contrats, Thèse, Paris II, 1985, note 22,
p. 304.
291 A & H.J. LUCAS, 1994, p. 346, C. Colombet, 1994, n° 149; P. SIRINELLI, p. 307; DESBOIS, Traité,
n°382 & 451; F. POLLAUD-DULIAN, RIDA 1990, p. 137.
292 P. SIRINELLI, p. 223.
293 A & H. J. LUCAS, p. 347. Citing Court of Appeals of Paris, 4th ch., May 31, 1989, Bouchard, D., 1989,
inf. Rap., p. 199.
294 Cass. Jan. 7, 1973, Edouard Luntz v. Fox Europa, D., 1973, J 376.
295 TGI Paris (réf.), Dec. 27, 1968, RIDA, Apr. 1969, n. 60, p. 165, TGI Paris, 1st ch., May 30, 1984,
RIDA, Oct. 1984, n°122, p.220. It does not matter if the author was late in his reaction.
296 See A. STROWEL, 1993. Paris, June 10, 1986, Montpezat v. Flammarion, RIDA, July 1987, n° 133,
193., Paris, 1st Feb. 1989, D., 1990, somm. Comm. 52, obs. Colombet. It is generally conceded that an
author waives his right of attribution temporarily, while retaining the right to reveal himself later on, see
Paris, May 17, 1969, D.S. 1969, 702; J.C.P. 1970, II, 16415; Paris 1st Ch. Dec. 18, 1990, D.S. 1993, 442
appeal rejected, Cass. Civ. I, May 5, 1993, De Villiers v. Soton, RIDA 1993, n°158, 205.
297 C. DOUTRELEPONT, p. 237-238.
52
can be revoked only for the future (ex nunc). In conclusion, a ghost-writer can always reveal
his identity in France.298
As to the right of integrity, courts have confirmed that a contract waiver ex ante of the right of
integrity was void.299 A waiver ex post is generally considered valid because in this case, the
author can sense the modifications, as they already have been done and can agree in
awareness.300 A court has however admitted a waiver ex ante, because the author had forced
the contracting party to mention on the movie that the author (of books) was not creating the
movie.301
These general principles stated, it must be noted that there are different tendencies as regards
the inalienability of the right of integrity in France. Indeed, a waiver has often the same
consequences as a transfer. Indeed, when the author waives his integrity right, he agrees not to
object to modifications of the work. Thus some commentators disapprove waivers of the right
of integrity, as being contrary to the law stating the inalienability of the right.302 A clause that
would give all freedom of adaptation to the contracting party is controversial among French
experts.
The author can reserve his right to approve or not the changes. In this case, abuse may be
possible on the part of the author, thus the adapter would have to show that the modification is
reasonable or that the refusal is abusive. He can also specify in a contract to which
modifications he agrees and to which ones he does not. However, if these modifications distort
his work, he will be able to object to them.
The inalienability rule does not prevent contracts giving a mandate to a society or an agent
which will have the power to discuss exceptions to moral rights with users.
On a final note, one author argues that, as long as agreements are reasonably balanced, in
other words as long as the author is fairly compensated for the arrangements concerning his
moral rights, these agreements will exceptionally be challenged.303
b. Case law
In Etat Gabonais v. A2304, the Court of Cassation decided that it was possible to waive one’s
moral rights in advance in the case of a commissioned audio-visual work. This decision has
298 See e.g. TGI Seine, March 25, 1963, RTDcom., 1963, 573; Cass. Civ. 1st May 5, 1993, RIDA, Oct.
1993, p. 205. The majority of authors is of that opinion, see DESBOIS, Traité, n°438, G. BONET,
L’anonymat et le pseudonyme en matière artistique, Thèse Paris 1966, P. SIRINELLI, Thèse, 1985; C.
COLOMBET, n°140.
Contra : TGI Paris 1st ch., June 28, 1978, RIDA, Apr. 1979, 209 (Casadesus has not been allowed to
reveal his attribution of the Mozart Adelaïde Concerto).
299 Paris, June 14, 1950, Un seul Amour, D., 1951, Jur., p. 9, Cass., July 7, 1973, Grabuge, D., 1973,
Jur., p. 363; TGI, Seine, 25 May 1959, Mistinguett, RIDA, 1959, July, p. 148.
300 H. DESBOIS, Le droit d’auteur en France, Paris, Dalloz, 3 ed., n° 451; C. COLOMBET, Propriété
littéraire et artistique, Paris, Dalloz, 1992, 6th ed., n° 149; P. SIRINELLI, p. 307.
301 Paris, Nov. 23, 1970, Fantômas, RIDA, 1971, July, p. 74.
302 Desbois is against waivers of the right of respect, Sirinelli thinks they are possible if the author knows
what he is waiving , he cannot change his mind after the waiver.
303 E. LAUVAUX, 1995, p. 79.
304 Civ. 1st, Apr. 7, 1987, D., 1988, 2°esp. note Edelman, RTDcom., 1988, 224, obs. FRANÇON
53
been widely criticised. It is argued that the court confused the freedom of creation and the
moral right. Further decisions have decided otherwise.305 An agreement which precludes the
author from exercising his right of attribution is void.306
The Court of Appeals of Paris found that an employed American ghost-writer who had waived
his right of attribution under U.S. law, could exercise his right in France, because the waiver
was against the French ‘ordre public’.307 In other words, the rule is that a foreign contract of
transfer will have no effect on French territory.308
V. Duration of moral rights protection
a. Legislation
Moral rights of rights of integrity and attribution are perpetual (art. L 121-1, al. 3 CPI).309 The
right of retract might only be exercised during the author’s lifetime.310 Indeed, this prerogative
disappears with the author, because it is the manifestation of a change in his convictions. Once
he is deceased, he cannot change his mind anymore.
b. Case law
Each heir has the right and the duty to act against violations of the honour and reputation of the
deceased author.311 Deceased authors are entitled to have their right of attribution
respected312, as well as their right of integrity.313 For instance, the unique heir of the painter
Deveria sued ‘L’Express’ magazine for having published a reproduction of a painting of Lizst
with added colours and without mentioning Deveria’s name.314
Heirs can prevent the disclosure of works that the author considered unfinished or poorly
executed.315 If the heirs are inactive, any person having an interest can act to have the moral
305 See for criticisms : F. POLLAUD -DULIAN, ‘Moral rights in France through recent case law’, RIDA
1990, p.135; A. FRANÇON, RTDCom. 1988, pp. 224-227. Civ. 1st, Apr. 4, 1991, Boyer v. Béart, Bull. civ.,
I, n° 119, RIDA, oct. 1991, 125.
306 Cass. Civ. I, Apr. 4, 1991, Boyer v. Béart, RIDA 1991, n° 150, 125.
307 Paris 1st ch., Feb. 1 1989, Anne Bragance, La Nuit du Sérail, RIDA, 1989, n°142, 301. See also
Huston, cited above.
308 Cass. 1st civ., Feb. 7, 1973, D., 1973, p. 363; TGI Paris May 30, 1984, RIDA Oct. 1984, p 220. See
also The Kid case, op. Cit. See also Huston, above.
309 A. STROWEL, 1997.
310 A. LUCAS, Traité, 1994, paragraph 391.
311 Trib. Civ. Seine, July 1, 1936, G.P. 1936-II-584; TGI Paris (réf.), Jan. 14, 1988, Rachmaninoff, RIDA
Oct. 1988, p. 321.
312 Cass. 1st civ. Jan. 11, 1989, Utrillo; see also Rachmaninoff and Deveria case, below.
313 Court of Appeals of Paris, June 14, 1972, Féval, RIDA Oct. 1972, p. 164; TGI Paris May 11, 1988,
Hergé, D., 1989, somm. p. 46.
314 Court of Appeals of Paris, Oct. 31, 1988, Cahiers du droit d’auteur, Apr. 1989, p. 22.
315 Court of Appeals of Paris, Feb. 17, 1988, Staël, JCP, 1989-3376. See Lacan, above (TGI Paris Dec.
11, 1985); Trib. civ. Seine, Nov. 20, 1956, Bizet, RIDA, July 1957, p. 136.
54
rights of the deceased respected.316 However, neither collecting societies nor cultural
organisations can act to defend the moral rights of deceased authors.317
VI. Practical effects of moral rights protection with respect to authors, on the
one hand, and with respect to performers
"Neighbouring rights do not interfere with author’s rights. Consequently, no provision of this
title can be interpreted as to limit the exercise of the author's right." (Art. L. 211-1)
P.Y. Gautier bases this on the principle of the "secondary, incidental" as opposed to the "main"
: no interpretation is possible without a pre-existing work. The author must win unless he
misuses his right.318 Questions of conflicting moral rights must be solved in such a way as to
cause the least damage.319
If the author is dead and there is no heir entitled to inheritance, anyone who has a justified
interest, can to take action (e.g. the Minister responsible for Culture) (art. L. 211-2). In the
Rostropovitch case, cited above, the moral right of integrity of Rostropovitch could not
supersede the right of the director of the movie. As a result, changes to the movie could not be
made as requested by Rostropovitch. Instead, the court ordered the insertion of a warning
immediately after the credits.
316 This is based on the use of the word ‘notamment’ in art. 20 of 1957 Act. See above Montherlant and
‘Les misérables’.
317 F. POLLAUD-DULIAN, 1990, p. 243, does not agree and thinks this right should be given to collecting
societies. See TGI Paris, March 5, 1997, Cinémathèque française, RIDA n° 172, 1997, p. 297.
318 Paris, Feb. 13, 1992, Telefono, D., 1993, 402; TGI Paris, Nov. 26, 1997, Jean Ferrat, RIDA, July
1998, 284; TGI Paris, Jan. 10, 1990, Rostropovitch, D., 1991, 206.
319 P. CHENAIS, in S.M. STEWART, International Copyright law and neighbouring rights, 1989, p. 391,
citing, TGI Paris, May 14, 1974, D., 1974, 766.
55
Summary
Legislation is dualistic. The right of disclosure is quite detailed and is absolute. The right of attribution is
described in similar terms as in Belgium. The right of integrity is absolute. The right of retract is very
detailed and the law stipulates very stringent obligations for its exercise. There is a right to access. Moral
rights are non transferable and partial waivers are allowed under very strict conditions.
Case law is extensive in France. The right of disclosure being absolute, courts are very protective of
authors. The importation of a work which would not have been disclosed or would have been disclosed on
a medium but not on another would be easily be blocked in France. As to the attribution right, French
courts are stricter for architectural works than Belgian for instance but the right of attribution can be limited
for works of applied arts. There is much to say of the right of integrity cases. First of all, destruction is
prohibited. Secondly, case law is very protective of authors in general. For sculptures and architectural
works, courts are more willing to make a balance of interests. Therefore, an author could easily block the
importation of a modified work except maybe for sculptures and architectural works (which are anyway less
easy to transport…).
As to the right of retract, it is interesting to note that there is no decision in favour of the author. It seems in
general, that authors misuse their right of retract. Last but not least, several cases have demonstrated that
a foreign contract allowing alienability of moral rights will have no effect in France. This question (which
relates more to the applicability of private international law rules) can have a major impact on the internal
market.
56
Part IV. Germany
I. Legal framework
II. Analysis of the different moral rights : characteristics
III. Restrictions on moral rights protection as regards certain work categories and certain
categories of rights holders
IV. Alienability and waiver of moral rights
V. Duration of moral rights protection
I. Legal framework
The German Copyright and Neighbouring Rights Act dating from September 9, 1965320,
amended by Art. 5 of the Act of July 19, 1996,321 has implemented all five directives. The last
modification to the Copyright Act was the Information and Communication Services Act which
came into force on August 1, 1997322 and implemented the Database Directive on from
December 11, 1996. This modification did consequently not introduce any changes on moral
rights provisions.
II. Analysis of the different moral rights : characteristics
Section 2 of Chapter 4 of the Copyright Act (art. 12-14) deals with “author personality rights”.
Indeed, in Germany, moral rights are called “Urheberpersönlichkeitsrechte”, but it bears the
same meaning as the expression “moral rights”.323 Germans have a monist conception of
authors' rights (art. 11). Authors’ rights are not purely patrimonial, not purely personal. They are
one and indivisible. Because of their mixed nature, economic and moral rights both influence
each other.
320 Federal Law Gazette [BGBl.] Part I, p. 1273.
321 BGBl. Part I, p. 1014.
322 Full name : Federal Bill Establishing the General Conditions for Information and Communication
Services (IuKDG).
323 A. STROWEL, Droit d’auteur et copyright, convergences ou divergences, Bruylant, Bruxelles, 1993,
n° 401-410.
57
1. The right of disclosure or “dissemination right” (Veröffentlichungsrecht)
a. Legislation
The author has the right to decide whether and how324 the work must be published and to
communicate publicly or describe the content of his work, as long as neither the work nor the
content have been published with his consent (art. 12 §§1 & 2).325 “This latter right would
appear to protect the author against the public description of the elaborated plot of a play”.326
The disclosure right will generally be exercised through the economic right of reproduction.
The right of disclosure applies to transformations/modifications of the work (art. 23). This
means that the author has a right of disclosure on the modifications of a previously disclosed
work.
b. Case law
According to art. 12, a lawyer can prevent the publication of a copyrighted file without his
authorisation.327 Indeed it is not possible to consider there is publication when a document
has only been communicated to a person bound by professional secrecy.
2. The right of attribution
a. Legislation
The right of attribution is defined in the same terms as art. 6 bis of the Berne Convention (right
to bear the name or signature of the author) and adds the right to determine whether the work
must hold an author’s designation and if so, which one (art. 13). The author can also choose to
remain anonymous or choose a pseudonym (art. 10 & 66). It has both negative and positive
aspects : it allows the author to claim authorship and gives him the ability to take action against
usurpation of authorship by other parties. There are certain exceptions. In the field of design,
the right of attribution is reduced : the name of the author is not affixed on objects which are
made in more than one copy.328 The designation chosen by the author is protected by the right
of integrity as well, in the sense that the economic right holder cannot modify it. There is a
presumption of authorship in favour of the person whose name is affixed on the work and on
copies of the work in a customary manner. In case the name of the author does not appear,
the editor will be entitled to assert the author’s rights (art. 10).
There is an obligation to indicate the source in cases of limitations of copyright (i.e. the
exceptions to the economic rights) (art. 63). The obligation to cite the source is not general but
it is only imposed for the limitations set forth in art. 62.329 In certain cases of public
communication, the indication of the source need only be stated if the standard practice so
324 BGH GRUR 1971, 35 : Maske in blau; 1982, 107, 371 (the author has the right to decide in which
form or aspect he wishes to disclose his work).
325 A. STROWEL, 1993, p. 533, n° 414.
326 J.A.L. STERLING, World Copyright law, p. 287.
327 BGH, April 17, 1986, cited by G. POLL, C. VAN RIJ, 1995. See also A. DIETZ, ‘Lettre d’Allemgane’,
le Droit d’auteur, 1990, p. 80, fn. 128 referring to fn. 43 ad 122.
328 E. ULMER, Urheber- und Verlagsrecht, Berlin, Heidelberg, New York, Springer Verlag, 1980, 3è ed.,p.
214-215.
329 i.e. the exceptions stated in art. 45-48, 50, 51, 58-59, 61. See A. DIETZ, in M.B. NIMMER - P.E.
GELLER, International copyright law and practice, New York, Matthew Bender, October 1996, GER-87.
These include, among others, copies of works for juducial use, instructional use, use of public speeches,
quotations.
58
requires (art. 63 §2).330 Art. 63 § 3 specifies what elements of a source have to be indicated in
cases of reproduction of press articles and broadcast commentaries.
b. Case law
Only a natural person can be the creator of a work, in particular for works such as photographs.
In the case of satellite photographs, it is difficult to prove that such natural person took the
photographs.331 The presumption of attribution governs the relationships between authors
and third parties but also between co-authors.332 The author has a right to receive damages
for the economic loss incurred by not being named the author and the consequential loss of
recognition.333
Architectural works
The Supreme court decided that architects have a right of attribution even if the building has an
utilitarian function or a practical function.334 Indeed the wording of art. 13 grants the right to
apply the author’s designation without restriction. The author’s name can appear on the façade.
The power of the architect as to the manner in which his name should be mentioned is not
unlimited. Indeed, the owner can object to a too obtrusive form of designation and the
designation must not have an advertising character.335
When there is a conflict between the owner and the architect, a balance is done by courts. For
instance, the interests of the owner were taken into account in the case where he wanted to
modify the building by adding dormers and mansard roofs while the architect objected to it.336
An architect (interior designer) does not have the right to affix his name and address to the
room decoration he designed.337
Literary works
The quality of the author must be respected, i.e. the author of a script cannot be mentioned as
the author of the manuscript.338 A co-editor who has elaborated the plan of a textbook and
directed the contributing authors has the right to be named as the co-editor even if he later was
dismissed for an important reason.339 The author of a script for a film has the right to be
named in the posters, adverts and other information relative to the film (but not in the
330 A. DIETZ, in NIMMER, GER-87.
331 Aug. 29, 1988, Archiv für Presserecht, 1989, p. 596.
332 Court of Appeals of Munich, Nov. 24 1988, ZUM 1990, p. 186; see fn. 83, RIDA 1993, p. 198.
333 Local Court of Hamburg, Dec. 30, 1997, 36 a C 3007/97.
334 BGH June 16, 1994, BGHZ 126, 245 = ZUM 1995, p. 440 = GRUR 1995, p. 671; English version, IIC,
1996, p. 130 (a library), see A. DIETZ, ‘News from Germany, Copyright law developments in Germany
from 1993 to mid-1997, Part II’, fn 112, RIDA 1998, n°176, p. 166 and 168.
335 BGH June 16, 1994, BGHZ 126, 245. See also IIC, N° 1/1996, p. 130.
336 OLG Munich March 16, 1995, ZUM, 1996, p. 165.
337 RGZ 110, 393 (397).
338 OLG München Schulze OLGZ Nr. 4).
339 Court of Appeals of Berlin, July 5, 1991, GRUR 1992, p. 167, NJW RR 1992, p. 758; cited in RIDA
1993, p. 196, fn. 79. See also Aug. 29, 1988, Archiv für Presserecht, 1989, p. 596; see RIDA, 1993, fn.
80, p. 196. (similar).
59
credits).340 The author of a poem for a chorus had no right to be named in the case of an
orchestra representation without the song.341
Works of plastic art
In the Emil Nolde case, a third party had copied the style and motives of the painter and the
painting bore a false signature of Nolde. There was violation of the right to be protected against
confusion of identity.342 In case of photographic works, if the name of the author is not
mentioned, courts tend to grant additional damages to the immaterial damage. The damage
incurred by the author is thus both pecuniary (material) and immaterial.343 This illustrates the
German monist conception. Economic rights can serve moral rights and moral rights have a
pecuniary content.344
3. The right of respect or right of integrity
a. Legislation
Art. 14 lays down the principle : the author can object to any modification of his work which can
prejudice his legitimate intellectual and personal interests in connection with his work. An
author can also object to modifications which do not distort the work, and which can be known
by a high number of people, when non principal interests can be seen as necessary. Art. 14
goes beyond art. 6 bis of Berne, because it contains potentially more hypotheses than
violations to honour and reputation.
Two types of limitations to the right to object to modifications are set forth in the Copyright Act
(art. 39 §2 and art. 62). Art. 39 § 1 reiterate this principle but art. 39 § 2 allows limitations to it.
No modification to the work, its title or the designation of author, can be made without the
author’s consent (art. 39 §1). Modifications are however possible if the author could not refuse
them in good faith (art. 39 §2). This provision applies to the contracting party and to the owner
of the work. Rehbinder is nonetheless of opinion that a modification in the private sphere
cannot be prevented by the author (art. 23 §1)345. Translations, extracts or changes of key are
allowed if the aim of the work’s use requires it. Modifications to the title or to the work itself are
allowed when the author cannot reasonably refuse and a balance of the respective interests is
performed (art. 39). This latter rule is valid whether there is a contract or not, thus towards
users in general as well as towards contracting parties.
The second category of limitations to moral rights is limitations which arise from the exceptions
to copyright itself (such as uses for research, education, private purposes...) (art. 62 & 63). In
all these cases, the integrity must nevertheless be respected. The principle is that no
340 LG München, I UFITA 23, 1957, 345.
341 Schulze KGZ nr. 18).
342 June 8, 1989, ZUM 1990, p. 180 = IIC 1991, p. 273 = BGHZ 107, p. 384; cited in RIDA 1993, p. 194,
fn. 78.
343 LG Munich, July 26, 1995, ZUM-RD 1997, p. 249 and LG Munich, March 5, 1993, ZUM 1995, p. 57;
LG Düsseldorf, July 14, 1992, GRUR 1993, p. 664 = ZUM 1994, p. 52; LG Münster, May 18, 1995, NJWRR
1996,p. 32 and see RIDA 1998, p. 170.
344 This is also illustrated by cases in which the artist acts against false affixing of his signature to protect
his economic interests, see e.g. OLG Frankfurt Schulze OLGZ 201, 10; OLG München GRUR 1969, 146;
LG München I Schulze LGZ 173, I, 15 and LGZ 184, 3).
345 REHBINDER, p. 179.
60
modification can be done when the use of the work is free, even if the use is private (art. 62).
Art. 62 allows other modifications, such as modifications of photographs if required by the
reproduction mechanism (art. 62 §3), or modifications necessitated by churches or schools (art.
62 § 4) but the consent of the author is needed. If the author does not respond in the month of
the notification informing him that the modification is envisaged, his consent is presumed.346
In sum, there is a possible control of the authors' motivations and a possible balance of the
authors' and users' interests. The control exercised by courts can be described as follows. The
judge firstly examines whether objectively, there is a violation of the author’s rights. In the
affirmative, he determines whether there is a prejudice and if it is the case, whether the
interests of the author are balancing out the interests of the other party. The nature and
intensity of the violation, the affected elements, the level of originality of the work etc. are taken
into account in the balance. In conclusion, the test to assess whether there is infringement of
the right of integrity is objective (i.e. the author needs to prove violation of reputation or honour).
b. Case law
Case law can be distinguished between allowed and prohibited modifications.
Have been allowed:
- modifications by the holder of the economic rights, if usual or secondary but in any case, the
spirit or tendency of the work can never be altered.347
- the correction of orthographic or typing mistakes by the editor or the change of tone of a song
in order to adapt it to the voice range of the singer are allowed.
- shortenings by newspapers’ editors.348
- modifications which are required by the goal of the work’s interpretation or reproduction.
- modifications of a design dictated by the use of the work.
- changes required by censorship for movies.349
- changes by the editor to the contributions of authors, when they are usually allowed in the
case of works of collaboration of the same kind, in case of periodicals (such as reviews and
journals) which publish articles without mentioning the names of authors (art. 44 of the Act on
Edition).350
- modifications when the author has implicitly or expressly stated his approval (art. 39 § 1). The
typical case of an implicit approval is when an author has allowed an exploitation of the work,
and must have expected that transformations will be necessary.351 The court in this case also
stated that interests of the author should be given less weight years or decades after his death.
Have not been allowed :
- changes to a manuscript by another person on the order of the editor.352
- addition of music to a play.
Restoration of the work
346 A. DIETZ, in NIMMER, GER-85.
347 BGH GRUR 1971, 35; Maske in blau; OLG Frankfurt GRUR 1976, 199, Götterdämmerung).
348 REHBINDER, p. 181.
349 OLG Frankfurt am Main, GRUR 1989, 203.
350 BGH GRUR 1954, 80.
351 BGH ZUM 1989, 84 : Oberammergauer Passionspiele II.
352 OLG Dresden UFITA 3, 1930, 201.
61
The right of integrity applies in case of restoration of a work. The interests of the author and the
person asking for the restoration have to be balanced. There seems to be no case law on the
point yet as regards plastic and graphic arts.353 As for architectural works, it was held that an
architect can only prevent the restoration of a building designed by him, including its partial
demolition, if there are no substantial reasons justifying the restoration.354 This implies that
the interests of the owner generally prevail over the interests of the architect.
Destruction of the work
Courts have not recognised that destruction amounts to mutilation under art. 14. In contrast,
legal doctrine affirms that the destruction is the most serious impairment to a work.
Commentators argue that if the owner intends to get rid of the work, he should at least inform
the author if he knows his address and knows that the author has an interest to preserve his
work355, and others go as far as saying say that the owner should offer the author to take the
work back while the author should compensate the owner for the material value of the work.356
On the other hand, Rehbinder notes that the author can only forbid the destruction of his work,
if this destruction would prevent him from exercising his right of access.357
As regards architectural works, the functional aspect of the building will generally weigh in
favour of the owner. The law nonetheless obliges the owner to come to an acceptable solution
for the architect. In a case where the architectural work had been completely destroyed, a court
held that as the work was totally destroyed, the reputation or honour of the author could not
longer be prejudiced.358 As mentioned, German doctrine expresses doubts as regards this
statement; indeed the author depends on the existence of his works for his reputation and
honour.
In case of destruction of an art work by J. Beuys (a children’s bathtub), a court awarded
damages to the artist.359
Architectural works
The balance of interests test is best illustrated in the case of architectural works. On most
cases, the owner's interest, which is based on the functional aspect of the building, generally
outweighs the interests of the architect. This is exemplified by a number of decisions in favour
of the owner, in diverse types of situations. The functional aim of the building, for instance, the
respective functions of a church360 or a school361, is important in assessing the interests.
353 S. VON LEWINSKI, 'Rapport Arts graphiques et plastiques', The moral right of the author, ALAI
Antwerp Congress, 1993, p. 410.
354 Court of Appeals of Frankfurt, Januray 1, 1989, cited by G. POLL, in C. VAN RIJ, p. 103.
355 S. VON LEWINSKI, ALAI, 1993, p. 411.
356 See A. DIETZ , 'The artist’s right of intergity', IIC, vol. 25, n°2/1994, p.191.
357 REHBINDER, p. 179.
358 June 8, 1912, 79 RGZ 379. The court relied on the famous ‘mermaids’ case where the court ruled
that a full destruction of the work does not amount to a violation of the integrity right.
359 See A. DIETZ , ‘The artist’s right of intergity’, IIC, vol. 25, n°2/1994, p. 193; “Urheberechtsprobleme
um Beuys-Badewanne”, 1976 Film und Recht, 176.
360 Church interior case : an architect complained that the installation of an electronic organ in his Modern
protestant church was a distortion of his work. The court ruled that the placement of an organ was a
liturgical necessity and rejected the architect’s claim, see Oct. 2, 1981, 1982 GRUR 107 and A. DIETZ,
‘Letter from the Federal Republic of Germany’, 1984 Copyright 426 et seq., at 431 & 437 et seq.; A. DIETZ
, ‘The artist’s right of integrity’, IIC, vol. 25, n°2/1994, p.188.
62
With respect to transformations and extensions, the owner of a building can make
transformations and extensions (within the limits of the interdiction of mutilations) if the balance
of interests concludes that these transformations are required. The author cannot object to the
extension of a functional building, nor can he object to an extension if the urban authorities
require it. The possibility to undertake transformations and extensions depends on the one
hand, on the type and the dimension of the transformation and, on the other hand, on the
dimension of the moral rights affected.362 For instance, an architect could not object to the
addition of a saddle-roof dormer, the interests of the owner were heavier in the scale.363
Modifications due to repair or reconstruction are allowed under the conditions of good faith.364
The owner can rebuild a building's façade with another and cheaper material than the original,
even if it is not the same aspect but has only a similar aspect.365 He is allowed to rebuild the
totally or partially destroyed building in another form or aspect.366 The owner of a building is
also allowed to rebuild it at the same or another place, using the blue prints, without informing
the architect unless it was otherwise provided in the initial contract.367 In case of emergency
(such as the reconstruction of buildings after the war), the interests of the owners prevail on the
interests of the architects. Thus architects did not have the right to object to reconstruction of
buildings, which was not made on the original blue prints.368 If the author’s rights have been
adjusted in the contract between an architect and the future owner, the owner must be allowed
to repair the work and to rebuild it in case of total destruction. This is valid also in case the
contract does not adapt the author’s rights. In this latter case, both interests must be weighed
in order to determine whether the modifications can be imposed on the author.369 Finally, while
the owner has a right to rebuild, he also has a negative right not to rebuild. For instance, the
owner has no obligation to rebuild the destroyed building into its original form or to preserve the
non destroyed parts of the building.
In contrast, the sole taste or convenience of the owner does not justify a modification of the
building. In Treppenhausgestaltung, the court ruled in favour of the architect because the
owner wished to modify the building only for aesthetic reasons. The owner cannot replace the
architect’s aesthetic judgement by his own.370 The right of integrity protects architects against
deterioration and misrepresentations of the characteristics of the work. For example, the
addition of a floor on a hotel without the architect’s consent is not allowed.371 The architect can
361 May 31, 1974, 1974 GRUR 675; A. DIETZ , IIC, 1994, p.188.
362 OLG Saarbrücken, ‘Verbindungsgang’, Urt. V. 10.12.197 - 1 U 101/97-34, GRUR, 1999, p. 421.
363 OLG Munich, March 16, 1995, ZUM 1996, p. 165. See Dietz, RIDA 1998, p. 172; OLG Frankurt - 6 U
69/85 Oct 24 1985, Schu OLGZ 286 (Gerstenberg) = GRUR 1986, 244 = ZUM 1986, 397 (The balance
weighed again in favour of the owner in the case of a roof modification).
364 Art. 39 UrhG, and see OLG Nürnberg, UFITA 25, 1958, 361.
365 LG Berlin Schulze LGZ 65.
366 REHBINDER, p. 180.
367 REHBINDER, p. 180. See Paschke, GRUR 1984, 858, 864.
368 See e.g. OLG Nürnberg Schulze OLGZ 28.
369 BHGZ 62, 331: Schulerweiterung; OLG Hamburg, UFITA 81, 1978, 263. OLG Frankfurt, GRUR 1986,
244.
370 A. DIETZ, 'L’évolution récente du droit d’auteur allemand (à partir du milieu de 1997)', A & M, 1999/3,
p. 351; Treppenhausgestaltung, BGH, Urt. V. 1.10.98, I ZR 104/96, OLG Stuttgart, GRUR, 1999, p. 230
(to decide if a suppression can be ordered, the interest of the owner of the building to maintain the new
work must be taken into account).
371 LG Berlin, UFITA 4, 1931, 258. Comp. With French decision 'Champs-Elysées'.
63
also object to transformations (such as the inclusion of a sculpture) which can be considered as
the creation of a new work.
Musical works
A German TV channel which bought the right to exploit a series, including the rights of
adaptation and modification, made a shortened version of the series and replaced the original
music by another one. Even if the exploitation rights had been alienated, the original
composer's right of integrity was infringed.372
It has been held that although the work was not altered, its transfer in another context, which
can be prejudicial to the author’s moral interests, infringes his integrity right. For instance, a
pop group did not have to tolerate the fact that its songs were marketed with titles holding a
neo-fascist tendency.373 The use of a musical work in advertisements is not a modification to
the music and thus not contrary to the integrity right.374 It is interesting to note that this case
ruling is not in harmony with the former court's ruling that a transfer of environment infringes the
right of integrity. In case modifications (modifications of the notes' accentuation of a musical
piece by the editor) are of the kind a composer can expect to be carried out by the editor, there
are not an infringement of the right of integrity.375
Literary works
A poem had been used for a song without the author’s consent and edited in a ‘false edition’ of
the ex-GDR paper ‘Neues Deutschland’ in which were included satirical writings on the GDR.
There was infringement of the right of integrity as the poem had been placed in a context which
was not conform to the author’s will.376 When a literary text is reproduced (without the consent
of the author) in journal or magazine other than the original, with important modifications (the
vocabulary was changed and comments were added) and with a citation that the author was
the author of the particular book but also a collaborator in another journal, it violates the
reputation and honour of the writer.377 This decision contrasts with a case which dealt with the
reproduction of a photograph in a pseudo-scientific journal concerning The Virgin Mary’s
apparitions. The fact that the photograph was published upside down was not considered a
distortion. Secondly, the tribunal did not take account of the author’s disapproval with the
magazine’s ideas.378 A newspaper was condemned to pay damages to a journalist because it
published an article under the journalist’s name with many changes.379
Plastic and visual arts
372 Court of Appeals of Munich, Sept. 26, 1991, Cristoforo Colombo, ZUM 1992 p. 307 = GRUR int. 1993,
p. 332; see RIDA 1993, p. 200, fn. 84. Supreme Court judgement to be rendered.
373 OLG Frankfrut am Main, Dec. 20, 1994, Springtoifel, GRUR 1995, p. 215. and see fn. 126, RIDA
1998, p. 180-182.
374 LG Düsseldorf - 12 O 438/83 Feb. 13, 1985, ZUM 1986, 158. Comp. With French case law which
holds the contrary and with GDR case (fn. 378).
375 KG Berlin - 5 U 2928/83 March 29, 1985, ZUM 1986, 470.
376 Court of Appeals of Berlin, RIDA 1993, p. 200 and 202.
377 p. 178, OLG Munich, Feb. 23 1995, NJW 1996, p. 135, Herrenmagazin, see also A. Dietz, RIDA 1998,
fn. 123.
378 OLG Munich, March 21, 1996, NJW-RR 1997, p. 493 and see fn. 125, RIDA 1998, p. 180.
379 Municipal Court of Cologne, March 1998, cited by A. L. SCHELIN, ‘EFJ Seminar report, Moral rights in
the ijnfromation society, a need for harmonization’, Rome, October 1998.
64
The Berlin Court of Appeals tried a case where the author of a statue of Lenin objected to his
removal in East Berlin. The court weighed the interests of both sides (the author and the city
authorities) and decided that it was no longer tolerable to keep the statue and mentioned that
the author should have been aware of the propagandistic purposes of the work.380
For safety reasons and without informing the author, a municipality had filled with material, the
hollow parts of a sculpture which had several sections open in parts. These reasons did not
justify the municipality's act, because it was the municipality and not the author, which decided
to erect the sculpture in that specific place. The court ruled that the municipality could have at
least informed the author of its intention.381
A sculpture, placed in a public place, which has been painted, tagged, wrapped in packaging
material several times, cannot be reproduced on a photograph, manipulated with technical
photographical means and then sold. Even if art. 59 allows the reproduction of works exposed
permanently on public places, art. 62 forbids any modification. Such a reproduction is against
the moral right of integrity of the artist, because by distributing calendars, postcards etc. of the
sculpture, the sculpture would be made known to a number of persons who would never had
known the sculpture otherwise.382
An artist who had decorated an administrative building with paintings and sculptures could
object to the partial removal of these elements of his work by the owner to carry out
transformations of the building, as this was a distortion.383 The owner of a staircase painting
who masks the nudity of mermaids thereon depicted, by painting clothes on them, infringes the
right of integrity of the author.384
In the Oberammergauer Passionspiele case, modifications to theatrical decorations could not
be allowed if prejudicial to the moral interests of the author. However, in his case, the author
had died a long time ago and the court decided that his interests did not hold the same weight
several years after his death. Thus it refused the heirs art. 14 protection.385 Another court
refused to forbid a theatrical representation because of modifications to the libretto without the
author’s consent in view of the enormous economic and moral disadvantages that the
performers of the play would suffer.386
In Maske in blau, the court “expressed the opinion that it is not possible to establish universally
valid guidelines as to what modifications the author cannot refuse in good faith to allow a
licensee to make”.387 The balance that needs to be done between the rights of the licensee
and the moral rights of the author gives leeway to the licensee as to modifications.
380 Nov. 8, 1991, cited in A. DIETZ , 1994, p.193.
381 OLG Celle, March 16, 1994, ZUM 1994, p. 437 and LG Hildesheim Oct. 12, 1993, ZUM 1994, p. 437.
See Dietz, RIDA 1998, p. 174.
382 LG Mannheim, Feb. 14, 1997, GRUR 1997, p. 364 and see A. DIETZ, RIDA 1998, fn. 122.
383 Dec. 8, 1981, 1982 Film und Recht, 510, Hajek case.
384 RGZ 79, 397.
385 BGH - I ZR 15/87 Oct 13, 1988, GRUR, 1989, 106 (Loewenheim) = ZUM 1989, 84. See also A.
DIETZ, ‘Lettre d’Allemagne’, Le droit d’auteur, 1990, p. 81.
386 Frankfurt Court of Appeals, - 6 W 1/89 Jan. 5, 1989, NJW 1989, 408.
387 A. DIETZ, in NIMMER, GER-90.
65
The partial reproduction of a photograph and its distribution was a distortion contrary to art. 14,
because the surrounding spatiality had been “cut away” from the photographed work.388
4. The right of modification/adaptation
German law does not provide a positive right of modification. However, art. 12 of the editing
Act, gives the author a restricted right to modify his work. There is an economic right of
adaptation which requires the author’s consent (art. 23).
5. The right to retract
German law recognises a right to retract (art. 42). Yet courts can control the motivations of the
retract. The author must show that the work does not correspond to his beliefs anymore. It
seems that this article applies to all contracts involving author’s rights. The author must
equitably indemnify the holder of the exploitation right (art. 42 §3). The indemnification must
cover at least the costs he had incurred before he was notified of the revocation. If the author
wishes to resume the exploitation, he must offer to the previous holder the same type of right
on reasonable conditions (art. 42 § 4). The term 'in priority' cannot be found in the Act, so that
it seems that the author does not have choice and must contract again with his previous
contracting party. As soon as the author has exercised his right to retract, the contracting
party’s right of exploitation ceases to have effect (art. 42 § 5). The right of retract cannot be
exercised by authors of pre-existing works and by co-authors (art. 90 referring to art. 88 §1, 2°-
5° and 89).
6. The right of access
German law classifies authors’ rights in three categories : exploitation rights, personality rights
(art. 12-14) and other rights (art. 25-27). The right of access falls under the ‘other rights’
category. Thanks to this right, the author can force the possessor of the original or a copy of
his work to give him the possibility to access it in order to proceed to reproductions or
adaptations as long as it is necessary and as long as it does not prejudice the legitimate
interests of the possessor (art. 25). The Act insists on the fact that this right must be put in
balance with the interests of the owner,389 for instance the respect of the intimacy of the
owner. Moreover, the right of access is limited to the exercise of very specific economic rights.
The right of access does not impose on the owner an obligation to take care of the work in the
interest of the author.390
388 District Court Munich, March 5, 1993, ZUM 1995, p. 57 and see A. DIETZ, RIDA, 1998, p. 174.
389 KG GRUR 1983, 507.
390 REHBINDER, p. 183.
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7. Classification of authors rights in different categories - relationships between economic and
moral rights
7.1. Rights of adaptation and integrity
The modification of a work is possible if the author transferred his adaptation right. Normally,
the reduction or enlargement as well as the suppression of faded colours or unclear/out of
focus effects can be done without the author’s consent (art. 39 §2).391 If the author has
alienated his right of adaptation, he must "suffer" modifications which could infringe his right of
integrity.392
III. Restrictions on moral rights protection introduced in certain Member States
with respect to certain work categories and certain categories of rights holders
1. Software
The moral rights of programmer are the same as of any author. “Up to now, there is no
Supreme Court precedent dealing with moral rights of the author of a computer program”.393
1.1. The right of integrity
The software may not be adapted or changed without the author's authorisation (art. 23). The
author has the exclusive right to publish and exploit the adapted program. The exclusion of
guarantee by the software provider does not amount to a prohibition to make modifications but
is only an exclusion of guarantee.394 The use of foreseen, but not ‘configured’ functions is not
a violation of the author’s moral right.395
2. Audio-visual works
2.1. The right of disclosure
The Act does not state who are the authors of a cinematographic work. It has been held that,
according to art. 12, a film director is entitled to review the final cut of the motion picture before
it is released to his film distributors, more precisely to check if the ‘zero copy’ is not
defective.396
2.2. The right of integrity
a. Legislation
The authors of a cinematographic work have the sole right to object to gross distortions or other
gross mutilations of his work or contribution (art. 93). This is valid during the realisation of the
work as well as during the exploitation phase. This provision gives the producer a large leeway
as to modifications. The authors will have to show that the modifications are gross, concretely,
391 W. MAASSEN, Urheberrechtliche Probleme der elektronische Bildverarbeitung, ZUM, 7/1992, p. 350.
392 A. STROWEL, 1993, p. 536-537.
393 SOMMERBLAD, 'Intellectual Property Protection for Software in Germany' (1997) 1 CTLR 13.
394 Court of Appeals of Munich, OLG Munich - 13 U 2458/86 Oct. 27, 1987, CR 1988, 378 (Chrocziel).
395 Bielefeld, See A. DIETZ, 'Lettre d’Allemagne', Le droit d’auteur, 1990, p. 82, fn. 141.
396 Court of Appeals of Berlin, Oct. 25, 1985, 5 U 580/85, Schu KGZ 86, Movsessian, cited by G. POLL,
in C. VAN RIJ, p. 103. See also A. Dietz, ‘Lettre d’Allemagne’, Le droit d’auteur, 1990, p. 80.
67
that there is a total change in the meaning of the film or a radical transformation of the essential
parts.397 Each author shall take into account the others and the producer while exercising the
right.
b. Case law
It has been held to be an infringement to cut a movie by about one third.398
Ende, the author of a book ‘The never ending story’, could not prevent the distribution and
showing of the film based on his novel even though the court found that the screen play and the
film mutilated severely his novel. The reasons were that as art. 93 had not been waived by
producer, the author could therefore not prevent (within certain limits) changes to the film if they
led to better economic results of the exploitation of the film. Concretely, the author had given
his consent to a similar ending of the film and had not provided an alternative ending. The
author had also withdrawn his name from the credits.399 Moreover, he had had knowledge of
the screenplay before the production of the film and only took action much later.400
2.3. The right to retract
Authors of audio-visual works cannot exercise their right of retract (art. 90 and 95).
3. Joint works
A joint work is a work in which several authors have participated jointly and their contributions
cannot be separated (art. 8). Co-authors enjoy the right of public dissemination jointly.
Alterations are only possible with the consent of all joint authors. However a joint author may
not, without good reason, refuse to give the other co-authors his consent to the dissemination
or alteration of the work. If he refuses to do so without good reason, the other co-authors can
act against his refusal.401
German law also recognises the category of compound works (art. 9).
4. Performers moral rights
a. Legislation
A performer has the right of integrity, but not of attribution. Nevertheless, in the audio-visual
sector, performers can enforce the right to be named as performers on the basis of the industry
practice.402 A performer can prohibit any distortion or other alteration of his performance in
such a way it can prejudice his standing or reputation as a performer (art. 83). “When a
performance is being given jointly by several performers, they will have to show a reasonable
397 C. DOUTRELEPONT, p. 319.
398 Court of Appeals of Frankfurt, Dec. 22 1988, GRUR 1989, p. 203 = NJW-RR 1989, p. 1007; see
RIDA, 1993, p. 200, fn. 85.
399 See A. DIETZ, in NIMMER, GER-90-91.
400 Court of Appeals of Munich, August 8 (or 1 ?), 1985, GRUR 1986, 460; cited by G. POLL, p. 104.
401 V. SPITZ, Intellectual Property Laws of Europe, 1995, p. 176.
402 G. POLL, in C. VAN RIJ, p. 102.
68
degree of consideration for one another in the exercise of this right.”403 This right lasts for the
lifetime of the performer or 25 years after the performance if that is later, in which case the right
is exercised after the performer’s death by his next of kin (art. 83 § 3).
b. Case law
The musical group U2 has been admitted, as a performer, to prevent the distribution of bootleg
recordings of its performances on the basis that technical quality of the illegal recordings was
so poor that it infringed its right of integrity.404
IV. Alienability and waiver of moral rights
The moral right, as the author right in general, is inalienable between living persons; it is only
transferable upon the death of the author (art. 29). For Fromm, Nordemann and Vinck, only the
waiver of the exercise of a specific moral right is possible, if indispensable for the use of the
work, so that the substance of the right stays with the author.405 In other words, the core of the
moral rights can never be waived or transferred.406 In their opinion, in case the author and the
holder of the exploitation rights disagree, the opinion of the author must prevail.407
The author can waive certain of his rights if he is fully aware of the extent of what he waives (for
instance, when he accepts a modification a posteriori). Waivers ex ante are possible but they
are not absolutely binding. However, the right to retract cannot be waived in advance (art. 42
§2). For instance, art. 39 §1 states that an author can allow his contracting party (who has
acquired the exploitation rights) to modify the designation of the author. This means that he can
waive his right of attribution (i.e. publish anonymously) yet he can decide in the future to publish
under his name. In other words, a ghost-writer can always reveal his identity (art. 66 §2). Thus
a ghost-writer’s contract is illegal if there is a waiver of the right to claim attribution (art. 13 §1)
and of the right to be designated as the author (art. 13 §2). In conclusion, German
commentators agree that the waiver is legally binding on the author, except in special
circumstances where such an author can assert a legally protectable interest in becoming
known as the creator of his work.408
It is also possible to concede different moral rights, when third parties' use of the work requires
it. Thus an author can allow a third party to disclose his work. If the author has alienated his
right of adaptation, he must "suffer" modifications which could infringe his right of integrity.409
403 E. ULMER & H.H. VON RAUSCHER, ‘Germany’ in S.M. STEWART, International copyright and
neighbouring rights, 1989, p. 436.
404 Court of Appeals of Munich, July 18, 1991, cited by G. POLL, p. 103.
405 FROMM, NORDEMANN, VINCK, 1994, p. 135.
406 See A. DIETZ, in NIMMER, GER-89, citing E. ULMER, Berlin, 3d ed. 1980, and FROMM,
NORDEMANN, VINCK, 8th ed. Stuttgart, 1994.
407 FROMM/NORDEMANN/VINCK, 1994, p. 135.
408 See A. DIETZ, NIMMER, GER-89, citing ULMER and FROMM/NORDEMANN/VINCK.
409 A. STROWEL, 1993, p. 536-537.
69
An author can authorise third parties to exercise his moral rights in his name.410 Moreover, an
author can empower a collecting society or a publisher to enforce his moral rights in case of
infringement. However, if there is conflict between the two, the author will prevail, because the
author retains his own power of enforcement. The right to claim damages from an infringement
of the moral rights can be waived in favour of a collecting society.411
Status of the employed author
Only the creator of the work qualifies as the author of a work (art. 7). Employers cannot be
initial owners of moral rights and cannot acquire them. This also means that a licensee cannot
act on the behalf of an author for infringement of moral rights (art. 97 §2).412 As has been
mentioned, certain prerogatives of the Urheberpersönlichkeitsrecht can be granted if necessary
for the exploitation of rights. Thus the author can allow his employer to disclose the work.413
Another rule states that the author cannot use his moral rights in a manner that would seriously
impede the interests of the employer.
410 A. DIETZ, in NIMMER, GER-90.
411 BGH GRUR 1987, 128, Nena.
412 OLG Hamburg, Schulze OLGZ 109, 7.
413 C. DOUTRELEPONT, p. 198.
70
V. Duration of moral rights protection
a. Legislation
The authors’ moral and economic rights form a unique entity. Therefore the duration of moral
prerogatives is the same as the duration the economic prerogatives : 70 years after the author’s
death (art. 64).414 The right of retract may only be exercised by the heir if he proves that the
author would have been, prior to his death, entitled to exercise the right (art. 42).
b. Case law
The works of a 19th c. German writer were in the public domain since 1963. A historical and
critical edition of his works were published. However the writer had expressly forbidden to
publish certain works under his own name. The Court of Appeals of Munich prevented the
publication on that basis, whereas in Germany the moral rights are not perpetual. This decision
therefore contradicts the wording of the Act.415
414 ULMER, p. 347-349.
415 May 30, 1996, GRUR 1997, p. 68 = ZUM 1997, p. 56. See also A. Dietz, RIDA 1998, p. 170.
71
Summary
Legislation is monistic. The right of disclosure is stated in quite simple terms. The right of
attribution is very similar to Belgium legislation. The author only has the right to object to
modifications which are prejudicial. Like in France, the exercise of the right of retract is subject
to many strict obligations. There is a right to access the work. Moral rights are not transferable
but waivers are allowed under certain conditions.
Case law in general, is much less protective than in France for instance. German courts use
the balance of rights for almost each right. The best cases illustrating this balance of interests
are architectural works cases (especially for the attribution and integrity rights of architects).
Concerning the right of attribution, German courts are more protective for other types of works
and find for authors in most cases. As regards the right of integrity, case law is not very
favourable to authors. For instance, destruction is not considered as a mutilation. The use of
music for an advert is not a violation of the integrity right. These few examples show the very
contrasting differences between France and Germany in this regard. These differences can be
analysed in light of the potential effects on the internal market. Certain works legally modified
in Germany could not be sold in France. Conversely, an author could not bar the importation of
his modified work in Germany if German law applies and the court decides there is no violation
of the author's moral rights.
72
Part V. Greece
I. Legal framework
II. Analysis of the different moral rights : characteristics
III. Restrictions on moral rights protection as regards certain work categories and certain
categories of rights holders
IV. Alienability and waiver of moral rights
V. Duration of moral rights protection
VI. Relationships between moral rights protection of authors and of performers
I. Legal framework
Copyright, Related Rights and Cultural Matters Act n° 2121/1993 of March 3, 1993, last
amended by law n° 2435 of Aug. 2, 1996. Software, rental and lending directives are
implemented. Satellite and cable, and term directives have been taken into account to the
extent possible as the new Greek Act was drafted at the time these directives were still under
consideration. The full harmonisation of Greek legislation of these two directives has been
achieved by Law n° 2557/1997. The Database Directive has not been implemented yet but a
bill is now in Parliament.416 With the entry into force of the new 1993 Act, moral rights are now
part of author’s rights. Previously, moral rights were protected under the Civil code as rights of
personality (art. 57).
II. Analysis of the different moral rights : characteristics
Art. 1 by stating that author’s rights consist of two types of rights, economic and moral, clearly
chooses the dualistic tradition. Moral rights have the same characteristics as the right in one’s
own personality as recognised by Greek Civil Code art. 57.417 The case law developed with
regard to the right of personality may, in appropriate cases, apply to moral rights.418
Art. 4 §1 enumerates 5 moral rights : the rights of publication, authorship, integrity, access and
withdrawal. This list is not exhaustive but merely exemplative.
1. The right of disclosure
416 G. KOUMANTOS, 'Chronique de Grèce', RIDA, 1999, n°182.
417 G. KOUMANTOS, 'Greece', in M.B. NIMMER - P.E. GELLER, International copyright law and practice,
New York, Matthew Bender, October 1996, §7, 1, a.
418 See Supreme Court, Arios Pagos, dec. N° 171/1957, in Journal of Greek lawyers, 1958, vol. 25, p.
265. Cited by G. KOUMANTOS, in NIMMER.
73
The author has the right to decide the conditions, the time and the place in which the work will
be made accessible to the public.
2. The right of attribution
The right of attribution is phrased generously (art. 4 §1, b). The author has positive and
negative rights. However, the act states that the author has the right of attribution “insofar as it
is possible”. This expression “insofar as possible” reduces the strength of moral rights.
Consequently, the contracting party can invoke this statement to reduce the constraints of
moral rights.419 The power of the author to affirm his attribution is also the power to decide to
use a pseudonym or a remain anonymous.
There is a rebuttable presumption of authorship in favour of the person whose name is written
on the material medium embodying the work (art. 10). There is also a presumption in favour of
the publisher of anonymous and pseudonymous works (art. 11 §1) and of works of deceased
authors (art. 11 §2). The editor of a pseudonym or anonymous work may exercise some moral
rights such as the right of integrity and attribution (to prevent a third party from falsely claiming
authorship) (Art. 11(3)).420
3. The right of respect or right of integrity
The author can object to any deformation, mutilation or other modification of his work, and to
any offence to the author due to the circumstances of the public presentation of the work (art.
4). Like in France, the author does not have to show a violation of his honour or reputation.
Limits to the right : architectural works
In case of architectural works, courts use the criterion of the “interests in presence” (balance of
interests). This means that the integrity and even the existence of a work may be sacrificed if
the owner of a building in which a work is embodied wants to alter or demolish the building (a
fresco for instance).421
In a decision of 1971, an architect was opposed to the owner of a big hotel, because the latter
wished to add a fourth floor to the building.422 The court distinguished between pure works of
architecture like ‘monuments’, to which no modification can be done and works which have an
utilitarian function. In the case of functional buildings, the interests of both parties must be
examined. The fact that the hotel, without the addition of a fourth floor, could not respond to the
clients’ needs prevailed on the integrity right of the architect, because the violation to the moral
right was of lesser seriousness than the damage to that the owner would suffer if he could not
add a floor.
4. The right of modification/adaptation
419 C. DOUTRELEPONT, Le droit moral de l’auteur et le droit communautaire, p. 249.
420 G. KOUMANTOS, in NIMMER.
421 G. KOUMANTOS, in NIMMER , p. GRE- 30.
422 Trib. Athens, dec. 4717/1971, cited by MELAS, ‘Lettre de Grèce’, Le D.A., 1975, p. 227.
74
There is a right of adaptation and translation (art. 3). Greek law does not explain in further
detail the different economic rights.
5. The right to retract
The right to rescind from a contract of exploitation of the work is provided only for scientific and
literary works. The right of retract must be exercised due to a change in the author’s beliefs or
in relevant circumstances and is subject to the payment of pecuniary loss to the other party. It
seems then that the Greek legislator does not oblige the author to indemnify for the expected
profit.
The author who wishes to conclude a new exploitation contract after having used his right of
retract must offer in priority to his former contracting party the possibility of concluding the same
contract or at least under similar terms (art. 4 § 2).423
6. The right to access
The right to access covers the right to access the work, even if the material object incorporating
the work or the economic rights on the work belong to someone else, provided this causes the
least inconvenience to the owner or right holder of the work (art. 4 1, d)). The author can
access his work for any reason (to see his work for sheer pleasure or exercise one of his
economic rights…).
III. Restrictions on moral rights protection introduced in certain Member States
with respect to certain work categories and certain categories of rights holders
1. Software
The Greek copyright Act has not enacted particular moral rights provisions in favour of authors
of software424. However some questions remain unanswered : it is not sure whether the right
to decompile a programme to adapt it in order to achieve interoperability falls under the scope
of economic or moral rights.425
The ‘common law’ of disclosure (art. 4 §1, a)) applies. The employee remains the owner of his
moral rights.
2. Audio-visual works
2.1. The right of disclosure
423 G. KOUMANTOS, in NIMMER, §7, p. GRE-30.
424 C. DOUTRELEPONT, p. 200.
425 L. KANELLOS, 'Greece' in H.D.J. JONGEN - A.P. MEIJBOOM, Copyright software protection in the
European Community, Deventer-Boston, Kluwer, 1993.
75
Moral rights of authors can only be exercised on the definitive audio-visual work, as approved
by its author (art. 34). The principal director of the audio-visual work is considered as the author
(art. 9). 426 Only the director has the power to decide that the work is completed (art. 34 §1).
The director can exercise the disclosure right during the realisation of the audio-visual work and
even the exploitation of the film, unless he has consented not to exercise it.427
2.2.. The right of integrity
No modification of the definitive form of the film can be made without the author’s consent.
Consequently, the producer cannot modify the work. The right to modify the definitive version
belongs exclusively to the director and the “co-directors”. They can object to any modification,
be it a violation or not of the work.
3. Works of collaboration, collective works and composite works
Works of collaboration or work of joint authorship
Joint authorship works are the result of direct collaboration between several authors. All coauthors
are original authors of the work, with equal parts, unless otherwise provided (art. 7 § 1).
Collective works
In the case of a collective work, authors contribute separately to a work under the intellectual
direction and co-ordination of a natural person. This person is deemed the original author of
the collective work. However, the authors remain original authors of their contributions if they
can be exploited separately (art. 7 § 2).
Composite works
The work is constituted by different parts created separately. Authors of these parts are original
co- right holders of the rights in the composite work and are exclusive original authors of their
own parts, provided that they are capable of separate exploitation (art. 7 § 3).428
426 This is a rebuttable presumption.
427 C. DOUTRELEPONT, p. 203.
428 G. KOUMANTOS, ‘The New Greek Law On Authors’ Rights and Neighbouring Rights’, RIDA, January
1994, p. 233.
76
4. Performers moral rights
Performers have the right to be identified and the right to object to any alteration of their
performances (art. 50).429
IV. Alienability and waiver of moral rights
Moral rights are inalienable between living persons (art. 4 (3) & art. 12 §2 of the Copyright Act,
art. 57 and 59 of the Civil code). Nonetheless, art. 14 & 16 make it possible to waive moral
rights in certain specified cases and only by way of written contracts.430 Any acts relating to
the exercise of moral rights which are not in a written form are void. Only the author can invoke
nullity. An author can enter in a contract in which he agrees that his name will not be mentioned
but he cannot be forced by contract not to reveal his name. Such a contract would be void.
Thus, it seems that a ghost-writer can always reveal his identity.
In an employment contract, the author can waive his right of disclosure but this does not
empower the employer to exercise the right of disclosure in lieu and place of the author-
employee.
Performers enjoy the protection of art. 12 §2 and 16.
V. Duration of moral rights protection
Moral rights last 70 years after the author’s death (art. 29 (1)). Moral rights are then exercised
by heirs (art. 12 § 2). After the expiry of the 70 years term, the rights of attribution and integrity
are exercised by the Minister of Culture (art. 29 (2)). Performers moral rights are also
exercised by heirs (art. 50 §2).431
VI. Practical effects of moral rights protection with respect to authors, on the
one hand, and with respect to performers
Neighbouring rights may not affect the protection of authors’rights. In this respect, no provision
of the Act can be interpreted in such a manner as to lessen the protection (art. 53).432
Summary
429 G. METAXAS-MARANGHIDIS, in Intellectual Property laws of Europe, 1995.
430 The new Greek law seems to have implemented the case law on the point, see C. DOUTRELEPONT,
p. 294, note 748.
431 Art. 12 §2 applies to performers.
432 G. KOUMANTOS, in NIMMER, § 9; G. KOUMANTOS, RIDA, 1994, p. 259.
77
Legislation seems to be dualistic in view of the wording of art. 1. The right of disclosure is
stated in very simple terms. The right of attribution seems less protective, as it gives only the
right to be named "insofar as possible". The right of integrity is like in France stated in very
general terms and a prejudice must not be invoked. The right of retract only applies to scientific
and literary works. There is a right to access. Alienability is prohibited and waivers are allowed
under certain conditions.
Greek case law does not reveal any effect on the internal market. Authors generally use their
moral rights to have their economic rights respected. One thing to note is that even if the
statute provides for an absolute right of integrity, in one case concerning an architectural work,
the court used the balance of interest and found against the architect.
78
Part VI. Ireland
I. Legal framework
I. Legal framework
Ireland is the only country of the European Community which has not recognized moral rights to
authors and performers. Copyright and related rights are currently governed by the Copyright
Act, 1963, the Copyright Amendment Act, December 11, 1987, the Performers’ Projection Act,
1968, the Intellectual Property (Miscellaneous Provisions Act, 1998) and a variety of Statutory
Instruments (i.e. two regulations (S.I. n° 26 of 1993 and S.I. n° 158 of 1995) transposing the
Software and Term directives. In addition, the Performers Protection (Foreign countries) Order
1978 (SI 134 of 1978) extends the benefit of the performers’ protection act 1968 to records and
films of performances made in any country which is a party to the Rome Convention.433
In 1999, a Draft bill on Copyright and Related Rights was introduced in the upper House of the
Parliament. It has passed the Senate (Seanad Eireann) on Oct. 19, 1999. The bill should be
enacted in early 2000 and will provide for moral rights for the first time in Irish law. It will also
implement the rental and satellite-cable Directives, as well as bring Irish law on copyright and
related rights into conformity with international obligations under the Paris Act of the Berne
Convention, Rome Convention, TRIPS, WCT and WWPT.
Present situation
To date, there is still no moral right like in the other countries of the European Union.
Accordingly, there is no Irish case law on this issue. The author must base his action on other
rights derived from the common law, such as the law of contracts, the right to privacy, certain
provisions of the Copyright Act of 1963 or introduce actions in defamation or passing off.
Irish law is in some respect similar to British law. As regards the right of attribution, art. 54 of
the 1963 Copyright Act makes it unlawful for any person to insert the name of the author on a
work of which is not his. It makes it unlawful for any person who, with scienter, publishes, sells,
rents, offers, presents commercially with the aim of selling or renting, or exposes to the public
with commercial aims, a work on which the name of a person which is not the author is written;
and for any person who represents, executes for the public or makes a radio diffusion of a work
with knowledge that the attribution is falsely attributed to a person who is not the author.
The right to privacy recognized in the Irish Constitution could be used to protect the right of the
author to the respect of his choice to remain anonymous. The right to publish under a
pseudonym, anonymously or under another denomination is also recognized (art. 15 Copyright
Act). The law of defamation can protect against someone who puts the name of a person as
the author of an obscene or pornographic work, when this person is not the author and has no
connection to the work. The false attribution can also be attacked under injurious falsehood. In
Irish law, there is also an obligation to mention the sources.434
433 A. BURKE - K. HOY, ‘Ireland’, in Intellectual property laws of Europe, G. METAXAS-MARANGHADIS (ed.),
1995, p. 251.
434 C. DOUTRELEPONT, n° 299-303, p. 213-215.
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As regards the right of integrity, art. 54 § 4 of the Copyright Act makes unlawful (only for works
of plastic art) to publish, sell, rent, offer to sell or rent with knowledge, the work under a
modified form, as if it had not been modified. This provision indirectly protects the author’s
reputation. The common law can also protect the integrity of the work.
The future Copyright Act
A few words should be said on the new draft bill. Chapter 7, sections 102-114 treat of moral
rights. Firstly, like in the United Kingdom, the Bill does not provide for a right of disclosure.
Chapter 7 provides in substance for an attribution and an integrity right, as well as a right to
object to false attribution of the work and a right to privacy in photographs and films. These
provisions resemble very much the British CDPA 1988 provisions. The rights are conferred but
numerous exceptions are limiting them. Waivers are possible for all rights (art. 111) although
the Bill states that such rights are incapable of assignment (art. 113).
Summary
Moral rights are not recognised in Ireland and thus there is no case law. However a new statute
should be voted soon which resembles very closely the British CDPA.
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Part VII. Italy
I. Legal framework
II. Analysis of the different moral rights : characteristics
III. Restrictions on moral rights protection as regards certain work categories and certain
categories of rights holders
IV. Alienability and waiver of moral rights
V. Duration of moral rights protection
I. Legal framework
The law relating to copyright is found in two different texts : articles 2575-2583 of 1942 Civil
Code (version of April 1984) and the Act n° 633 of April 22, 1941, amended Nov. 16, 1994.435
Several amendments have implemented the Rental and lending directive436, the Term
directive and the TRIPs agreement437. There also have been three legislative Decrees : the
first one concerning the right of lease and other copyright related rights (n° 204), and the
second, of March 15, 1996 to implement Software Directive (n° 205), and a third Decree n° 154
of May 26, 1997. Currently, further proposals to revise the Copyright Act are under study.
435 Act on the Protection of Copyright and Other Rights Connected with the Exercise Thereof (Legge del
22 aprile 1941 sulla protezione del diritto d'autore e di altri diritti connessi al suo esercizio).
436 N° 685, implementing Rental Directive and consolidating anti-piracy measures.
437 N° 747 of December 27, 1994 (TRIPs ratification) and Decree-Law N° 544 of December 23, 1995
(extending terms of protection).
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II. Analysis of the different moral rights : characteristics
Moral rights are stated in art. 20 to 24. The prevailing literature considers the list of moral rights
provided in the Act (authorship, disclosure, integrity and withdrawal) to be non exhaustive.438
Moral rights apply to both published and unpublished works.439
1. The right of disclosure
The right of publication (to decide whether, when, how to publish) is not expressly mentioned in
the Act but commentators and case law have always recognised it.440 The law recognises a
right to prevent the work from being published (diritto di inedito). Art. 112 states that the rights
of the author (which belong to him during his life) can be expropriated in the interests of the
state. Nevertheless, this provision does not prejudice the author’s right of non disclosure
(inedito), so that the right not to publish remains in the author’s power (art. 111). In addition,
the Act makes it a criminal offence to publish an undisclosed work (art. 171).
2. The right of attribution
a. Legislation
The right of attribution is the right to claim authorship of the work (art. 2577 al. 2 of the Civil
Code and art. 20 of Act). The author has the right to remain anonymous or choose to publish
under a pseudonym.
Holders of exploitation rights cannot commercialise records or analogous mediums without the
indication of the author’s name and the work's title (art. 62). The author also has the right to be
mentioned in a work derived from his. For instance, the author of a novel, which has been
adapted for a movie, has the right to have his name mentioned in the film credits.441 If the
work is completed by another person than the employed author, the employer has the
obligation to indicate that the work has been completed by another person. If the original
author does not want to have his name associated with the name of the other author he can
remain anonymous.442
The author of a pseudonymous or anonymous work can always reveal his identity at any time
and exercise his rights (art. 21, al. 1). The contracting parties of the author so revealed, will
have to indicate the author’s name in all publications, reproductions, transcriptions, executions,
438 G. JARACH, Diritto d’autore, Mursia, Milano, 1983, p. 45; E. PIOLA CASELLI, Il diritto morale
d’autore, Dir. Aut. 1930, p. 22 ff.; G. AULETTA, Marchio, Diritto d’autore sulle opere dell’ingegno,
Commentario-Scialoja-Branca, Zanichelli, Bologna-Roma, 1977, cited by A. FRIGNANI and P. CERINA,
'Italy' in H.D.J JONGEN - A.P. MEIJBOOM, Copyright software protection in the European Community,
Deventer-Boston, Kluwer, 1993. See also G. MONDINI, in C. VAN RIJ, ed., Moral rights, reports
presented at the meeting of the International Association of the Entertainment lawyers MIDEM, Cannes,
1995, pp. 105-113. This author cites a case where an artistic work has been exhibited by its owner in a
way considered prejudicial to the author’s reputation (exhibition of the work with pornographic objects).
439 G. MONDINI, p. 110.
440 G. MONDINI, p. 110.
441 See e.g. Trib. Rome, July 15, 1980, D. Aut., 1981, p. 420; Cass., 5 Sept. 1990, Foro it., 1990, voce
diritti d’autore, n° 52-53. See also G. MONDINI, p. 107.
442 Pretore, Roma, Aug. 30, 1966, D. Aut., 1966, p. 396.
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representations, recitations and diffusions in any other form of communication of the work to the
public (art. 21 al. 2).
The author also has a right (not moral but personal) to deny authorship of works falsely
attributed to him.443 In this case, he can act to obtain damages against misappropriation of his
name and reputation.444
In addition to these general rules, there are special rules concerning the right of attribution :
- Unless otherwise agreed, the author of a contribution to a collective work, which is not a
journal or a review, can request that his name be mentioned on the reproduction of his work,
according to the customary rules (art. 40 al. 1).
- The name of the author and the work's title must be broadcast simultaneously with the
broadcasting of the work (art. 54).
- The name of the photographer must be mentioned on the reproduction of photographs in
anthologies for school use and more generally in scientific or didactic works (art. 91).
- The editor must indicate the author’s name or pseudonym on copies of the work, or publish
the work anonymously if so provided in the contract (art. 126 al. 1).
- Similarly, the party who has been granted the right to represent and execute the work, must
mention the name of the author and the title of his work, and possibly of the translator and
adapter (art. 138 al. 1).
b. Case law
Colgate Palmolive had included tapes of songs of famous Italian artists in packs of detergents.
Authors sued because they did not authorise the use of their names and works to advertise a
product.445 The court held that the exploitation of the fame of these authors could be
detrimental to their name and image. Consumers could deduce that authors had given their
consent to this advertising campaign, which they did not. Authors could secure their right to
have an exact representation of their personality.
3. The right of respect or right of integrity
a. Legislation
The right of integrity is defined as the right to object to any distortion, mutilation or any other
modification of, and any derogatory action in relation to the work, which would be prejudicial to
the honour or reputation of the author. (art. 20 §2, similar to art. 6 bis of the Berne Convention
and art. 2577 al. 2 : to object to modification, mutilation etc. if there is a prejudice to honour or
reputation). The terms ‘reputation and honour’ have been interpreted in the broad sense by
courts : they include the author’s moral, political, artistic, and scientific ideals and principles and
more generally the author's overall prestige and personality.446
The holder of the economic rights cannot communicate the work to the public if he has made
additions, cuts or modifications without the consent of the author. Naturally, if the author has
443 G. MONDINI, p. 107.
444 M. FABIANI, in NIMMER, § 7.1. A, p. ITA -53.
445 Pretore Roma, Nov. 15, 1986, D. Aut., 1987, p. 155. See M. FABIANI,' Lettre d'Italie', Le droit
d'auteur, 1989, p. 27.
446 G. MONDINI, p. 108.
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consented in a contract to adaptations, he cannot object to it (such as a contract of
adaptation).447
Limits to the right of integrity
The right of integrity is not absolute. In several fields, like journalism or music, the right of
integrity can be reduced. For instance, the editor of a journal has the right, unless otherwise
agreed, to modify the journalist’s article if it is necessitated by the nature or purpose of the
journal (art. 41). Similarly, the authors of musical works must suffer modifications requested by
the technical necessities of the recording (art. 63). Special rules apply to contracts of
representation and execution. The contracting party cannot make additions, suppressions or
variations to the work without the author’s consent, nor can he replace the main performers and
the conductor and the chorus, if they were designated with the author’s agreement. He can
only replace them if there are serious reasons (art. 138 al. 2).
Destruction
The destruction by the owner of the original and unique work is for certain authors, not a
violation of the right of respect.448 Others say that the destruction of the only copy of an
author’s work can be a violation of his honour or reputation.449 This question has never been
raised in court. For Mondini, there is no rule that may oblige the owner to maintain the work in
good condition.
b. Case law
The use of musical compositions for their synchronisation with TV adverts and the distribution
of records within the context of promotional campaigns in association with consumer products
constitute an infringement of the right of integrity.450 The fact that organisers of an exhibition
chose paintings which were, in the author’s opinion, not sufficiently representing the author's
art is not a violation of the right of integrity. No authorisation is required from the author to
organise a public exhibition of his works. 451
Art. 5 of the Act states that official documents are not protected by copyright. Consequently, a
court has ruled that a judge does not have moral rights on his judgements. The judge could not
prevent a journal from cutting passages in her judgement even if she believed these cuts
modified the meaning of her judgement.452
Architectural works
447 The Court of Appeals of Rome has nevertheless reaffirmed that the author keeps his moral right after
the transfer of his right of adaptation, see Rome, March 25, 1985, D. Aut., 1986, p. 74. (Contra : Trib.
Rome, Feb. 21, 1970, Dir. Aut., p. 103). See C. DOUTRELEPONT, p. 295. This might mean that the
author can object to modifications which violate his honour or reputation.
448 The Court of Cassation ruled in 1951 that the destruction of a work of the plastic arts is not within the
scope of art. 20 §1: Cass. 21 July 1951, Foro it., 1952, I, 1061. For M. FABIANI, this question is
controversial; see FABIANI, in NIMMER).
449 G. MONDINI, p. 110.
450 G. MONDINI, p. 109. See also Colgate case discussed in the right of attribution section.
451 Court of Appeals of Venice, Feb. 8, 1955, Dir. Aut., 19515, p. 48 and Giust. civ., 1955, I, 984; see also
Roma, May 13, 1961, Dir. Aut., 1961, p. 366, Stradone v. Exposition quadriennale de Rome.
452 Pretore Roma, Apr. 19, 1989, Dir. Aut., 1991, p. 391, cited and commented by M. Fabiani, RIDA,
1994, n° 161, p. 173-177.
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The author cannot object to necessary modifications during the construction of the work (art. 20
al. 2). If the work has an “important artistic character”, the architect must be committed to the
study and execution of these modifications (art. 20 al. 2).453 In 1979, the Court of Appeals of
Bologna has clarified the extent of the modifications and the moment at which they can be done
as well as the concept of necessity.454 “Once the architectural project is submitted to the
contracting party, it can be modified, as long as it does not prejudice the honour or reputation of
the author. On the contrary, if during the realisation of the project, modifications are needed,
they can be done, even if it prejudices the author’s honour or reputation. The necessity to
modify can result from technical or normative reasons, or an incorrect prevision of the cost of
the work’s completion. The Court of Cassation approved this decision.455 In 1991, the Court
of Cassation has in turn clarified the meaning of the word “necessary”.456 Necessity can justify
modifications which can even alter the conceptual harmony or functionality of the building. The
appreciation of the violation of the reputation or honour cannot result from negative global
opinion of non-experts or in other words, from citizens of good faith.
4. The right of modification and the right of adaptation
Two rights are recognised to authors : the exclusive right of the author to modify his work and
the right of adaptation (modify and transform the work in any other way). The author has also a
right of translation.
The right of modification is categorised as an economic right (art. 18, 4). The author has the
right of modification for the first but also for the subsequent publications of the work (art. 129).
The modifications (which do not prejudice the author’s honour or reputation) must be
authorised by him (for the editing sector, see art. 126, 1 a).
With respect to architectural works, the author cannot object to modifications rendered
necessary in the course of the realisation of the work and even after the work has been
completed (art. 20 al. 2). However, if the competent state authority decides that the work has
an important artistic character, the author has the right to modify the work (art. 20 al. 2). It is to
be noted that the author who has known and accepted modifications of his work cannot act to
prevent their execution or to demand their suppression (art. 22).
5. The right to retract
The right to retract is defined as the right to withdraw the work from commerce for serious moral
reasons, subject to the obligation to indemnify anyone who has purchased the economic rights
to the work which is withdrawn (art. 142).457 This right extinguishes at the death of the author.
The “serious moral reasons” include political, religious, ethical, intellectual or artistic reasons.
The seriousness is showed by the fact that the circulation of the work would seriously contradict
453 C. DOUTRELEPONT, p. 311.
454 Bologna, April 23, 1979, D. Aut., 1980, p. 446.
455 Cass. Nov. 3, 1981, Foro it., 1982, I, p. 72.
456 Cass. Oct. 18, 1991, Foro. It., 1992, I, p. 2480. C. DOUTRELEPONT, p. 312.
457 G. CUONZO and J. HOLDEN, Intellectual Property Laws of Europe, G. Metaxas-Maranghidis, 1995,
p. 272.
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his change in personality or would expose him to criminal sanctions or political or religious
persecutions.458
Some authors think that in case it is the unique original exemplary of the work which has been
alienated, the author can prevent the owner from exploiting the work commercially, thanks to
his right of retract. However, the author cannot prevent the owner from using the work in a
private sphere.459 The author who has exercised his right of retract and decides to transfer
his economic rights once more, is not obliged to grant the right of exploitation in priority to his
former contracting party. The existence of serious moral reasons is sufficient. The author must
nevertheless send to his contracting party, all his sub-contracting parties and to the public an
express declaration in which he states that he wishes to use his right of retract. He must have
the retract published (art. 142 §2). In the year of the publication, users can act to obtain
indemnification or judicially object to the exercise of the right of retract. The judge must then
appreciate the seriousness of the moral reasons. If the author does not pay the indemnity
during the time allocated, the effect of the decision ceases (art. 143).
6. The right of access
The right of access does not exist.
458 G. MONDINI, p.110.
459 L. C. MARCHETTI & L. UBERTAZZI, Commentario breve alla legislazione sulla proprieta industriale e
intellettuale, Padova, Cedam, 1987, p. 142, IV. Trib. Milan, Jan. 27, 1975, D. Aut., 1975, p. 94.
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7. Classification of authors' rights in different categories - relationships between economic and
moral rights
7.1. Rights of adaptation and integrity
If the author has contractually consented to adaptations, he cannot object to them.460
III. Restrictions on moral rights protection with respect to certain work
categories and certain categories of rights holders
1. Software
The Italian legislator has not enacted different provisions regarding moral rights of software
creators. Thus moral rights remain vested in the author, unless otherwise provided. For
instance, the right of disclosure as to software works is the same as for other works.461
2. Audio-visual works
The co-authors of a cinematographic work are the artistic director, the author of the subject, the
author of the script and the author of the music (art. 44). The Act does not say if audio-visual
works fall into the category of works of collaboration but it seems by the wording of the Act that
they indeed are. The Act does not state at which moment the work must be deemed completed
and thus there is no rule stating that the authors can only exercise their moral rights on the
completed work.
460 See above, as discussed in the right of integrity and right of modification sections.
461 Similar in Belgium, see C. DOUTRELEPONT, p. 201.
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2.1. The right of disclosure
In case the film as modified needs to be disclosed, the author can demand not to be mentioned
as the author. In this respect, the right of attribution influences the right of disclosure.
The Act does not treat of the problem of the impossibility for the director to complete the work
for unforeseeable reasons (force majeure). This issue is regulated only for publishing
contracts. However, legal doctrine and courts admit that the rule applying to the publishing
sector can also be applied to the audio-visual sector. Thus the producer can have the work
completed by another director, with the obligation to mention that the work was completed by
another person.462 Yet subsequent case law has ruled that the director can object to the
producer's attempt to have him replaced and to the attempt to modify the spirit of the work.463
2.2. The right of attribution
Authors of cinematographic works have the right that their names, with the indication of their
professional quality and of the contribution to the work, be mentioned during the projection of
the movie (art. 48).464
2.3. The right of integrity
a. Legislation
The producer cannot carry out modifications, transformations or translations of the work without
the authors’ consent (the authors described in art. 44) (art. 47). Restrictions to the right of
integrity are limited to the ones that are necessary. In this sense, the producer has the right to
modify the work in the extent necessary (art. 47). The statute provides for arbitration if there is a
disagreement between the producer and certain co-authors on the necessity of the
modifications. The role of the arbitrator is performed by a college of “technicians” who are
designed by the Ministry of Culture. Its decisions are definitive.
The right to object to publication of the modified work, as compared to the definitive version,
can be invoked if it causes a prejudice to the honour or reputation of the author (art. 20). The
author can demand the destruction of the modified version of the work only in extremely serious
cases (art. 161).
The authors of literary or musical parts of a movie can use their works separately, provided it
does not prejudice the rights of utilisation which belong to the producer (art. 49).
462 C. DOUTRELEPONT, p. 325-326. See FABIANI, La protezione giuridica dell’opera audiovisiva, Dir.
Aut., 1991, p. 428. Trib. Roma, Aug. 22, 1957, Dir. Aut., 1958, p. 82; Pretore Roma, Oct. 8, 1968, Foro it.,
1968, I, 3107.
463 Pretore Roma, Jan. 20, 1970, D. Aut., 1970, p. 80.
464 See e.g., Trib. Milan, July 29, 1965, Dir. Aut., 1967, p. 63; Trib. Rome, Aug. 11, 1958, Riv. Di diritto
industriale, 1959, II, p. 109.
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b. Case law
A lot of cases involved the interruption of broadcasting of movies by adverts. A line of case law
appreciated subjectively in each case if the adverts prevented viewers to evaluate the quality of
the work.465 The courts found that interruptions could constitute derogatory acts and prejudice
the authors' reputation but a number of factors had to be taken into account such as the nature
of the film, the frequency and duration of the interruptions, and any resulting unfavourable
opinion of the character of the work by the audience.
In 1989, the Court of Appeals of Rome overruled this trend.466 The court ruled that any
interruption of a broadcast movie does in any case alter the unity of the work. The court did not
examine if the ads constituted a violation of the author’s honour or reputation. The interruption
by ads is in itself a prejudicial act, unless proof of the contrary is given, for instance if the author
has consented to it. The frequency or duration of the interruptions cannot be a criterion to
evaluate the prejudice. This decision was rendered before the enactment of the new Act
regulating the public and private broadcasting. Art. 8 § 2-4 of the Act allows interruptions inside
protected works. This provision originates from the Directive on Television without borders.467
As regards case law on the colouring of black and white films, commentators' opinions diverge.
Some believe colouring is only an adaptation, so that it should be comprised in the rights of the
producer, while the majority believes that the colouring is always an alteration subject to the
application of the right of integrity. Such colouring would only be an infringement of the integrity
right if it is detrimental to the author’s reputation or honour.468
3. Works of collaboration and collective works
Works of collaboration
The work of collaboration is defined as the work created by several authors whose
contributions cannot be separated. Moral rights can be exercised by all authors separately but
the work cannot be disclosed nor modified nor used in a different form than the one of first
publication, without the consent of all authors. In case of unjustified refusal by one or several
authors as to the disclosure, modification or new use of the work, courts can authorise the other
co-authors to disregard the refusal (art. 10).
Collective works
The author of a collective work is the person who organises and directs the creation of the work
(art. 7). Within the limits of his contribution, the person who has elaborated a work shall be
deemed to be the author of such contribution. However, the person who only provides the
means to produce the work and takes care of its diffusion, such as in the case of radio plays
created and broadcast with the aid of broadcasting organisations, cannot be considered as the
author of the work.469
465 Tribunal, Rome, May 30, 1984, Dir. Aut., 1985, p. 68; Pretore, Rome, Dec. 30, 1982, Dir. Comm.
1983, 349.
466 App. Roma, Oct. 16, 1989, Serafino II, Foro. It., 1989, p. 3201; Dir. Aut. 1990, p. 98.
467 C. DOUTRELEPONT, p. 272-273.
468 G. MONDINI, p. 109.
469 A. Roma June 30 - Sept. 12, 1955, Dir. Aut., 1956, 42.
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As mentioned earlier, the author of a contribution to a collective work, which is not a journal or a
review, can request that his name be mentioned on the reproduction of his work, according to
the customary rules (art. 40 al. 1). A newspaper is a collective work so that the publisher who
collects the articles is the right holder of author’s rights. Journalists are consequently deprived
of their right of attribution.
The author of the text of a dramatico-musical work, of a musical composition with words, of
choreographic works or pantomimes, cannot use it in conjunction with other musical works
except in certain cases (art. 35).
4. Performers moral rights
a. Legislation
Performers have less strong moral rights than authors. The right of attribution is granted only to
performers who take the leading parts of dramatic, literary or musical works (art. 83). The right
of integrity is recognised to performers only in cases where there is a prejudice to their honour
or reputation (art. 2579 of the civil code and art. 81 of the Act). Soloists, conductors, whole
choirs and orchestras who perform works have the right to object to publication of their
performance which may be prejudicial to their honour or reputation. Additionally, performers
can invoke the civil code or other articles on rights of personality to protect other personal
interests.470
b. Case law
In this respect, performers such as film actors, have been recognised the right to object to the
dubbing of their voice if detrimental to their honour or reputation.471 An artist can also object
to a remix of one of his records reproducing his performance.472 If nude scenes, not
previously foreseen, are introduced in a movie, there is a violation of the artist's right of
integrity, yet only if these scenes alter the meaning and the goals of interpretation.473 The
reproduction of a piece of clothing and an accessory which always have characterised an actor
and which are susceptible to introduce in the public’s mind an association between the product
subject of the advertising and the actor himself, is a violation of the author's personality
rights.474 An artist can object to the commercialisation without his consent, of a calendar with
reproductions of his signature and of photographs representing him.475
IV. Alienability and waiver of moral rights
Moral rights of attribution and integrity are inalienable (art. 22 and for the right of retract, art.
142, al. 2). They cannot be transferred and are independent of pecuniary rights.
470 M. FABIANI, in NIMMER, § 9. 1.a.i, p. ITA-72. Art. 7-10 Civil Code.
471 Pretura Roma, Jan. 22, 1972.
472 G. MONDINI, p. 111.
473 Pretura Roma, July 30, 1978.
474 Pretura Roma, April 18, 1984.
475 Pretura Roma, Feb. 18, 1986.
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The author cannot be forced to renounce to the attribution of his work (art. 21 al. 2). The
doctrine sees in this provision the nullity of the contract by which the author accepts that his
work be published under the name of a third party.476 Thus it seems that a ghost-writer will
always be able to reveal his identity.
The right of respect can be waived but the transfer of the exercise of the right to another person
is forbidden.477 A contract which would transfer the right to prohibit adaptations and would
prejudice the author's honour or reputation under art. 20 §1 would be void.478 Notwithstanding
the principle of inalienability of moral rights, an author who is aware of and accepts
modifications of his work, shall not longer be entitled to prevent a performance of its modified
form or demand its suppression (art. 22).479 “An author may not assign the benefits deriving
from future rights or future technical developments and may join in the legal proceedings
regarding his works even after the assignment of his economic rights (Art. 119 and 165).”480
Moral rights cannot be exercised by collecting societies.
Status of the employed author
Rights of disclosure and attribution
The Italian 1941 Act does not treat of the status employed authors.
Yet the doctrine is of opinion that the inalienability of the moral right constitutes an implicit
contractual clause to which parties cannot derogate.481 Moral rights’ strength is however
reduced, once the author has transferred his economic rights. The employer cannot receive the
work before it is completed and only the author has the power to decide of the completion of his
work. The work cannot be published without the consent of the author but this consent can be
implied if the author delivered the work to the employer. If the work is not completed and the
author cannot finish it and a substantial part of it has been made, the employer can have it
completed be someone else and disclose the whole completed work. The right of attribution of
the first author must nevertheless be respected (art. 121).482 However, the original author
may require his name not be mentioned together with the second author’s.483
Right of integrity
The employer cannot modify the work without the consent of the author, once the employer has
accepted it. Technical modifications are allowed when necessary to adapt the work to the use
for which it is intended, for example, in the fields of architecture and audio-visual exploitation
(art. 20, 22, 41 and 47).484
476 L.C. MARCHETTI & L. UBERTAZZI, 1987, p. 472. Cass. July 14, 1956, Foro padano, 1957, p. 421.
477 See Trib. Rome, June 12, 1989, Diritto dell’informazione e dell’informatica, 1990, p. 186. The doctrine
agrees with the tribunal that moral rights can be waived but not transferred. See MARCHETTI &
UBERTAZZI, 1987, p. 476.
478 See MARCHETTI & UBERTAZZI, 1987, p. 476.
479 G. CUONZO and J. HOLDEN, 1995, p. 272. See above, right of integrity and of modification.
480 G. MONDINI, p. 106.
481 C. DOUTRELEPONT, p. 196.
482 These considerations have been developed by the doctrine; see M. FABIANI, 'Le droit d’auteur en
Italie', 33.1, Droit des affaires dans les pays du marché commun, Tome IX, Paris, Navare, éd. Jurisclasseur,
Jupiter, mise à jour, 1977-1978.
483 Pretore, Rome, Aug. 30, 1966, Dir. Aut., 1966, p. 396.
484 M. FABIANI, in NIMMER, § 7.4, p. ITA-57.
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V. Duration of moral rights protection
The rights of attribution and integrity last perpetually and can be exercised by heirs (art. 23). If
a public purpose requires it, the action can be exercised by the President of the Council of
Ministers, upon the advice of the competent association (art. 23 al. 2). The right to withdraw the
work from commerce can only be exercised by the author in person, and thus it expires with the
author. At the death of the author, the rights of attribution and integrity and the right to prevent
the works to be published are asserted without limitation of time to the author’s spouse, children
in the absence thereof, to other relatives (art. 23 and 24). If there is no agreement between the
heirs, the judge decides after having heard the ‘prosecutor’ (pubblico ministero). The judge
always respects the author’s will, when it has been expressed in a document (art. 24 al. 4).
92
Summary
Legislation is dualistic in Italy. The right of disclosure is not recognised but most commentators
agree that it is implicitly comprised in the legislation. The right of attribution is stated in similar
terms as the previously discussed countries with additionally, specific rules applying to different
types of works. The right of respect is not absolute : the author only has the right to object to
prejudicial modifications. The right of retract is granted under strict conditions and there is no
right of access. Alienability is prohibited but waivers of rights of attribution and respect are
possible and terminable at will.
There is a certain amount of case law in Italy, all of which has not been accessible. The cases
show no effects potential or existent on the internal market. The courts have largely interpreted
the notions of honour and reputation in the case of the right of respect. In the sector of audiovisual
works they even have been as far as not requiring a showing of violation to either one of
these notions.
93
Part VIII. Luxembourg
I. Legal framework
II. Analysis of the different moral rights : characteristics
III. Restrictions on moral rights protection as regards certain work categories and certain
categories of rights holders
IV. Alienability and waiver of moral rights
V. Duration of moral rights protection
VI. Relationships between moral rights protection of authors and of performers
I. Legal framework
The Copyright Act of 29 March 1972485 was first amended on April 24, 1995 to implement the
Software Directive. It was subsequently modified to implement the term, cable-satellite and
rental directives on September 8, 1997. There is currently a draft bill (n°4 431) on copyright,
neighbouring rights and databases and to allow the alienability of moral rights. The Copyright
Act is completed by the Act of September 23, 1975 on the protection of performers, producers
of phonograms and broadcasting organisations.486 Luxembourg has in 1975 approved the
1971 version of the Berne Convention.
There is also a regulation of October 26, 1972 concerning the execution of art. 48, par VI. Of
the 1972 Copyright Act, as amended and completed by regulation of January 16, 1998 on
Copyright law.
II. Analysis of the different moral rights : characteristics
In Luxembourg, the moral rights provision is formulated similarly to art. 6 bis of Berne. Moral
rights are stated in art. 9.
1. The right of disclosure
The statute is silent as regards the right of disclosure. Indeed the statute, in its art. 9, rewrites
art. 6 bis formula which does not treat of the right of disclosure. Thus it seems that the right of
disclosure does not exist in Luxembourg. However, the statute mentions “communication to the
public” in several articles (art. 8 §1 al. 2, 13 § 1 & 2, 14 §1, 24 §1, 27 §2) to give the starting
point of the duration of the protection for instance.487 The intent of the legislator to ban
completely the concept of publication from the new Copyright Act has not totally succeeded. In
485 See J.O. N°23, April 12, 1972, p. 810.
486 See J.O. n°62, Sept. 30, 1975, p. 1354.
487 E. BUNGEROTH, ‘Luxembourg’, in MÖHRING, SCHULZE, ULMER, ZWEIGERT, (ed.) Quellen des
Urheberrechts, 1977, p. 4.
94
each of these dispositions, the term ‘publication’ must be understood as only meaning the
diffusion of material copies.488 However, article 82 protects the right of disclosure.
2. The right of attribution
There is a rebuttable presumption of authorship in favour of the person whose name is affixed
on the work according to the customs (art. 5). The editor of a pseudonymous or anonymous
work is considered to represent the author in his relations with third parties (art. 8). The author
of an anonymous or pseudonymous work can always reveal his identity and exercise his rights.
Third parties must then respect the author’s will to reveal his identity (art. 8 §2).
3. The right of integrity
The Act formulates the right of integrity similarly to art. 6 bis of the Berne Convention as the
right for the author to protect his work against any action that might be detrimental to his honour
or reputation (art. 9 §1).
4. The right of modification or adaptation
The author of a musical, dramatic or literary creation has the right to authorise translations,
arrangements, adaptations or other transformations of these creations. The author of a
cinematographic reproduction has the exclusive right to authorise the adaptation and the
cinematographic reproduction of his works as well as the commercialisation of these adapted or
reproduced creations (art. 16).489 These rights are of an economic nature.
5. The right to retract
6. The right of access
These two rights do not exist.
III. Restrictions on moral rights protection introduced in certain Member States
with respect to certain work categories and certain categories of rights holders
1. Audio-visual works
The rules applying to works of collaboration do not apply to audio-visual works. The producer is
at the outset and exclusively the owner of the copyright in the audio-visual work (art. 27). The
488 E. BUNGEROTH, in Quellen des Urheberrechts, p. 4.
489 P. FELTGEN, ‘Luxembourg’, in Intellectual Property Laws of Europe, G. Metaxas-Maranghidis, 1995,
p. 297.
95
producer is the person whose name is written on the work as being the producer, according to
the customs (art. 27). Nevertheless, it cannot be construed, neither from the statute nor from
case law, that the producer owns the moral rights. The question of waivability is thus open.490
However, a possible attribution waiver is subject to the rule under which the author of an
anonymous or pseudonymous work can always reveal its identity and exercise his rights (art.
8).
2.1. The right of disclosure
See above.
2.2. The right of attribution
There are no specific rule concerning the right of attribution of authors of audio-visual works.
Reference is to be made to article 9.
2.3. The right of integrity
If the contract between the producer and the authors of pre-existing works (except the author of
musical works used in the movie making) does not state otherwise, all exploitation rights belong
to the producer and he can modify the work if it is indispensable to its exploitation, as long as
these modifications do not violate the honour or reputation of the authors.
The producer of the movie can also modify previous works (except musical works) as long as
the moral rights of these authors are not infringed (art. 28).
3. Works of collaboration and collective works
Works of collaboration (Gemeinschatfs werke) (art. 6 & 7)
Works of collaboration are works made by several authors, in which their single contributions
cannot be separated. The authors must regulate their rights in an agreement; if they did not do
so, courts shall settle disputes. Each author separately has the right to act in his name (and
without the co-operation of the other authors) against violations of the author right, and ask for
damages (art. 7 § 2). The authors cannot use their contribution in others works of
collaboration.491
If the works are composed of words or music, the composer or the author cannot work with a
new collaborator but can exploit his/her contribution separately as long as it is not detrimental to
the exploitation of the joint work (art. 17 which relates to musical, literary, dramatic and
dramatico-musical works).
Collective works
These works are not the product of work made in collaboration between authors but the result
of a collection of previous works. The author’s right (if there is one) belongs in exclusivity to the
producer of the collective work (art. 1 §5).492
490 C. DOUTRELEPONT, N° 375, p. 250.
491 E. BUNGEROTH, Quellen, 1977, p. 5.
492 E. BUNGEROTH, Quellen, 1977, p. 6.
96
4. Performers moral rights
The rights of performers are set forth in the September 23, 1975 Act (art. 3-6). However the
statute is silent concerning their moral rights.
IV. Alienability and waiver of moral rights
The moral right is inalienable and remains to the author even after transfer of his economic
rights (art. 9 §1). A waiver of the exercise of specific moral prerogatives is in principle possible.
The statute does not state whether the right of integrity is alienable or waivable, but the act can
be construed such as to outlaw inalienability due to the “personal character” of the rights.
There is no case law on the point. In this respect, French case law and doctrine should be
used to determine the extent and the limits of this right.493
V. Duration of moral rights protection
The moral rights duration is the same as the economic rights duration (70 years) (art. 9 §2 al.
2). After the author’s death, the author’s rights are exercised by his/her heirs or the person so
designated in the author’s will (art. 9 §2 al. 2).
493 C. DOUTRELEPONT, Le droit moral de l’auteur et le droit communautaire, Bruylant, Bruxelles, 1997,
n° 472, p. 304.
97
VI. Practical effects of moral rights protection with respect to authors, on the
one hand, and with respect to performers
Art. 11 of the 1975 Act provides that no provision of the 1975 Act can infringe any provision of
the Copyright Act.
Summary
Legislation is not clearly dualistic or monistic. There is no moral right of disclosure. The right of
attribution is stated in simple terms and in similar way than other Member States. The exercise
of the right of respect is subject to prejudicial acts. There are no rights to retract nor access the
work. Inalienability is the rule but waivers are possible. As far as we know, there is no case law
on moral rights in Luxembourg.
98
Part IX. The Netherlands
I. Legal framework
II. Analysis of the different moral rights : characteristics
III. Restrictions on moral rights protection as regards certain work categories and certain
categories of rights holders
IV. Alienability and waiver of moral rights
V. Duration of moral rights protection
VI. Relationships between moral rights protection of authors and of performers
I. Legal framework
Copyright Act of September 23, 1912 (Auteurswet 'AW') as amended on July 3, 1989 (Stb.
282)494 and last amended September 1, 1996 and Neighbouring Rights Act of March 18, 1993
(Wet op de naburige rechten ‘WNR’), in force July 1, 1993. All copyright directives have been
implemented into Dutch law.
II. Analysis of the different moral rights
The moral rights are set forth in the Act in a formulation similar to art. 6 bis of the Berne
Convention. The dualistic approach prevails in the Netherlands, as the Act clearly distinguishes
between economic rights (art. 1) and moral rights (art. 25). Nevertheless, some authors believe
that both types of rights are closely connected.495 For Gerbrandy, the Act's list of moral rights
is not exhaustive, case law can provide for more rights.496 There is also a trend in Dutch legal
doctrine in favour of a practical and rational application of moral rights.497
1. The right of disclosure
The right of disclosure is not stated as a moral right of the author. This right is included in the
economic rights. The author has the right to make certain corrections to the work before its reedition,
in other words, the author of a book, for instance, can prevent an unchanged re-edition
of his book.498
494 July 3, 1989, J.O. 1989, p. 282.
495 See A. QUAEDVLIEG, 'Authenticity of authorship and works', in ALAI Study days 4-8 June 1996,
Copyright in Cyberspace, Amsterdam, p. 224, fn. 6.
496 A. J. VAN DER MAREL & J. SCHAAP, in C. VAN RIJ, 1995, p. 115.
497 A. QUAEDVLIEG, p. 223.
498 See also below, Right of modification/adaptation.
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2. The right of attribution
a. Legislation
The author has two types of rights. Firstly, he has the right to require to be mentioned as the
author or creator of the work. He can object to publication without mention of his name or
quality of author unless the objection is not reasonable (art. 25, 1. a). The author has the
burden of proof to show that the omission of his name is unfair.499 Secondly, the author has
the right to object to the publication of his work under another name than his own, as well as to
object to adaptations of the title of the work or of the designation of the author (art. 25, 1. b).500
Designation of an author includes pseudonyms. The illegality of false attributions as regards
works of art is regulated by Art. 326 bis of the Penal law.
There is a rebuttable presumption of attribution in favour of the person whose name is written
on or in the work or if there is no such designation, in favour of the person who makes it public
(art. 4). This presumption does not include mentions which do not concern the quality of being
the author. Thus the editor cannot be the author if his name is written on or in the work. The
editor or the publisher (if the editor is not mentioned) can nonetheless exercise the author’s
rights in case of an anonymous or pseudonymous work (art. 9). This implies that the author
can choose to publish under a pseudonym or remain anonymous. He can always reveal his
identity and exercise his rights himself.501
b. Case law
In addition to the moral rights basis, an author can also act on the general tort basis. This is
especially interesting for authors who are not protected in the Netherlands due to the treaty
ratification situation.502
The claim of a professor who had written two out of 11 chapters of a book to be named together
with the other authors, was dismissed.503 An author cannot intentionally choose a pseudonym
which is the same name as another author of books in the serious genre, to publish a book in a
light genre. This practice violates the reputation of the author.504 To publish the same article
without the author's permission in another journal, without mentioning his name, infringes his
right of attribution.505
3. The right of respect or right of integrity
a. Legislation
Again the formulation of the right of integrity is similar to the one found in art. 6 bis of Berne.
The ‘rule’ is stated in three different paragraphs (25 §1, b, c and d). The author has the right to
499 S. GERBRANDY, Auteursrecht in de steigers, p. 63.
500 A.J. VAN DER MAREL & J. SCHAAP, p. 116; H.COHEN JEROHAM, 'National report on moral right in
the Netherlands', ALAI 1993, p. 180 and H. COHEN JEROHAM, in NIMMER, NETH-45.
501 See below, inalienability.
502 H. COHEN JEROHAM, in NIMMER, NETH-46.
503 Pres. Dis. Court The Hague, Jan. 25, 1965, NJ 1965, 76.
504 Pres. Rb. Zutphen, Dec. 4, 1996, P.M. Legêne v. J.P. Geelen, IER, 1997, p. 69.
505 Kantonrechter te Haarlem, Aug. 13, 1997, Hendriks v. Media Plus, Informatierecht /AMI, 1998, p. 29.
100
object to changes to the essence of his work (art. 25 §1, b) (e.g. an architect cannot object to
every modification in his building). Yet he can object, only if his objection is reasonable (art. 25
§1 c). Generally “objections to corrections of mistakes or to replacement of outdated
information will fail because of their unreasonable character.”506 He can object to any
deformation, mutilation, impairment of the work to the extent it could prejudice his honour or
reputation (art. 25 §1 d). It has been held that impairment covers the publication of the work in
an environment of lesser standing, the impairment of the status of the work or the nonpublication
thereof.507 The criterion of reasonableness does not apply to art. 25 1 d), but only
the criterion of violation of honour or reputation. Courts can qualify the infringement under art.
25 §1 c or under 25 §1 d, in relation of the seriousness of the violation. Under art. 25 §1 d, the
author must prove that his reputation or honour is violated. Even if reasonableness is only
required in cases subject to art. 25 §1 c, the appreciation of the violation also seems to be
objective in case of a violation of art. 25 §1 d.
The Act also imposes a right of respect when users make a free use of works (such as the
reproduction by the written or audio-visual press, of works which subject is related to current
events, reproduction for teaching purposes, in publications, sound or visual recordings,
broadcasting programs and citations of literary, scientific and artistic works).
A legal person can invoke the moral rights set forth in art. 25.508 That person has an interest
that the character of her work be maintained.
506 A.J. VAN DER MAREL & J. SCHAAP, in C. VAN RIJ, p. 116.
507 Frenkel v. KRO, Hoge Raad, July 1, 1985, NJ, 1986, 692 (non-publication). See below, audiovisual
works for full discussion.
508 District Court Utrecht, Nov. 19, 1997, Lancôme et al. v. Kruidvat et al., IER, 1998, p. 126.
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b. Case law
Literary and dramatic works
An author has successfully objected to the reunion, in a single book compilation, of several
previously separately published stories, under a title not desired by the author.509 In the
Beckett case, it was held that, as neither the text nor the scenic indications of a play had been
modified, the work was respected, even if the male roles had been interpreted by women. For
the judge, the author had considered the human fate in general not the male destiny in
opposition to the female destiny.510 In a recent case, the Volkskrant had made a CD-Rom
and a web site with freelance journalists' articles without their consent. The fact that these
journalists had contracted in the 80's made it unforeseeable for them to imagine such an
exploitation. The publishing of their articles without their consent in such a form violated their
economic and moral rights.511 To add cartoons into a political program without the author's
consent is prejudicial to the author's reputation.512
Musical works
A lyricist was granted injunction against the addition, by a cabaret singer, who had interpreted
his songs, of ‘low brow humour’ passages at the end of the song which destroyed the whole
atmosphere of the song.513 A lyricist could also object to the combination of her songs in a
medley or to their partial performance.514 The disco and house versions of O’Fortuna from
Carl Orff’s Carmina Burana were considered as mutilations.515
Works of visual and plastic art
There are numerous cases in this area. When illustrations of a book are not in conformity with
the story (the author of the drawings made obvious mistakes in representing the traits of Santa
Claus and his assistant), the publication of the book could violate the reputation of the author of
the text and an injunction could be granted.516
In another case, a painter claimed that his painting was hung too high so that it violated his
integrity right. The owner had to hang it 90 cm above the ground only. This prevented people to
pass from one room to another. It seems here that the balance went too far towards the
interests of the author.517 The reproduction of a modified painting (cuts in forms of a cross)
and the modification of the work's title (Who's afraid of Red, Yellow and Blue, III into Who's
afraid of God) violates the painter’s right of integrity.518 To remove the code affixed by the
author on the perfumes boxes and add a white sticker upon it, is a violation of the reputation of
509 Beckman v. Rest Boek, District Court of Assen, Nov. 17, 1987, Informatierecht/AMI, 1988, p. 61.
510 Informatierecht/AMI, 1988, p. 83.
511 Arr. rb. Amsterdam, Sept. 24, 1997, Heg, Mulder & Stam v. De Volkskrant, Informatierecht/AMI, 1997,
p. 194.
512 Rb. Utrecht, Dec. 28, 1989, Informatierecht/AMI, 1991, p. 123.
513 Pres. Dis. Court Amsterdam, Dec. 21, 1978, Auteursrecht, 1979/2, 34. See also H. COHEN
JEROHAM, in NIMMER, NETH-48.
514 Dis. Court of Amsterdam, Dec. 21, 1978, Informatierecht/AMI, 1979, p. 32, Tekstpierement.
515 Dis. court of Amsterdam, Feb. 24, 1992, Informatierecht/AMI 1992, p. 112; cited by A. VAN DER
MAREL & J. SCHAAP.
516 Pres. Dis. Court, Utrecht, Nov. 27, 1975, NJ, 1976, 481.
517 Pres. Dis. Court Zwolle, Apr. 14, 1989, Informatierecht/AMI, 1989/4, 100.
518 Gerechtshof te Amsterdam, Aug. 6, 1998, Het Rooms-Katholiek Aartsbisdom Utrecht v. Stichting
Beeldrecht, Informatierecht/AMI, 1998, p. 136.
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the author under art. 25 § 1 d. Indeed these modifications break the link between the author
and his work and deteriorate the personal stamp of the author.519
In a case involving "street art", a municipality had, for reasons of efficiency, removed the traffic
arrows that the artist had drawn. The court ruled there was no violation or mutilation.520
Freelancers, who had designed Dutch banknotes, sued third parties who used the banknotes
for advertising purposes.521 The graphic artists did not win, as the public interest in ‘talking
money’ outweighed their interest to defend their moral right. An artist who had designed a
special multicolour light work for an arcade passage was granted damages and injunction
against the owner who had decorated the pillars with paintings and switched off the light work,
replacing it by continuous white light.522
Architectural works
Like in Germany, the functionality of the building generally outweighs the interest of the
architect on the preservation of integrity. In the Netherlands, the test is based on the
reasonableness of the objection while in Germany, courts proceed to a balance of both sides’
interests.
An architect could not object to the building of dormer windows in small houses which had to be
converted into family homes.523 In like manner, the addition of a new classroom to a school
building does not infringe the right of integrity.524 An architect cannot reasonably object to the
addition of two new rooms to the building he designed for the sole reason that he was not
chosen as the architect for this addition.525 An architect could not “in all reason” require the
restoration of the front of his building in its former shape, but the court ordered the defendant to
pay damages.526
In three cases, courts were favourable to architects. In a first case, an architect contested
important structural modifications to his work (drastic structural renovation of a multifunctional
cultural centre built in the sixties). The judge based his reasoning on art. 25 §1 c :
modifications can be forbidden only if they modify the essence and appearance of the building
when these changes are not necessary to the functionality demands of the building.527 In
another case, a tribunal ruled condemned a municipality which wanted to put an exterior blind
in front of the building. The municipality’s reason for the blind was that the black glass exterior
of the building made it impossible for employees to work when the sun was shining due to heat
519 District Court Utrecht, Nov. 19, 1997, Lancôme et al. v. Kruidvat et al., IER, 1998, p. 126.
520 Rb. Groningen, Apr. 7, 1989, NJ, 1990, 342. Court of Appeals Den Bosch, Dec. 17 1990, NJ 1991,
443.
521 Court of Appeals of Arhnem, March 2, 1993, OHRA v. Oxenaar and Kruit, Informatierecht/AMI 1993,
p. 90-93.
522 Pres. Van Arr.rb. Van Rotterdam, Sept. 10, 1998, P. Struyken v. Stichting Nederlands Architectuur
Instituut (NAI), Informatierecht/AMI, Dec. 1998, p. 178.
523 Pres. Dis. Court, Utrecht, Dakkapel, Oct. 18, 1977, Auteursrecht, 1979/1, 16, cited by H. COHEN
JEROHAM, ALAI 1993, p. 184.
524 Dis. Court Middelburg, Krabbendijke, Jan. 14, 1970, NJ 1970, 297.
525 Dis. Court Middelburg, Jan. 14, 1970, NJ., 1970, 297; Pres. Utrecht, 18 Oct. 1977, Auteursrecht,
1979/1, p. 16.
526 D. Court, Assen, Nov. 17, 1992, Informatierecht/AMI, 1993/10, 191. See also Beurspassage,
Amsterdam Court of Appeals, cited above.
527 Pres. Dis. Zwolle, Van Klingeren v. Dronten, March 2, 1988, Informatierecht/AMI, 1988/6, 128.
103
it created. The court granted the injunction because the blind was mutilating the building.528
However one could argue that the architect should have taken account of the light and the heat
that this light could cause to inhabitants before choosing the place of the building. The
architect's proposed solution, although more expensive than the municipality’s solution, was
preferred because it respected the moral right of the architect.529 This was a rare case where
the court did not use the ‘rule of reason’. In a third case, the modification of the colour of
panels placed next to the windows of a building was held to be a violation of the honour and
reputation of the architect. The court ordered that the original colour be maintained.530
An sculptor can prevent the owner of his work to transfer the work into another environment if
the sculpture was designed or commissioned for that precise setting.531 A sculptor convinced
the Court of Maastricht that the construction of a fountain next to his environmental sculpture
was an infringement of his integrity right.532 The court noted that an art work is also
determined by the author’s intent, e.g. an art work may take its meaning from the environment
or site in which it is placed. In an interesting case, the Hoge Raad had to balance the moral
rights of the author with moral rights of third parties. A sculptor had designed a monumental
neon sculpture to be installed on the roof top of an old people’s home. The text of the sculpture
was ‘the ninth of OMA’ (the acronym of the architect of the building). The irony was that ‘oma’
in Dutch also means ‘grandmother’. Consequently, a number of old people were offended by
the sculpture. The judge found the moral interests of the old people not to be offended
outweighed the moral interests of the sculptor.533
The use of a work of art for advertising purposes can be against the right of integrity.534
Restoration of works of art
A normal obligation of maintenance is disputed among commentators. The failure to maintain a
work in good condition can be actionable if it amounts to mutilation, distortion or other
derogatory act against the reputation or honour of the author.535 Modifications resulting from
bad restoration are actionable rather under art. 25 §1 d.
528 Pres. Leeuwarden, Bonnema v. Tietjerksteradeel, July 12, 1988, BIE 1990, blz. 54. For another
example where an architect won against the owner, see pres. Zwolle, March 2, 1988, KG 1988, 144,
Informatierecht/AMI 1988, 128.
529 S. GERBRANDY, p. 68.
530 Court of Appeals s’Hertogenbosch, Nov. 1997, Politie Regio Limburg Zuid, et al. v. Snelder, EIR,
1998, p. 13.
531 Court of Appeals s’Hertogenbosch, Dec. 17, 1990, NJ, 1991, 444, IER, 1991, blz. 63 : “The particular
circumstance that the artistic conceptions in the municipality circles had changed does not free the
municipality from its obligations.” (the contract obliged the municipality to maintain the intended location
and execution of a fountain); see also H. COHEN JEROHAM, ALAI 1993, p. 181 (a sculpture called ‘The
Hands’ was transferred in a place where people would not recognise it as hands but more as a spider).
532 Pres. Maastricht Dis. Court, March 11, 1992, Informatierecht/AMI 152.
533 P. B. HUGENHOLTZ, 'Dutch Copyright Law, 1990-1995', RIDA, 1996, n° 169, p. 184, fn. 50.
534 See e.g. Dis. Court Amsterdam, July 3, 1985, Boin/Jedezet, Informatierecht/AMI, 1986, p. 83. Comp.
With French case law which holds the same.
535 See e.g. Court of Appeal s’Hertogenbosch, Dec. 17, 1990, Lenartz v. Sittard, NJ 1991, 443; Court of
Appeals Amsterdam, June 16, 1977, Koetsier v. Schiphol, NJ 1977, NJ 1978, 218. In this case, the court
said that the concepts of mutilation, distortion or other act prejudicial to honour or reputation do not only
refer to acts directly intended to the said results.
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Destruction
For the majority of courts, the destruction of the work does not amount to a violation of the right
of integrity.536 In Miletic v. Amsterdam III, the Supreme court decided that the fact a
municipality does not take care of artistic works (works of art were lost by the action of a third
party), cannot be a violation under art. 25, implying that the mere destruction of a work does not
amount to mutilation.537 Other decisions confirm this trend.538 The Van Schijndel decision
exemplifies this trend. In this case, the court decided that an architect cannot claim that his
(international) reputation is violated by the destruction of his work. A Museum hall, which
became too small, had to be destroyed to be replaced by a bigger hall. For the court, the
destruction was then justified, it was not useless. After the destruction, the architect's reputation
will perpetuate in photographs, designs, documents and in the memory of the people who have
known the building.539
Contrary to this trend, the Court of s'Hertogensbosch ruled that art. 25 does not allow the
destruction of the work, so that destruction is absolutely forbidden.540 In another case, the
destruction of a part of a building has been considered to be contrary to the right of integrity.541
In again another more recent case, it was held that transforming a building does not amount to
destruction so that it can be a mutilation prejudicial to the architect's reputation.542 J. Kabel
believes that it can be argued from the Koetsier/Schiphol and Ulrich/De Haas decisions that a
general obligation to inform the author of the intention to remove the work, can be imposed to
the owner if he knows the identity and location of the author, if the work is unique and the
owner is aware of this uniqueness. The destruction of a wall painting required by the justified
modification of the building by the owner is possible because the owner's interest in the
modification of the building outweighs the painter's interests over the destruction of his painting.
Moreover, the painter can make a photograph of the painting to keep it for posterity.543
4. The rights of modification and adaptation
Adaptation and translation rights are included in the reproduction right.
The author can only make modifications that he could be entitled to make, in good faith, in
accordance with the rules of social conduct (art. 25 al. 4).544 This amounts to recognise a sort
of right to retract. When an author has alienated his work without conditions, he cannot modify
536 In this sense : see e.g. Amsterdam, June 16, 1977, NJ., 1978, 218; Den Bosch, Dec. 17, 1990, NJ.,
1991, 443, Informatierecht/AMI, 1992/2, 34 (destruction of a building which is not conform to the norms
required for his utilisation, is not detrimental to the author’s honour or reputation). Contra : Trib.
Amsterdam, Nov. 15, 1978, Auteursrecht, 1979/2, 32.
537 Hoge Raad, Nov. 16, 1984, NJ 1985, 270.
538 For references see B. HUGENHOLTZ, ‘Dutch Copyright law 1990-1995’, RIDA, n°169, 1996, p. 182,
fn. 48.
539 Dis. Court of Utrecht, June 3, 1998, Van Schijndel v. Municipality of Utrecht, Informatierecht/AMI,
1999, p. 39.
540 Gerbrandy thinks this decision is too absolute.
541 Court of Appeals Amsterdam, June 11, 1992, Staal/Beurspassage, IER 1992, p. 20.
542 Pres. Arr. rb. Leeuwarden, Nov. 29, 1994, Vegter v. Stichting Spaarbank der Coöperative Verenining
Friesland Bank, Informatierecht/AMI, 1996, p. 14.
543 Pres. Rb. Groningen, Oct. 22, 1993, van den Berg v. RU Groningen, Informatierecht/AMI, 1994, p.
102.
544 Pres. Dis. Court Assen, Nov. 17, 1987, Informatierecht/AMI 1988/3, 61.
105
it (e.g. when a painter has sold his painting, he cannot afterwards make some changes).
Indeed commentators think that this article does not apply for works of visual arts.545
Similarly, the author of a literary work, cannot modify it except in the case of re-edition, to
update the work. If the editor does not let the author change the work, the author can prevent
him from re-editing the work.546
5. The right to retract
See above, Right of modification.
Case law
A cartoonist of books for children thought one of his old works was outdated in view of his new
conceptions. The publisher nonetheless wished to publish it with the present date. The author
forbade with success the publication of the work without the original date of the creation of the
work.547
6. The right of access
The right of access does not exist.
7. Classification of authors rights in different categories - relationships between economic and
moral rights
As some authors believe that economic and moral of rights are closely connected, a majority of
authors recognise that moral rights can serve pecuniary interests.548
III. Restrictions on moral rights protection with respect to certain work
categories and certain categories of rights holders
1. Software
The principle is that the moral rights stay with the employee.
1.1. The right of disclosure
Works which have not been made public (or disclosed) are not part of the author’s bankruptcy
estate so that they cannot be attached. 549
545 J. KABEL, 'The application of copyright in the realm of visual arts’, (The Netherlands), in The moral
right of the Author, ALAI Congress of Antwerp 1993, p. 391.
546 VAN LINGEN, ‘Le droit d’auteur aux Pays-Bas’, in Le droit des affaires dans le marché commun, ed.
Jupiter, Mise à jour, 1980, n°33.3.
547 Pres. D. Court Amsterdam, Aug. 27, 1962 (3), Geesink v. Terra Nostra, NJ 1963, 419, Court of
Appeals of Amsterdam 1964, , NJ 453.
548 A. QUAEDVLIEG, p. 224.
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1.2. The right of integrity
There would not be a violation of the moral right of integrity of the user of a program would
adapt for his own use.550
2. Audio-visual works
2.1. The right of disclosure
The audio-visual work shall be deemed completed once it is ready for showing. It is up to the
producer to decide when it is ready, unless otherwise agreed (art. 45 c).
2.1. The right of attribution
A special provision details the right of attribution of audio-visual creators (art. 45e). In addition
to the rights stipulated in art. 25 §1, b, c and d, the author is entitled to have his name appear at
the usual place in question, together with his capacity or the nature of his contribution to the
work, to require that the part of the film of which he is the author, be shown and he can oppose
to indication of his name in the cinematographic work, unless such objection is unreasonable.
If an author refuses or cannot complete his contribution, the producer is entitled to use his
contribution to complete the audio-visual work. For this contribution, the author will be
considered the author of his unfinished contribution (art. 45 b).
2.3. The right of integrity
a. Legislation
Film makers can invoke art. 25. The author is presumed to have waived his right to object to
modifications (art. 25 §1 c) in favour of the producer (art. 45f), unless a written document
alleging the contrary has been agreed upon between the two. Consequently, all changes are
possible, apart ones which prejudice the author’s reputation or honour or which modify the title
of the work. The author can also exploit his contribution in another genre, in the respect of the
rules governing works of collaboration and if it is separable from the whole work (art. 45 g).
This use cannot be detrimental to the audio-visual work.
b. Case law
In a case of a transfer of the adaptation right from a novel to a movie, the author had
transferred the right to modify the novel and the right to combine it with other works. The movie
established a friendship (which was not present in the book) between the main character, a
Jewish girl, and two members of the National Social Youth movement. The author of the novel
was not granted injunctive relief. Indeed the Jewish girl did not lose her integrity and credibility
at no time in the movie and the author of the book herself declared she did not see her in the
movie as a traitor. The author of the novel was granted the right, however, to announce at the
549 H.D.J JONGEN, 'The Netherlands' in H.D.J. JONGEN - A.P. MEIJBOOM, Copyright software protection in
the European Community, Deventer-Boston, Kluwer, 1993, n° 1.7.3.
550 H.D.J JONGEN, 'The Netherlands' in H.D.J. JONGEN - A.P. MEIJBOOM, Copyright software protection in
the European Community, Deventer-Boston, Kluwer, 1993, n° 1.6.
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beginning of the movie that she considers the relationship of the girl to be conflicting with her
novel and not conforming to her ideas regarding the Second World War.551
In another case, the Dutch broadcaster KRO had agreed that Frenkel (director) would make a
documentary to be broadcast by KRO. There was a clause giving the right to KRO not to
broadcast the documentary. When Frenkel delivered the documentary, KRO refused to
broadcast it due to a change of the head of programmes. The Supreme Court accepted
Frenkel's claim and obliged KRO to broadcast the film. The basis was that the freedom of KRO
to broadcast or not cannot ignore the moral rights of the author.552
3. Works of collaboration and collective works
The legal person who publishes the work as if it were created by himself, without making
reference of the author, is also entitled to the moral rights, unless such communication is
proven unlawful (art. 8).553
551 Pres. Dis. Court Amsterdam, Feb. 28, 1985, Het Bittere Kruid, KG 1985, 81, AMR 1985, p. 7.
552 HR July 1, 1985, NJ 1986, 692.
553 See also below, alienability. Gerbrandy does not agree with this because of the highly personal
nature of moral rights.
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Joint works
a. Legislation
The copyright in a work, when it belongs jointly to different persons, may be enforced by one of
them, unless otherwise agreed (art. 26). Courts have admitted that there is a joint work even if
the several parts are separable.554
a. Case law
Two artists had designed several features of a stamp, one, the Queen and the other, the
lettering. The court considered that changes in the lettering alone could infringe the moral right
of both artists, as each had contributed to the same joint work.555
Collective works
If a work consists of separate works by two or more persons, the person under whose direction
the works as a while has been made shall be deemed the author of the whole work, without
prejudice to the copyright in each of the works separately (art. 5 §1).
4. Performers’ moral rights
Art. 5 of the Neighbouring Rights Act offers to performers the same moral rights as art. 25 does
for authors. The Act gives more room for contractual waivers.556
These rights are :
- the right to object to disclosure of his performance without mention of his name
- the right to object to disclosure of his performance under name other than his own
- the right to object to any modification of the performance, unless this modification is of such a
kind that the objection is not reasonable
- the right to object to any deformation, mutilation or other change to his performance that
would prejudice his reputation or honour.
IV. Alienability and waiver of moral rights
a. Legislation
The principle is that moral rights cannot be waived or transferred. The author can contractually
waive the right of attribution (the two rights, i.e. the positive right of attribution and the right to
object to false attribution) and the right to object to changes to the essence of the work. So can
be waived rights referred in art. 25 §1 a, b and c. Only the right set in 25 §1d is not waivable.
This is known as the ‘partial waiver’. The waiver can be implicit; indeed the author cannot
abuse of his right in a unreasonable manner. The waiver of the right of attribution is restricted
to the mention of he being the author. The "waiver rule" does not apply to the mention of
someone else as the author of the work and the modifications to the indication of his quality as
554 See H. COHEN JEROHAM, NETH-28.
555 Supreme Court, May 29 1987, Informatierecht/AMI, 1987/5, 105.
556 H. VAN DER SAAG & R. C. CRAMER, Intellectual Property Laws of Europe, 1995, p. 314.
109
an author.557 Therefore, the ghost-writer can always reveal his identity, even if this remains
rare in practice.558
As for modifications to the work, the author can waive them in advance and rather broadly, but
he can never waive the exercise of this right to oppose modifications which would prejudice his
honour or reputation. The agreement in which rights are waived is controlled by the law of
contracts.559 Notwithstanding the transfer of his copyright, the author retain the right to sue
infringers of the copyright (art. 27).
Performers can waive their rights of attribution and right to object to modifications of the
performance, but only in writing (art. 5 §3 Neighbouring Rights Act).
Collecting societies cannot own moral rights; however, the author can designate a collecting
society in his will and enable it to exercise his moral rights. An author can give a ‘power of
attorney’ to his employer in order for the employer to defend the author’s moral rights in
court.560
b. Case law
An author who has authorised the adaptation of his work, without having reserved his right to
object to the definitive form of the derivative work, cannot reasonably object to the exploitation
of the derivative work, arguing that it is mediocre.561
Status of the employed author
Art. 7 of the statute stipulates that the employer is the owner of author’s rights on the work,
unless otherwise agreed. However, it is not clear from the wording of art. 7 whether fictitious
authors such as employers and legal entities can claim protection of moral rights.562 Some
authors believe that due to the personal character of moral rights, they cannot belong to
another person than the author.563 Others believe the contrary and the majority of the case
law follows this trend.564 The Supreme Court has never been called to rule on this matter.
Art. 8 stipulates the same rule for ‘corporate copyright’. This means that the corporation is the
holder of the moral rights. Some authors have recognised that a legal entity can be insulted
like a physical person so that it could be possible for this legal person to exercise moral rights.
557 C. DOUTRELEPONT, p. 246.
558 D.W.F. VERKADE & J.H. SPOOR, Auteursrecht, Amsterdam, Kluwer-Deventer, 1st ed., 1985, p. 239.
559 VAN DER MAREL & SCHAAP, p. 118. Comp. With Belgium, waivers are not considered as
contracts.
560 QUAEDVLIEG, p. 228.
561 Pres. Rb. Amsterdam, April 25, 1985, Filmmusiek Het bittere Kruid, K.G., 1985, p. 46.
562 H. VAN DER SAAG & R. C. CRAMER, 1995, p. 314.
563 GERBRANDY, PFEFFER, Kort commentaar op de auteurswet, n° 48, p. 40; VAN LINGEN,
Auteursrecht in hoofdlijnen, 3d ed. Alphen aan den Rijn, Samson H.D. Tjeenk Wilink, 1990, p. 191.
564 H. COHEN JEROHAM, in NIMMER, §4, 1, b, ii; D.W.F. VERKADE & J.H. SPOOR, Auteursrecht,
Amsterdam, Kluwer-Deventer, 2d ed., n° 208, p. 306. See also C. DOUTRELEPONT, p. 247. See e.g.,
District Court of Amsterdam, Aug. 20, 1987, Zeinstra v. Van den, Informatierecht/AMI, 1988, p. 18 and
Court of Appeal s’Hertogenbosch, May 24, 1978, Van Gunsteren v. Lips, BIE, 1985/4, 96. Contra : Court
of Appeals of Amsterdam, Feb. 10, 1970, NJ, 1971, 130.
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This question is still being debated.565 For Quaedvlieg, the fact that employers and legal
entities in general can be entitled to moral rights is good but it cannot prevent the ‘real holders
of moral rights’ (the original authors) to exercise them. It would be better to grant a distinct
‘commercial moral right’ to producers.566An important rule which stems from these two articles
on inalienability is that the employer or the corporation cannot transfer the moral rights to third
parties.567 Up to now, Dutch employers have not exercised the right of integrity extensively.
They just enjoy the fact they hold the moral rights to prevent authors from exercising them.568
V. Duration of moral rights protection
a. Legislation
Moral rights expire with the author’s death unless he has designated someone in his will, who is
entitled to exercise them. In such a case, the designated heir can exercise the rights until the
copyright in the work expires. In sum, if the author did not mention a special person to exercise
the moral rights, his heirs are not entitled to such exercise. The right to make modifications of
the work can be exercised by the heir only if it is likely that the author would have approved the
amendments.569 However, if an economic right is infringed as well as a moral right in the same
time, heirs can act for the infringement of the economic right, thus protecting the moral right
indirectly and simultaneously. Heirs can also act on the basis of general tort law (art. 6:162 of
the Civil code). But this article of the Civil code is not a strong basis for heirs because they will
have to prove that the impairment or modifications constitute a tort vis-à-vis them.570
As to performers rights, they can be exercised by the person designated in the will for 50 years
after the end of the year in which the performance took place (art. 5 of the Neighbouring Rights
Act).
565 A. QUAEDVLIEG, p. 229.
566 A. QUAEDVLIEG; p. 229 and n. 32.
567 A. QUAEDVLIEG, p. 223.
568 Quaedvlieg states that to his knowledge, until 1996, there has not been any case as far as it concerns
employees.
569 VAN DER MAREL & SCHAAP, P. 119.
570 VAN DER MAREL & SCHAAP, p. 119.
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b. Case law
Carl Orff’s widow obtained an injunction against the disco-house hit made with Carmina Burana
songs, although there was no formal document transferring the exercise of the moral rights,
because the judge applied the choice-of-law rule of ‘locus regit actum’.571
VI. Practical effects of moral rights protection with respect to authors, on the
one hand, and with respect to performers
The Netherlands have signed the Rome Convention.
571 Pres. Dis. Ct Amsterdam, Feb. 24, 1992, Informatierecht/AMI 1992/6, 112. See also H. COHEN
JEROHAM, in NIMMER, NETH-52. See also above.
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Summary
Legislation is clearly dualistic in the Netherlands. There is no right of disclosure but there is an
equivalent economic right. The right of attribution is completed by a right to object to false
attributions. The right of respect allows the author to object in two situations : when it is
reasonable and when it violates the reputation or honour of the author. There is no right to
retract but the right of modification has the same effects in practice. There is no right to access
the work. No waivers nor transfers are permitted although waivers of rights of attribution and
integrity are technically possible (except a waiver of the right to object to modifications violating
honour or reputation).
Case law is rather extensive in the Netherlands. Examples from right of respect cases show
that potentially effects on the internal market could be possible (see in particular the Beckett
case compared with opposite decision in the same case in France). But again these effects are
only potential and not evidence exists. In the field of plastic and visual arts, courts are rather
protective of authors while in architectural cases, courts draw a balance between authors' and
owners' interests.
113
Part X. The Nordic Countries
I. Legal framework
II. Analysis of the different moral rights : characteristics
III. Restrictions on moral rights protection as regards certain work categories and certain
categories of rights holders
IV. Alienability and waiver of moral rights
V. Duration of moral rights protection
I. Legal framework
The protection of author’s moral prerogatives as provided in the Article 3 of Nordic copyright
statutes, is similar in all the Nordic countries. All Directives have been implemented in the three
countries.
II. Analysis of the different moral rights : characteristics
Moral rights are dualistic in Denmark, Sweden and Finland.
1. The right of disclosure
In the Nordic countries, the right of disclosure does not exist as an independent legal concept
but is included in the author's exclusive right to make the work available to the public. This right
is regarded as one of the author's economic rights and it covers basically the same
prerogatives as the German Veröffentlichungsrecht.572 The legal nature of the right of the
author to decide how the work is disclosed to the public was discussed during the preparation
of the current Nordic laws. 573
The Swedish Copyright Committee has explicitly stated that it is not necessary to institute a
special moral right for the author to decide over making the work available to the public, since
this prerogative is already contained in the broadly defined author's exclusive right to control
572 Cf. STRÖMHOLM (1966), pp. 15 ff. Ulmer also emphasizes the two sides of the
Veröffentlichungsrecht. The author's right to control the first publication of the work by putting copies of it
into circulation (Verbreitungrecht) and author's right to control the public performance of the work
(Aufführungsrecht) form the economical side of the Veröffentlichungsrecht whereas the author's right to
decide when the work is ready and in which form it is to be communicated to the public constitutes the
personal side of the protection.
573 M.SALOKANNEL, Ownership of Rights in Audiovisual Works, Kluwer Law International, 1997, pp.
273 ff.
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the exploitation of the work (förfoganderätt).574 According to the Committee, the work may not
be made available to the public in any form without the author's consent. This right is based on
the author's right to make the work available to the public by any means. The author may
always refuse to communicate the work to the public for reasons having no economic
bearing.575
The prevalent Nordic doctrine seems to agree that the author's exclusive right to make the work
available to the public as stated in art. 2 of the Nordic copyright laws includes both economic
and moral elements. The same is equally true for France and Germany, even though the right
itself is classified as belonging to the moral rights of the author. The legal qualification of the
right is important to the extent that only moral rights are inalienable576 and other rights may be
assigned contractually. But from the very nature of the right of disclosure, it seems to follow that
it may not be exercised by anyone else besides the author577 or after the author's death, by
her legal heirs.
2. The right of attribution
According to the Article 3 Paragraph 1 of the Nordic Copyright Acts
“When copies of a work are made or when the work is made available
to the public in its entirety or in part, the name of the author shall be
stated in the manner required by proper usage”.
According to the Nordic author's rights laws, the name of the author must be mentioned, both in
the copies of the work and when the work is made available to the public, in accordance with
the requirements of proper practice.578 In practice, this means that in areas where mentioning
the name of all the involved authors is not a common professional practice, for example in
many commercials or in the software industry, the law does not require the mentioning of the
name of all authors. This does not of course mean that if the practice in a certain area neglects
the mentioning of the names of the creative and performing persons, that this could be done
merely by claiming that it is the common practice.579 A good example of this is the decision of
the Swedish Supreme Court obligating the Swedish Broadcasting Company (Sveriges
Television) to transmit a cultural television program with the name of the composers whose
music was performed in the program.580
3. The right of respect
574 According to art. 2(1) of the Swedish Copyright Act "copyright shall include, with the limitations stated
hereinafter, the exclusive right to control a work (uteslutande rätt att förfoga över verket) by producing
copies thereof and by making it available to the public, be it in the original or a changed form, in translation
or adaptation, in another literary or artistic form, or by other technical means.
575 SOU 1956:25, pp. 98 and 129.
576 For the inalienability of moral rights, see M. SALOKANNEL, 1997 pp. 283 ff.
577 M. KOKTVEDGAARD & M. LEVIN, (1996), p. 111.
578 Art. 3 of the Nordic copyright laws.
579 Ibid., pp. 127 ff.
580 Sveriges Television Aktiebolag v Torgny Björk, Supreme Court (Högsta Domstolen), June 1996.
115
According to the Article 3 Paragraph 2 of the Nordic copyright laws :
"[t]he work must not be altered nor made available to the public in a manner or in
a context which is prejudicial to the author's literary or artistic reputation, or to his
individuality."
See also below, right of modification and adaptation.
4. The right of modification and adaptation
Other rights closely related to the protection of the integrity of protected works are the right of
modification and the right of adaptation. Following the Article 6 bis of the Berne Convention, the
author's right to safeguard the integrity of her work covers the author's exclusive right to permit
or prohibit any adaptation or other modification of the work (art. 12) as well as the author's right,
by virtue of the author's moral rights, to oppose any alteration of the work which would
undermine the author's personality (art. 6bis). An independent right of adaptation as stated in
art. 12 of the Convention has not so far existed in the Nordic laws. The author's exclusive right
of disposal over a work by producing copies thereof and by making it available to the public,
whether in the original or in an amended form, in translation, adaptation into another literary or
artistic form or into another technique581 has so far been deemed to be sufficient to guarantee
authors' right to control adaptations of their works.582
In the Nordic countries author's rights laws, there is an additional safeguard for reinforcing the
author's position with regard to preserving the integrity of the work when assigning the rights.
581 Art. 2(1) of the Nordic laws.
582 In connection with the revision of the Danish copyright legislation, the authors' need for an
independent right to control adaptation or any other modification of their works was raised. It was noted
that the current regulation covered only modifications of the work which took place in connection with
either making copies of it or making the work otherwise available to the public. According to the
Government's draft proposal, this would not cover alteration of the work in circumstances when it was not
subject to reproduction or dissemination to the public. This is susceptible to occur, for example, in
connection with the adaptations of computer programs. This is why it was proposed that an independent
right of adaptation be included among author's other exclusive rights (proposed ' 2(5)). However, the
proposal of the Committee was not included in the final Government proposal. Cf. Forelobigt
departementalt udkast til lov om ophavsret, 20.5.1992, p. 55.
116
In the part of the law regulating the assignment of rights it is stated that :
"[i]n the absence of an agreement to the contrary, the person to whom a copyright has been
transferred may not change the work or transfer the work to others".583
In the Danish law it is provided that :
"[a]ssignment of copyright does not give the assignee any right to alter the work unless the
alteration is usual or obviously presumed".584
In other words, alteration of a work without author’s consent is not in principle allowed unless
the assignment itself presupposes or implies a certain alteration of a work.
4. The right of retract
There is no specific provision in the Nordic laws on the author’s possibility to pull back an
already published work from the market. Under certain conditions this may, however, be
possible according to the general principles of civil law.585
5. The right of access
In 1995 right of access was introduced in the § 52a (446/1995) of the Finnish law.
The author of a work of fine art shall have the right to access the work he has transferred,
unless this causes unreasonable inconvenience to the owner or holder of the work, and
provided this is necessary:
(1) for the author's artistic activity;
or
(2) for the purpose of effectuation of his economic rights, as defined in Article 2.
Whatever is provided in Article 41 shall be applied to the right referred to above in the first
paragraph, second subparagraph.
So far there exists no case law on the application of this article.
The right of access does not exist in the Swedish or Danish copyright legislation.
583 Art. 28 of the Finnish and Swedish laws and art. 39 b(1) of the Norwegian law.
584 Art. 56(1) of the Danish law no. 395/1995.
585 Haarmann, Pirkko-Liisa, Tekijänoikeus ja lähioikeudet, Kauppakaari, 1999, p. 112.
117
III. Restrictions on moral rights protection as regards certain work categories
and certain categories of rights holders
1. Audio-visual works
There are no particularities in this sector. General rules apply.
2. Software
There are no particularities in this sector. General rules apply.
3. Performers moral rights
In principle the same protection applies both to authors and performers. There is however a
difference between the Nordic countries in this respect because Denmark and Sweden confer
the performing artists the same level of protection as for the authors whereas Finland (and to a
certain extent Norway) only provide performers the minimum level of protection as harmonised
within the European Union.
IV. Alienability and waiver of moral rights
The general rule under Nordic copyright laws is that moral rights are inalienable. However, the
demands of particularities of different exploitation modes have been accommodated in the law
by allowing a partial specific waiver of the exercise of moral rights. According to art. 3 §3 of the
Nordic Copyright Acts :
"The author may waive his rights under this Article with binding effect only in relation to
use that is limited in character and extent".
V. Duration of moral rights protection
The duration of moral rights protection under Nordic copyright laws follows the general
protection of author’s economic rights, i.e. 70 years from the death of the author.
However, in addition to the above mentioned provisions relating to the protection of moral rights
under Nordic laws, which will extinguish at the same time the work falls into public domain,
there is a specific for protection of public domain works called the protection of classics. It
confers special powers to the government, usually the Ministry of Culture, to safeguard the
cultural interests related to public domain works against abusive or depreciatory uses.
For example, in Finland the article 53 of the law provides586
586 Art. 51 in Sweden and 75 in Denmark.
118
“If, after the death of the author, a literary or artistic work is the subject of public
action in a manner which violates cultural interests, the authority designated by
decree shall have the right to prohibit such action, notwithstanding the fact that
the copyright is no longer in force, or that copyright may not even have existed.
The person who is the object of such measures may, if he opposes them, have
the question submitted to the decision of a court of justice.”
This provision gives the Government the possibility to intervene if it sees that some
fundamental cultural values are threatened by a certain use or adaptation of a public domain
work. In practice the significance of this provision is small in all the Nordic countries.
119
Summary
Legislation is dualistic. The right of disclosure does not exist but can be said to be included in
the author's exclusive right to make the work available to the public. The name of the author
must be mentioned according to the usual practice in the sector. The author has the right to
object to detrimental treatment of his work. There is no right of retract. The right of access
exists in Finland but not in Denmark nor Sweden. Transfers are not allowed but specific and
limited waivers are nonetheless possible.
There is not much case law in the Nordic countries. It seems that facts situations in these
cases have not had an impact on the internal market.
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Part XI. Portugal
I. Legal framework
II. Analysis of the different moral rights : characteristics
III. Restrictions on moral rights protection as regards certain work categories and certain
categories of rights holders
IV. Alienability and waiver of moral rights
V. Duration of moral rights protection
VI. Relationships between moral rights protection of authors and of performers
I. Legal framework
Copyright and Neighbouring Rights Code (Codigo do direito de Autor e dos direitos conexos)
March 14, 1985 (DL n°63/85) as amended, September 17, 1985, n°45/85 and September 3,
1991, n°114/91. Portugal has also implemented the software directive in a separate Act n°
252/94 of Oct. 20, 1994. All directives are implemented except the Database directive, but its
implementation is imminent, as it is discussed in Parliament at present.587
II. Analysis of the different moral rights : characteristics
Art. 9 and 56 state that moral rights are recognised and in particular the right of attribution and
of integrity.
1. The right of disclosure
The right of disclosure is the right not to publish the work. Portuguese law does not provide
directly for a specific moral right of disclosure.588
2. The right of attribution
Portuguese law recognises different aspects of the right of attribution. First, the author has the
right to be named and recognised as the author (art. 27 and 56). This right is reinforced by art.
97 for the publishing contract, art. 115 §4 for the contract of scenic representation, art. 121 §2
i), art. 122, art. 134 for the authors of a movie, art. 142 for the fixation of phonograms and
videograms, art. 154 for the broadcasting contract, art. 160 for contracts in the plastic arts
587 Rental and term directives have been implemented by Decree-Law n° 332/97 (implementation of the
Directive n° 92/100/CEE) and Decree-Law n° 334/97 (implementation of the Directive n° 93/98/CEE).
588 A. DIETZ, ‘Portugal/I’, in Quellen des Urheberechts, p. 14.
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sector, art. 161 for plans and works of architecture, art. 167 §1 and 168 §2 for photographs and
finally art. 171 for translations.589
Art. 27 § 2 sets forth a presumption in favour of the person whose name is indicated as such in
the work or the person who is mentioned as such during the use or communication to the public
of the work.590 Conversely, there is a presumption that the right does not belong to the author
if his name is not mentioned on the work or cannot be seen on the universally and usually
accepted place where his/her name should appear (art. 14 §3).
Second, the right to disclose the work anonymously is also protected (art. 30).
In addition, two special rules need to be mentioned. The first provides that the author of an
architectural work can demand that his name be omitted if the owner has modified the building.
The second rule stipulates that the use of a similar name or sign which could lead to confusion
with that of another author is prohibited (art. 29 § 3). This means that someone cannot
necessarily use his/her patronymic as a ‘literary name’. Indeed there cannot be any confusion
between the name used and the name previously used by another author.591 In such cases,
there is a special procedure enabling an author to obtain the immediate cancellation of the
illegal use of his name and to claim compensation for any damages caused.592
3. The right of integrity
The right of integrity is the right to object to the modification of the work if detrimental to the
author’s reputation or honour (art. 9 §3). The right is completed by certain other specific rules
pertaining to the state of completion of the work and to certain types of works. The right of
respect is very strong in Portuguese law because modifications without the author’s consent
are prohibited even if the use of the work is legal (art. 59 §1). Only parody is allowed (art. 39).
If a work is incomplete, someone else can complete it if that person has a written document
from the author which authorises him to do so. The editor of dictionaries, encyclopaedia and
didactic works can complete these works if he indicates that they are being completed or
modified (art. 96 §3).593
In addition to the right to object to modifications, the author has the right, since 1991, to object
to the destruction of his work (art. 56). J. Ascencao believes that this right only exists for works
which have a strong artistic character. The right to object to the destruction of the work does not
exist in relation to architectural works (art. 60).
Rules relating to certain types of works
Functional works and adverts
589 Penalties are provided for the violation of these rights (art. 205 §2). See also art. 198 and right of
integrity.
590 C. DOUTRELEPONT, p. 223; similar to art. 15 §7 of Berne.
591 C. DOUTRELEPONT, p. 211.
592 M. DE NORONHA E ANDRADE & F. MANUEL ANDRADE BALTAZAR, Intellectual Property Laws of
Europe, 1995, p. 357. See also C. DOUTRELEPONT, p. 211.
593 C. DOUTRELEPONT, p. 306.
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For functional works and commercials, the right of integrity is reduced, in the sense that
modifications are allowed if necessary to exploit the work, unless they are detrimental to the
author’s reputation or honour.
Architectural works
As regards architectural works, the author has a right of control and a special right to prevent
modifications (art. 60). This means that the owner of a building cannot modify it without the
author’s consent (be it during of after the construction of the building) (art. 60 §2). This rule also
applies to works of plastic art which are incorporated in the architectural work (art. 60 §1).
Some commentators argue that the architect cannot object to the modifications but can obtain
damages if he was not informed before the modifications took place.594
If there is no agreement between the owner and the architect, the architect can remove his
name from the work and the owner cannot, in the future, mention the name of the initial
architect (art. 60 §3). In addition, if the owner wishes to make modifications that the architect
does not want to carry out himself, the owner must ask for the architect's consent and then he
can decide to have the building modified by another architect.
a. Case law
As far as we have been researching, we only have found one case in Portugal, dealing with the
integrity right of a singer.595 The singer has transferred his economic rights in all his albums.
He conceived each of his albums on a certain theme. The transferee had some of his songs put
into a medley together with other artists' songs. The author claimed that this practice would
violate his right of respect as the songs were taken out of their original environment, i.e. the
themes. The court granted him the action.
594 J. ASCENSAO, Direito de autor e direitos conexos, Coimbra, Editora Limitada, 1992; contra L. F.
REBELLO.
595 C. Fausto Bordalo Gomes Dias c. Moviplay Portuguesa, S.A., 14a Vara Civel da comarca de Lisboa,
1a secçao, Palacio da Justiça, Oct. 12, 1999.
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4. The right of modification
In Portugal, the right of modification is a moral right.596 The right to modify is provided for
publishing contracts (art. 93), contracts of scenic representation (art. 115 §3)597, contracts of
exploitation of a movie (art. 129 §1), phonographs and videograms (art. 146). The author can
introduce modifications which he deems necessary “provided they do not prejudice the general
structure of the work, do not reduce their dramatic or spectacular interest, and do not prejudice
the rehearsals and representation scheduling” (art. 113 relating to contracts of representation).
As regards literary works, the author has a right of correction which must be exercised within 60
days after the author has received the proofs. The editor must support the cost of such
typographical modifications (art. 94 § 4).598 It is to be noted that modifications which are
positive and enhance the work are not automatically authorised. For instance, teaching books
can be modified in relation to their aim, if the author does not object to it.
5. The right to retract
The ‘direito de retirada’, the right to withdraw works from circulation, can only be exercised if
the author has valid moral reasons (art. 62). The author must indemnify his contracting party
for the damage. The author has a special right of retract in case of scenic representation if a
part of the work is suppressed so that the meaning of the work is compromised or
misrepresented (art. 114). Like in Italy, in case of re-exploitation, the author is not obliged to
offer the rights preferentially to his former contracting party.599
6. The right of access
A right to access the work does not exist.
7. Classification of authors' rights in different categories - relationships between economic and
moral rights
7.1. Rights of adaptation and of integrity
The author who allows the adaptation of his work, cannot object to necessary modifications.600
III. Restrictions on moral rights protection with respect to certain categories of
works and certain categories of right holders
596 M. DE NORONHA E ANDRADE & F. MANUEL ANDRADE BALTAZAR, 1995, p. 357. Formula similar
to art. 6 bis Berne.
597 The contracting party, who agreed to represent the work, cannot modify it.
598 C. DOUTRELEPONT, p. 264.
599 This obligation to offer re-exploitation in priority exists in Spain, France, Greece and Germany.
600 J. ASCENSAO, Direito de autor e direitos conexos, Coimbra, Editora Limitada, 1992, p. 183, n° 121.
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1. Software
The employer is presumed to be the owner of the rights relating to the program. This
presumption is very vague. Case law will have to clarify whether moral rights belong to the
employer or remain to the employed author. J. A. Veloso notes with Ascensao that “legal
opinion has so far denied the possibility of moral rights over computer programs.”601
Moreover, the general rule stipulating that the employer can only modify a commissioned work
with the author’s consent is not applicable to software.602
2. Audio-visual works
Audio-visual works are works of collaboration. Co-authors are : the director, the authors of the
script and dialogues, the author of the music and the author of the adaptation of a pre-existing
work (art. 22).
2.1. The right of disclosure
The audio-visual work is deemed to be completed when the definitive version is agreed upon
between the author and the producer in common.
2.2. The right of integrity
The producer is obliged to preserve the master copy of the film, which he may not destroy (art.
130 and 137).603 The written consent of authors is needed to dub, translate or transform the
work (art. 129). The adaptation of any work, to make a fixation, transmit it, execute it or present
it by mechanical, phonographic, videographic means must be authorised by the author in a
written document, which must detail the aims of the transformation(s) (art. 146).
3. Collective works and works of collaboration
Works of collaboration or joint works
A joint work or work of collaboration is a work in which the individual contributions of the
authors cannot be separated (art. 16 §1 a). Any of the authors can require the disclosure,
publication or modification of the joint work. Each author can exercise his rights (relating to his
individual contribution) separately (art. 18). If a joint work is disclosed solely under the name of
one author, it shall be presumed that the authors not mentioned have assigned their rights to
the author in whose name the work has been disclosed or published, unless otherwise agreed
(art. 17 §3).
Collective works
A work is collective when it has been carried out by a single or collective entity and has been
disclosed or published in its name (art. 16 §1 b). The legal person is vested with the author's
rights (art. 19 §1). When it is possible to distinguish the individual contributions in the collective
work, the dispositions of art. 18 relating to collaboration works apply.
601 J.A. VELOSO, citing J. ASCENSAO, Direito Civil - Direito de autor e direitos conexos, Coimbra
Editora, Coimbra, 1992, pp. 228 ff.
602 L.F. REBELLO, ‘Copyright in Portugal’, RIDA, April 1996, p. 219.
603 L. F. REBELLO, ‘The New Portuguese Legislation on Copyright’, RIDA, 1986, n°129, p. 28.
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Composite works
A composite work (obra composita) is a work which incorporates totally or partially, but does
not transform, a work from another author, with this author’s consent. The rights pertaining to
a composite work shall belong exclusively to its author, without prejudice to the rights of the
author of the pre-existing work (art. 20).
4. Performers moral rights
Performers have a limited right of identification (which can be waived by agreement) and have
the right of integrity in their performances (art. 180). The right to be mentioned does not apply
in case of musical audio programs without any form of speech and in case customs enable
such identification to be omitted (art. 154).
IV. Alienability and waiver of moral rights
Moral rights of attribution and integrity are non transferable, imprescriptible and non waivable
(art. 56 §2). When the author is employed or creates a commissioned work (art. 13-15), the
moral rights remain his in principle.604 However, a waiver might be possible under art. 13 and
14 (i.e. in case of commissioned works and works financed by somebody other than the
author).
As regards the right of attribution, no one can use, for his/her own work, the name of another
author even with this latter author's consent (art. 29 §3). Thus ghost-writer’s conventions are
void under Portuguese law.605 There is no exception to this rule even in the case of a
collective work.606 Waivers of the right of integrity are possible only for particular types of
exploitation, but even with such a waiver, the author can at any time exercise his right if he
indemnifies his contracting party.607 As the law only provides for the inalienability of the rights
of respect and attribution, it is not clear if the author can waive his right of retract. Case law will
have to clarify this issue.
V. Duration of moral rights protection
Moral rights are perpetual. They are exercised by the author’s heirs for 70 years after his death.
If heirs do not exercise the right of integrity and the work is endangered by a violation, the
Minister of Culture can, when the work is still protected, exercise this right. When the works are
604 L. F. REBELLO, 1986, p. 19.
605 J. ASCENSAO, n° 68, 1.
606 J. ASCENSAO, n° 68, IV.
607 J. ASCENSAO, p. 194, II.
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in the public domain, rights are exercised by the Minister of Culture. Thus moral rights are
vested with the Portuguese state608 (art. 56 §2 and 57).
The duration of performers moral rights is not explicitly expressed in the Act but art. 183
provides that the protection lasts 50 years from the first day of the year following the event
which generated the protection.
VI. Practical effects of moral rights protection with respect to authors, on the
one hand, and with respect to performers
The grant of related rights shall in no way affect the protection of authors over the work used
(art. 177).
608 M. DE NORONHA E ANDRADE & F. MANUEL ANDRADE BALTAZAR, 1995, p. 357.
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Summary
Legislation seems dualistic but there is no clear indication in the Act. No right of disclosure is
directly recognised; the right of attribution is stated in simple terms with specific additional
rules. The right of respect can be exercised if violations are prejudicial and the Act stipulates
specific rules for certain types of works (authors of functional works and advertisements have a
reduced right of respect). The right of retract is allowed under strict conditions and no access
right is recognised. Inalienability and waivers are prohibited. Waivers can be allowed in certain
cases, there are terminable at will.
As far as we have been researching, we are only aware of one case in Portugal, dealing with
the integrity right of a singer. The fact that the "medley CD" could be exported and be admitted
in other countries because the protection of the right of respect is lower, could potentially have
an effect on the circulation of the work in the Community. It would be forbidden to sell it in
certain countries while allowed in others. However, again and as stated above concerning
other countries’ case law, this is only speculative and there is no evidence of any problems in
this respect.
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Part XII. Spain
I. Legal framework
II. Analysis of the different moral rights : characteristics
III. Restrictions on moral rights protection as regards certain work categories and certain
categories of rights holders
IV. Alienability and waiver of moral rights
V. Duration of moral rights protection
VI. Relationships between moral rights protection of authors and of performers
I. Legal framework
Intellectual Property Act 22/1987 of November 11, 1987, last amended on April 12, 1996, now
called Revised Act on Intellectual Property regularising, clarifying and harmonising the
applicable statutory provisions.609 The four directives are implemented. The Spanish Act
shows both the French and German influences.610
II. Analysis of the different moral rights
Art. 2 of the Spanish Copyright Act states that the intellectual property is formed by patrimonial
and personal rights. Art. 14 enumerates moral rights. Commentators diverge as to the
classification of authors right into the monist or dualistic theory.611 The Supreme court in its
June 3, 1991 ruling stated that copyright has unitary nature including both economic and moral
rights.612
1. The right of disclosure
The right of disclosure presents positive and negative aspects or prerogatives. It is defined as
the right for the author to decide if the work is published and in what form (art. 14 §1), and
particularly if it is to be published under the author’s name, pseudonym or anonymously (art. 14
609 It can be of interest to note that J. M. MOLINA points out that Spanish law is recent and adapts other
states legislation, could be an example to harmonise moral rights at the European level; see J. M.
MOLINA, in ALAI, 1993, p. 197.
610 F. POMBO, in C. VAN RIJ, Moral rights, reports presented at the meeting of the International
Association of the Entertainment lawyers MIDEM, 1995, p. 143.
611 F. POMBO, p. 143. J. M. Molina believes it is dualistic.
612 Supreme Court, June 3, 1991, Aranzadi 1991, 4407.
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§2). The author also has the negative right to decide not to publish.613 The right to publish
expires with the first disclosure. When a work is published under a pseudonym or
anonymously, the moral rights are exercised by the legal or natural person who published the
work with the author’s consent (art. 6.2).
As regards works of plastic arts, the owner of the original work can communicate the work to
the public if the author, in the alienation contract, did not state he did not wish it to be exhibited.
Indeed the alienation of the original by the author is an act of disclosure. Nevertheless, the
author keeps the right to object to the exhibition if his honour or reputation is violated (art. 56, n°
2 i, f) and he can be indemnified (art. 123 and 125).614 Uncompleted works cannot be
attached (art. 50 §1).
2. The right of attribution
a. Legislation
The right of attribution also presents positive and negative aspects : positively, it is the right to
claim recognition of authorship (art. 14 § 3 and 15 §1). The negative aspect of the right of
attribution is the right to object to any omission or false attribution (art. 534 bis b1, al. C Penal
Code and art. 64 §1 of Copyright Act).615 The false attribution must always take place with a
(literal or non-literal) infringement.616
There are also two other aspects of the right of attribution : moral and economic. The moral
aspect is materialised by the establishment of a link between the author’s person and his/her
work. On the economic side, the authorship claim can have an impact on the profit that author
will make.
The author can reveal his identity at any time (art. 27 §2). In publishing contracts, the editor is
obliged to write the name or identification of the author on the work (art. 64, 1°).617
613 S. MÜLLER, ‘SPANIEN,’ In MÖHRING, SCHULZE, ULMER, ZWEIGERT, (ed.) Quellen des
Urheberrechts, v. Spanien, March 1997, p. 20.
614 D. ESPIN CANOVAS, ‘Le droit moral de l’auteur d’oeuvres plastiques dans le système de droit civil’,
in ALAI Congress, The moral right of the author, 1993, p.368.
615 J. M. MOLINA, , ‘De l’évolution du droit moral de l’auteur dans la législation espagnole’, in ALAI
Congress, The moral right of the author, 1993, p. 195.
616 VEGA, Derecho de autor, Madrid, 1990, p. 217.
617 C. DOUTRELEPONT, p. 220.
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b. Case law
The ‘tribunal supremo’ (Spanish Supreme Court) has recognised the violation of the right of
attribution in two decisions618 (violation of art. 14 §3). In the case Herederos of Mr Jose v.
Maria del Valle, a project for a theatre had been created by several architects and an article
describing the project falsely attributed the project to only one of them. According to the court,
no damage was proven and thus that art. 125 did not apply. However, it can be argued that the
ruling of the Tribunal Supremo went against art. 125, under which a moral damage causes itself
a claim for damages even when there is no proof of an economic damage.619 It must be noted
that there is a controversy in Spain as to whether nominal damages are allowed.
3. The right of respect or right of integrity
a. Legislation
The right of respect is negative : it is a right to prevent. It is “the right to claim respect for the
integrity of the work and to prevent any distortion, modification, alteration or any act that may
prejudice the author’s legitimate interests or impair his reputation (art. 14 §4).”620 Alteration
covers any translation, adaptation and modification.621 Making cuts in a movie is under the
scope of art. 14 §4. For F. Pombo, this formulation signifies that the quality or artistic merit of a
work affects the right of integrity, as the right to object to modification will be recognised only if
the modification is detrimental to the author’s reputation or honour.
Some commentators argue that the right of respect is unconditional and does not suffer
exceptions. The author could then in theory object to a modification which would be an
amelioration.622 Despite these opinions, the right of respect is not absolute. There should be
possibilities to accept modifications if they are minor or at least non prejudicial to the author’s
honour or reputation. Such a consent can be drawn from the nature of the contract (contract
which transfers the right of adaptation for instance). Therefore, the contracting party who
acquired the right of adaptation will be able to modify the work as long as he does not change
the chronology of events of the novel, the characteristics of the characters, ... The Act
regulates this obligation more precisely in the editing contract and the contracts of theatrical
representation and of musical execution (art. 64 § 1 ad 78).623 These articles prevent the
contracting party from making cuts, additions or changes to the work. Art. 78 provides that the
technical conditions of the communication must not violate the integrity of the work.624
Destruction
The statute is silent as regards the destruction of the work. Some authors argue that if the
owner wants to destroy the work, he must let the author access the work in order for him to
618 Dec. 14 (Act. Civ. 1994 Bd.2, p. 1062-1063) and Dec. 29, 1993 (RAJ, 1993, 10161). See also a
comment by L. GIMENO, in EIPR 1996, D-24.
619 S. MÜLLER, in Quellen des Urheberrechts, 1997.
620 E. DIAZ-BASTIEN & P. PERNAN DOMECQ, Intellectual Property laws of Europe, G. MetaxasMaranghidis,
Stanbrook and Hooper, Brussels, John Wiley and sons, 1995, p. 374.
621 E. DIAZ-BASTIEN & P. PERNAN DOMECQ, 1995, p. 374.
622 F. BONDIA ROMAN, Propriedad intelectual, su significado en la sociedad de la informacion, Madrid
Trivium, 1988, p. 209.
623 See also art. 64 §2, 65 §3, 66, 78 §2 and 80 §1).
624 C. DOUTRELEPONT, p. 305.
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exercise his right of reproduction.625 As regards architectural works, administrative rules can
cause the modification of the building, as well its destruction in case of deterioration or non-use
due to its decay.626
Damages
The author has the right to obtain compensation for material and moral damages in case of
infringement (art. 123 and art. 125 § 2 particularly for moral rights). As stated above (while
discussing case law on the right of attribution), the moral damage is indemnified even if there is
no material damage. It is important to note that only the author is judge of the damage caused
by an alteration.
b. Case law
Paintings a painter had lent for an exhibit to a local authority, were returned to him in a
deteriorated state. The painter sued for violation of his right of integrity. The Supreme Court
decided that if there are no particularly high demands on the prejudiced interests, then no
detailed balance of interests must be undertaken.627 The artist was indemnified for the
damage due to the violation of his right of integrity.
4. The right of modification
The right of modification is positive : it is right for the author to modify his work. It is a moral
right. The author can modify his work but must respect the rights acquired by any third party
over the work, particularly when the work is being exploited (art. 14 § 5).628 During the
correction of proofs, the author can introduce indispensable corrections to his work, if they do
not alter the work’s nature or purpose and do not substantially increase the cost of publication
(art. 65 and 66).629 The contract can provide for a maximal percentage of corrections.630
The right of modification is subject to two limitations : the protection of cultural protected assets
and the right of exploitation (and thus modification) acquired by third parties (see also below, n°
7). First, the right to alter the work is subject to the ‘protection requirements of goods of cultural
interest’. Art. 36 §1 of the Act on the Historical Heritage of June 25, 1985631 obliges owners,
possessors and users of these works to maintain and protect works declared “works of cultural
interest” by the State. This law consequently makes it impossible to change the work.632
However, the work of a living author cannot be declared of cultural interest without the author’s
625 D. ESPIN CANOVAS, ‘Le droit moral de l’auteur d’oeuvres plastiques dans le système de droit civil’,
in ALAI, 1993, p. 319. It is interesting to note that a decision denied the right of integrity as regards the
destruction of the work, but this decision was prior to the enactment of the 1987 statute (See Spanish
Supreme Court, 21 June 1965, in ARANZADI, Repertorio de Jurisprudencia, 1965, n° 3670).
626 D. ESPIN CANOVAS, in ALAI, 1993, p. 371.
627 June 3, 1991, ADI, Bd. 14, (1991-1992), p. 494-498). See also comment by L. Gimeno in EIPR 1995,
D-286.
628 E. DIAZ-BASTIEN & P. PERNAN DOMECQ, Intellectual Property laws of Europe, 1995, p. 374.
629 F. POMBO, p. 147.
630 C. DOUTRELEPONT, p. 264.
631 Ley de Patrimonio historico Espanol, see A. DELGADO, ‘The New Spanish law on Intellectual
Property’, RIDA, 1988, p. 214.
632 S. MÜLLER, 1997, p. 22.
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express consent. Second, in case of contracts of exploitation, the author’s right of modification
is restricted (for instance in editing contracts).
5. The right to retract
This right is defined as the right to recall the work from the market place because of a change
of the author’s moral or intellectual convictions (art. 14). The exercise of this right is subject to
prior indemnification of the contracting party for the damage caused (direct damages and lost
profits). The right of withdrawal does not affect copies acquired by third parties but only the
relationships between the contracting party and the author. If the author decides to resume
exploitation of his work once again after having it withdrawn, he must preferentially offer this
opportunity to the previous holder and under comparable conditions to those previously
enjoyed.633
6. The right of access
The right of access is large : it is the right to have access to any rare or unique copy of the work
when it is possessed by a third party (art. 14 §7) in order for the author to exercise the right of
disclosure or any of his rights. The author must cause as little disturbance as possible to the
possessor and indemnify him for any damages (art. 17, 2°). The author is not allowed to
demand from the owner to move the work from one place to another (art. 14 § 7, 2°).634 The
balance of rights between the possessor and the author is not mandatory in Spanish law. This
right expires with the author’s death. It must be noted that it is illogical to give heirs the right of
disclosure, but to refuse to grant them the right to access a work which is not yet disclosed. 635
7. Classification of authors rights in different categories - relationships between economic and
moral rights
7.1. Rights of adaptation and of integrity
A right holder to whom the exploitation rights have been granted, has a legitimate interest to
transform the work in order to adapt it and exploit it in a reasonable manner. This interest must
be weighed against the author’s right of integrity.636 The necessity of the modification to
exploit the work must be considered. For instance, in publishing contracts, the right of
modification is reduced. Another example is the adaptation of a book into a movie : the author
cannot object to structural modifications involved in adapting the novel to a film. On the
contrary, as regards theatrical and musical performances, the grantee is forced to communicate
the work to the public without variations, additions, abridgements, cuts or suppressions to
which the author has not consented (art. 78 §2).
633 E. DIAZ-BASTIEN & P. PERNAN DOMECQ, 1995, p. 374.
634 E. DIAZ-BASTIEN & P. PERNAN DOMECQ, 1995, p. 374.
635 S. MÜLLER, p. 23.
636 F. POMBO, p. 145.
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III. Restrictions on moral rights protection introduced in certain Member States
with respect to certain work categories and certain categories of rights holders
1. Software
General provisions apply. Consequently, all moral rights granted in art. 14 belong to the author.
However, from a practical point of view, it is awkward to apply moral rights in the sector of
software. Art. 98 provides that the assignee of the exploitation rights may authorise, except for
the express prohibition by the author, the making of successive versions (releases) or
derivative programs. This would mean that the alteration of the integrity of the program is
limited with regard to whom it is applicable (only to the assignee of the exploitation rights or the
person by him so authorised) and as to the material (only for successive or derived
programs).637
The employer can be the owner of the moral rights if the work is collective. Art. 51 § 4 can
apply also (see above).
1.1. The right of integrity
The author cannot object (unless otherwise agreed) to the making by the contracting party of
further versions of the software (art. 98 & 100 § 4). In addition, the author cannot object to the
software adaptation by the user for his own use (art. 99 b).
2. Audio-visual works
Audio-visual and cinematographic works are works of collaboration (art. 7 and 87). The choice
of this classification holds several consequences. Firstly, co-authors of the audio-visual work
have the right to use their contribution separately, without time limits and with the condition that
this use does not prejudice the normal exploitation of the audio-visual work.638 Secondly,
authors of pre-existing works (used in the movie) can exploit their works in a graphic form or for
theatre representation (art. 89 § 1 and 88), but they cannot use their contribution for the
creation of other audio-visual works for 15 years after the realisation of the movie.
2.1. The right of disclosure
Co-authors of the movie (the director, the author of the script, the author of the plot and
adaptation, the author of the dialogues, as well as the authors of the especially composed
music, with or without texts (art. 87)) can exercise their moral rights only when the work is
completed (art. 93 §1). The work is deemed completed when it is in a state conform to the
terms of the contract between the director and the producer. The producer and the director can
decide to let co-authors appreciate whether the work is completed (art. 92 §1).639 When an
author, without justification, does not complete his contribution or cannot complete it because of
‘force majeure’, the producer can employ a third party to complete the movie (art. 91). If the
637 F. BONDIA ROMAN, Spain, in H.D.J JONGEN - A.P. MEIJBOOM, Copyright software protection in the
European Community, Deventer-Boston, Kluwer, 1993, n°1.6.
638 C. DOUTRELEPONT, p. 322-323.
639 C. DOUTRELEPONT, p. 205.
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author precludes disclosure without good reason, the producer can either disclose the work as
is or allow disclosure (art. 91).
2.2. The right of integrity
Any modification of the completed work requires the consent of the authors who have decided
its completion (art. 92 §2, al. 1). However art. 92 §2, al. 1 does not apply to contracts
concerning the production of audio-visual works which are to be mainly broadcast (art. 92 §2,
al. 2). For works made to be broadcast and unless otherwise agreed, “changes may be made
as are strictly dictated by the manner of programming the medium, without prejudice to the
author’s personal interest or reputation”.640 Art. 93 precludes the destruction of the definitive
version. All provisions which apply to audio-visual works apply in like manner to radio works
(art. 94).
3. Works of collaboration - Collective works - Composite works
Works of collaboration
To fall under the category of work of collaboration, the work must be made by several authors
and be an inseparable unit. The rights belong to the authors collectively. An agreement is
required to divide the several authors’ rights between themselves. The consent of each is
required for the disclosure and modification of the work.641 If a dispute arises, courts settle the
issue (art. 7 §2). Courts however cannot evaluate the moral rights but must take account of the
interests of the author who objects to disclosure or modification.642 Once the work has been
disclosed, none of the authors can reasonably withhold his consent to the exploitation of the
work in the form in which it was disclosed. "Subject to agreement among the authors, each
may separately exploit his contribution, unless this is harmful to exploitation of the work as a
whole" (art. 7 §3).643
Collective works
Certain conditions must be fulfilled : (1) creation under the initiative of a legal or natural person,
(2) publication under the name of that person, (3) the work is constituted of a bunch of different
contributions which create a unique work and (4) it is impossible to ascribe the author’s rights
on the whole work to a single author (art. 8). In this case, the authors' rights (including the
moral rights) belong to the natural person or legal entity who publishes the work under her
name (art. 8 al. 2), unless otherwise agreed.
Composite works
Certain conditions must also be fulfilled : (1) creation of a new work which incorporates a
previous work without modifying it, (2) with the consent of the previous author and (3) the latter
is not an author of the second work (art. 9 §1). The author of the previous work can exercise his
640 A & G BERCOVITZ, 'Spain', in M.B. NIMMER.- P.E. GELLER, International copyright law and practice,
New York, Matthew Bender, October 1996, p. SPA-51.
641 E. THOMSON, 'Spain', in S.M. STEWART, International copyright and neighbouring rights, Second
ed., 1989, Butterworths, p. 365.
642 A. DELGADO, The new Spanish law on Intellectual Property, RIDA, 1988, n°3, p. 210.
643 E. THOMSON, in S.M. STEWART, 1989, p. 365; A. DELGADO, ‘The new Spanish law on Intellectual
Property’, RIDA, 1988, n°3, p. 210.
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moral rights in the new work, if a part of his work in the new work is concerned. However, as
he has authorised the making of the new work, his right of disclosure will be exhausted.644
An independent work is deemed to be a work created separately from other works, though it
may be published together with them645 (art. 9 §2).
4. Performers moral rights
Performers have the right to be named in connection with their performances or interpretations
and they have the right to object to acts which prejudice their reputation or honour. These
rights lasts 20 years after the performer’s death and are exercised by heirs (art. 113).646
IV. Alienability and waiver of moral rights
The moral rights protect the personal and individual nature of creative works. They are
imprescriptible. They cannot be waived or transferred (art. 14 §1). This is the principle but it
remains to be seen how courts will interpret this principle. Some authors argue it is possible for
the author to be a ‘ghost-writer’, others (Bondia Roman) argue the contrary.647
Collecting societies cannot exercise moral rights.648
Employed authors
The employed author remains the owner of his moral rights but the economic rights are vested
in the employer ab initio so that the right of adaptation belongs to the employer. As regards
collective works, the employer is the holder of moral rights ab origine. In addition, under art. 51
§ 4, the author must suffer a looser application of the moral rights rules, as his rights can be
weakened in relation to the aim and object of the contract.649
V. Duration of moral rights protection
The duration of moral rights varies from right to right.
Moral rights of attribution and integrity last beyond the death of the author perpetually. Art. 41
confirms that these rights are perpetual : once the works fall into the public domain, they may
be used by anyone, provided that the rights of attribution and integrity are respected.650
644 S. MÜLLER, 1997, p. 11.
645 E. THOMSON, 'Spain', in S.M. STEWART, 1989, p. 365.
646 A & G. BERCOVITZ, in NIMMER, p. SPA-63.
647 C. DOUTRELEPONT, p. 242-243.
648 F. POMBO, p. 155.
649 C. DOUTRELEPONT, p. 198.
650 F. POMBO, p. 149.
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The right of disclosure extinguishes at the same time than patrimonial rights (art. 15). “The
exercise of the right of disclosure may also be limited by legal intervention against a decision by
the author’s heirs not to disclose the work when such a decision prevents the exercise of the
rights of citizens to have access to culture (art. 44 of the Spanish constitution). This provision
preserves against potential abuses of the right of disclosure by heirs. In other words, if the
author’s heirs exercise the publication right on terms which breach art. 44 of the Constitution,
courts can impose suitable measures in order to publish the work.651 Such an intervention
may be granted at the request of a public institution of a cultural nature or any other person who
has a legitimate interest (art. 40).”652 It is difficult to evaluate when the rights of citizens are
prejudiced in the case a work has never been disclosed to the public.653
The right to exercise the right not to publish a work lasts 60 years following the death of the
author.
The rights of retract and of access last until the author’s death.654 So do the right to modify
and rectify the work (art. 14 §5-7).
The persons named in the author’s will or if not, his heirs, are entitled to exercise his rights after
his death (art. 13 and 15 §2). If there are no heirs, the rights can be exercised by the public
administrations or cultural institutions (art. 16). This article creates the danger that the state
exercises a sort of ‘censorship’ in the name of the author’s personality.
It is interesting to note that the positive rights expire with the author’s death while the negative
ones can be exercised by the heirs.655
VI. Practical effects of moral rights protection with respect to authors, on the
one hand, and with respect to performers
Neighbouring rights must be understood as being without prejudice of authors’ rights (art. 131).
651 F. POMBO, p. 150.
652 A. DELGADO, RIDA, 1988, p. 216.
653 A. DELGADO, RIDA, 1988, p. 216.
654 This is the interpretation of BONDIA ROMAN, Propriedad intelectual, p. 214.
655 J.M. MOLINA, ALAI, 1993, p. 196.
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Summary
There is a controversy as to the dualistic or monistic nature of moral rights in Spain. The right of disclosure
comprises both positive and negative prerogatives. The right of attribution is stated in generally very
similar terms as stated in other European laws. The prejudice is needed to object to violation of the right
of respect. There are more detailed rules for specific sectors (music, theatre) as regards the right of
integrity. The author has a right to retract the work under certain conditions. The access right is rather
large. Transfer is not allowed under Spanish law and rights cannot absolutely not be waived.
From what we are aware of, case law is not abundant in Spain and it is thus very difficult to draw any
conclusions from the very little amount of cases we have at hand. Nothing on a potential impact on the
internal market can be said on their basis.
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Part XIII. United Kingdom
I. Legal framework
II. Analysis of the different moral rights : characteristics
III. Restrictions on moral rights protection as regards certain work categories and certain
categories of rights holders
IV. Alienability and waiver of moral rights
V. Duration of moral rights protection
VI. Impact of certain other areas of law on moral rights protection
I. Legal framework
Moral rights were introduced in British law only in 1988, with the Copyright, Designs and Patent
Act of November 15, 1988 (CDPA).656 Previously, no moral rights were recognised to the
author, only contract law or other types of protection were available to the author to defend his
personality. The British CDPA does not simply state the principles of art. 6 of the Berne
Convention but has enumerated a series of exceptions to the several moral rights. J. Phillips, R.
Durie and I. Karet note that until harmonisation takes place, moral rights will have little practical
impact in most areas of copyright law.657
The enactment of the 1988 Act has been followed by the implementation of the five Directives.
There have been several other ‘regulations’ on certain aspects of copyright law, such as the
Regulations n° 1006 of 1989 and n° 3297 and n° 2990 on Copyright Rights in Performances of
1995 and the Copyright (Computer Program) Regulation n° 3233 of 1992.
II. Analysis of the different moral rights
Characteristics of moral rights
The right of identification and of respect are only recognised to certain categories of authors :
authors of literary, dramatic, musical, architectural or artistic works and film directors (even if
they have transferred their copyright). Thus the right only belong to authors whose copyright
rests on creativity rather than investment. The right to object to any abusive attribution of the
work belongs to anyone; the right to privacy belongs to the person who commissioned the
work. So only the rights of attribution and integrity are ‘real author’s rights’. The rights of
attribution and privacy apply in relation to any substantial part of the work and in relation to the
whole work, while the integrity right and the right to prevent against false attribution apply in
656 included are the Copyright and Rights in Databases Regulations, 1997, into force 1st January 1998
and the Librarians and Archivists Regulations of June 13, 1989 and July 14, 1989.
657 J. PHILLIPS, R. DURIE, I. KARET, Whale on Copyright, 5th ed., Sweet and Maxwell, 1997.
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relation to the whole or any part of the work.658 The action against an infringement of moral
rights is a breach of statutory duty (art. 103). The author can ask for damages for non-economic
prejudice and ask for injunctions.
1. The right of disclosure
a. Legislation
The right of disclosure is not yet fully recognised in the British law but it can be said that the
disclosure right is contained in part in the economic right of publication. This economic right
applies to all works, including broadcasts and sound recordings in which right holders have no
moral rights. It is alienable like any economic right. It is limited to the first issue of the work (or
in other words, exhausted with the first publication), so that there is no “right of retract”.659
b. Case law
As long as the author retains his copyright on his work, he has the power on the decision to
publish or not. For instance, when an author has disclosed a manuscript confidentially to some
of his friends, there is no disclosure to the public so that it is an infringement of the right of
publication to publish it in full in a newspaper.660 Similarly, a newspaper infringes the right of
publication when it publishes the detailed plot of a comic opera before its first public
performance.661 In Prince Albert v. Strange, the court stated that the author has to right to
prevent others from publishing any of his unfinished works662. Even if the author has ceded his
copyright, he still has some power on publication. In another case, an author had transferred
his copyright for all songs he would write in the five years to come. The contracting party
published the songs. The terms of the contract did not allow the author to do anything.663
There is also a right to privacy (or of non-disclosure) for certain movies and photographs. This
right belongs to the person who commissioned the work and not to the person who is portrayed
or represented (art. 85).664
2. The right of attribution
a. Legislation
Principle
The CDPA establishes two rights under the category of the ‘right of attribution’ : the right to be
identified as the author or director and the right to object to any false attribution.
658 E.P. SKONE JAMES, SKONE JAMES on Copyright, London, Sweet and Maxwell, 1999, n° 11-05, p.
608 (emphasis added).
659 J. PHILLIPS, R. DURIE, I. KARET, 1997, p. 57.
660 Doyle v. Wright (1928-35) H.C.C. 243.
661 Gilbert v. Star Newspapers (1894) 11 T.L.R. 4.
662 (1849), 3 DeGex & Sm. 652, 64 E. R. 293.
663 Schroeder Music Publishing Co. v. Macaulay (1974) 3 All E. R. 616 (H.l); 1 W.L.R. 1308
664 See below, right to privacy.
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Firstly, the right of identification is formulated as “the right to be identified as the author of a
copyright literary, dramatic, musical or artistic (and architectural) work and the right to be
identified as the director of a copyrighted movie” (art. 77 (1) and (7)). This means that authors
of literary and dramatic works have the right to be mentioned when the following acts are
performed : publication, public performance, broadcasting (including by cable), sale of copies of
records and films. Directors have this right when the film is shown or broadcast and when
copies are sold.
“The right to be identified at public exhibitions goes further than the copyright right in artistic
works, which does not provide an exclusive right of public exhibition or performance.”665
Indeed there is no copyright in a public exhibition of a work of art or a copy of such a work. Yet
if the person who wishes to exhibit the work has notice that there is an assertion, he must
respect the right to be identified. An architect has the right “to require his name to be displayed
on a building in a manner appropriately visible to persons entering or approaching the
building.”666 He also has the right to be identified on models, drawings, photographs of the
building issued to the public. This right does not apply where the model or building is only
incidentally included, for instance as background in another work (such as an artistic work, a
movie or broadcast).667 In addition, the name of the author of an artistic work must be
mentioned on reproductions of the work (such as photographs or a graphic work representing
it).
Assertion
The right of identification must be expressly asserted in the contract of transfer of copyright or
any other document written and signed by the author (art. 78(1) and (2)). The latter method has
one major disadvantage for the author : “it is binding only on persons to whose notice the
assertion is brought”.668 This means that if no document is signed, the contracting party does
not violate the right of attribution if he does not mention the name of the author. The assertion
can be of a pseudonym. Assertion must take place as soon as possible as in an infringement
suit, the court will take account of the date of assertion to calculate damages. "Collective
bargaining by a trade union will not secure the general assertion of the attribution rights of all of
its members".669
Exceptions
There are numerous exceptions to the right of identification (art. 79). The right does not apply :
- to computer programs, typeface designs, computer-generated works;
- when the initial ownership vests in another person (e.g. the author’s employer) (art. 79 (3));
- in relation with an act which does not amount to an infringement of copyright by virtue of
various exceptions contained in art. 30, 31, 32 (3), 45, 46, 51, 52 and 57 (see art. 79 (4));
- if the work reports current events (art. 79 (5));
- if the work is to be published in a newspaper magazine or similar periodical, or an
encyclopaedia, dictionary, yearbook or other collective work or reference book when the work
665 J. PHILLIPS, R. DURIE, I. KARET, p. 59.
666 J. PHILLIPS, R. DURIE, I. KARET, p. 59. “When more than one building is constructed on the same
design, the right applies to the first building constructed.”
667 M. LUCKMAN, 'Moral rights in the United Kingdom, a short review and discussion of problems',
Copyright World, Issue Five, July 1989, p. 26.
668 E.P. SKONE JAMES, n° 11-21, p. 618.
669 M. LUCKMAN, p. 26.
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was either made or made available for the purposes of such publication by or with the consent
of the author (art. 79 (6));
- to works in which the Crown has copyright or to works which copyright belongs to international
organisations (art. 79 (7)).670
Industrial designs and anonymous works are also excluded from the benefit of the right of
attribution. Moreover the exceptions to copyright (i.e. ‘fair dealing’) apply to the right of
attribution.671
In addition to these exceptions, there is no right of attribution as regards public execution and
broadcasting of musical works and words accompanying them. In other words, the broadcaster
or the organiser of a public representation cannot be forced to cite the names of the authors of
such works (art. 77 (3)). Conversely, the right to object to false attribution exists in this precise
case. In practice, the right to have the name and title announced is commonly given to the
author in a contract and enforced by collecting societies.672 Composers have the right to be
identified on records, sheet music and films. When a work is adapted, the original author has
the right to be cited as such.
Second, the CDPA sets forth a right to object to any abusive attribution of a work, which can be
seen as the "converse right of the right of identification". Some argue that it is not a moral right
stricto sensu.673 It overlaps to some extent the action of passing off. The right to object to any
abusive attribution of a work consists of the right not to have a literary, dramatic, musical,
cinematographic or artistic work falsely attributed to a person as author and not to have a film
falsely attributed to a person as director (art. 84 (1)). The right covers the copies issued to the
public, public exhibition and reproduction of an artistic work, public performance, showing,
broadcast or cable-cast of a literary, dramatic or musical film (art. 84 (2)). This right does not
only belong to the author but also to any person whose name has been affixed on the work.674
When a person has also registered his/her name as a trademark, the false attribution may also
constitute trademark infringement.675 The right to object to false attribution extends to cases
in which a work is falsely represented as being an adaptation of a work of a person.676
A false attribution is also possible in presence of joint works. For instance, if one person only is
named as the author of a work of which two persons have collaborated, the person who is
named has the right to complain of false attribution, but not the unnamed person. This latter can
act on his attribution right.677
670 There is Crown Copyright when the work is done by Her Majesty or by an officer or servant of the
Crown.
671 J. TURTON & M. ALLEN, in C. VAN RIJ, ‘United Kingdom’, 1995, p. 160. For more details, see E.P.
SKONE JAMES, n° 11-33, p. 624.
672 J. PHILLIPS, R. DURIE, I. KARET, p. 59.
673 G. DWORKIN, ‘The moral right of the author, Moral rights and common law countries’, ALAI Antwerp
Congress, 1993, The Moral right of the author, p. 96.
674 C. DOUTRELEPONT, p. 211; G. DWORKIN, ALAI Congress, 1993, p. 97.
675 J. PHILLIPS, R. DURIE, I. KARET, p. 59.
676 E.P. SKONE JAMES, n° 11-61, p. 637.
677 E.P. SKONE JAMES, n° 11-64, p. 638.
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Finally, the act makes it a secondary wrong (requiring proof of knowledge or reason to believe
that there is false attribution) for anyone in possession or dealing with a falsely attributed copy
of the work in the course of business.678
b. Case law
There is sometimes overlap between the right to object to false attribution and the right to
object to derogatory treatment. For instance, “the singer Dorothy Squires, obtained damages
on account of a newspaper item allegedly by her, when she actually said only about 10 % of it
to the journalist concerned.”679 “Examples of false attribution include a newspaper article in the
first person attributing to a person words which that person did not in fact use, an article which
in addition to quoting the actual words of the plaintiff added to the quote a further 17 words
which were not his."680
3. The right of respect or right of integrity (right to object to derogatory treatment)
a. Legislation
Principle
The right is defined as the right to object to any modification of the work which can be
detrimental to the work or the right of the author of a literary dramatic, musical or artistic work
and a director of a film to object to derogatory treatment (art. 80). These two terms need to be
further explained. ‘Treatment’ means that there must always be a material modification of the
work, be it minor, for the right to be violated. Modifications are ‘any adjunction, suppression,
transformation or adaptation of the work’ (art. 80(2) (a)). Second, the treatment must be
derogatory. This includes distortion or mutilation of the work, or other acts prejudicial to the
author’s reputation or honour. Put differently, the distortion or mutilation must be prejudicial to
honour or reputation as well as any other derogatory act.681 The words ‘reputation and
honour’ are to be interpreted in the sense of the laws on defamation and passing off.682 In
contrast with the right of attribution, the right to object to derogatory treatment does not end to
be asserted before it can be claimed.
A derogatory use does not amount to a derogatory treatment.683 Colouring could amount to
treatment.684 Authors and directors can object to derogatory treatment occurring in copies
being published, copies of a sound recording being communicated to the public, performance,
678 W. R. CORNISH, Intellectual Property, London, Sweet and Maxwell, 1996, n° 11-83, p. 397.
679 W. R. CORNISH, n° 11-84, p. 397. Moore v. News of the world (1972), 1 Q.B. 441, and Noah v.
Shuba (1991) F.S.R. 14.
680 See Moore v. News of the World, ltd (1972) 1 Q.B. 441 and Noah v. Shuba (1991) F.S.R. 14, at 32.
For other examples, see E.P. SKONE JAMES, n° 11-60, p. 637.
681 E.P. SKONE JAMES, n° 11-43, p. 627. Contra, see M. LUCKMAN, p. 27 : prima facie, it would seem
that a distortion or mutilation is automatically prejudicial to the author.
682 E.P. SKONE JAMES, p. 628.
683 E.P. SKONE JAMES, n° 11-48, p. 631.
684 G. DWORKIN, ALAI, 1993, p. 100. However as the black and white films were made before the entry
into force of the 1988 Act, they could not be protected under the new law...
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playing and showing in public, broadcasting and cable-casting (art. 80 (3)-(6)) For artistic
works, the right covers public exhibition (art. 80 (4) (a)).
If the work is placed in another context or environment, the author cannot act on the right of
respect as formulated in the British Copyright Act.
Destruction
The legislation is silent on destruction and there is no case law on the point yet685, but it
seems that the author cannot prevent the destruction of the work.686 A destruction is a
treatment but not detrimental to the author’s honour or reputation. There might be "an
exception where a work such as painting is destroyed publicly as part of a statement about the
artist, or the act of destruction is filmed and later broadcast".687 A private act of destruction will
not be an infringement. Only an express contract could secure the right to prevent
destruction.688
There is no obligation on the owner to keep the work safe from degradation or destruction. In
the same way, if reparation or restoration of the work was carried out without the artist’s
consent, he cannot act on the basis of his right of integrity. It seems by the wording of the
statute (the word ‘prejudicial’) that the modification must be defamatory, so that the subjective
point of view of the author will not be taken into account but an objective test will be conducted
by the judge.689
“The court has discretion to enjoin acts unless a disclaimer dissociating the author or director
from the derogatory treatment is made in terms and a manner it approves” (art. 103 (2)).690
In summary, this right seems much less protective than art. 6 bis of the Berne Convention.
Sadly, the integration of moral rights into British law has changed little in practice, especially as
regards the damages for infringement of the right of integrity.691
Exceptions
There are exceptions to the right of respect (art. 81-83) : authors of computer programs,
computer-generated works, works reporting current events, works published in a magazine (art.
81), translations, musical arrangements limited to a change of tone or key (art. 80 (2) (a) (i) and
(ii)) do not enjoy a right of respect. There is no exception for typefaces. There is no exclusion
of protection for design rights, so that the right of integrity in a design can be infringed, while the
copyright in the same design is not.692 The fact that translations are excluded from the
treatment means that no matter how damaging the translation might be to the author, he will not
be able to sue the translator based on the right of integrity.693
The architect cannot object to any modification which could be detrimental to his work. He can
only ask that his name be removed from his work if it has been modified abusively (art. 80 (5)).
685 J.A.L. STERLING, World Copyright Law, Moral rights, n° 8.05, p. 283.
686 G. DWORKIN, ALAI 1993, p. 100.
687 E.P. SKONE JAMES, n° 11-47, p. 630.
688 W. R. CORNISH, in NIMMER, UK-53.
689 W. R. CORNISH, ‘Moral rights under the 1988 Act’, EIPR, 1989, p. 450. Contra, J. PHILLIPS, R.
DURIE, I. KARET, p. 61. For the authors, it is not sure if an objective or subjective test of the treatment
must be done.
690 W. R. CORNISH, in NIMMER, UK-55.
691 J. TURTON & M. ALLEN, ‘United Kingdom’, in C. VAN RIJ, p. 162.
692 J. PHILLIPS, R. DURIE, I. KARET, p. 61. For an extensive discussion, see M. LUCKMAN, p. 28-29.
693 E.P. SKONE JAMES, n° 11-40, p. 626.
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"This should satisfy the honour of the architect yet protect the substantial investment by the
builder". 694 Nevertheless, if there is a contract, the architect can demand that it be
respected.695
If the work is made for hire, or is subject to a Crown copyright, the author can only require a
sufficient disclaimer of association with the altered work (art. 82). The right may not be invoked
when the infringing act is made in order to avoid the commission of an offence or to comply with
a statutory duty. The right is not infringed if the treatment amounts to justified censorship by the
BBC. In these three cases, if the author is identified, there must be a sufficient disclaimer of
authorship.
Similarly to what the dispositions on the right of attribution state, the Act makes it a secondary
wrong to deal with or possess an infringing article in the course of his business (sale, hire,
exhibit, distribute or distribute otherwise than in the course of his business so as to affect the
reputation or honour), where the person knows or ought to know that the right of integrity is
being infringed.696
b. Case law
There is no derogatory treatment when the work is juxtaposed with offensive material, or when
a serious musical work is used for a trivial commercial advertisement, when the work is
performed in a derogatory way, while remaining totally faithful to the text of the work.697
The first reported case involving the integrity right is Morrison Leahy Music Ltd and Another v.
Lightbond Ltd and others698. This case was concerned with transitional provisions. In this
case, George Michael’s songs had been integrated in a medley together with “fill-in” music and
the lyrics of his songs had been changed. The publishing company argued they had the
copyright and that there was an adaptation of their works and G. Michael argued his moral right
of integrity had been violated. However, defendant won on the basis that they had obtained
clearance but that the clearance obtained was not a license.699
The first case on the interpretation of 'derogatory treatment' was judged last year.700 In this
case a leaflet on the Plymouth Dome had been reworked by the holder of exploitation rights
and according to plaintiff, it distorted his work. The judge decided that the plaintiff must
establish that the treatment is either a distortion or a mutilation which prejudices his honour or
reputation. "It is not sufficient that the author is himself aggrieved by what has occurred." He
concludes that the alterations were so slight that there was no derogatory treatment. The
reduction of the size of the drawing is not derogatory treatment. The change in the colours of
the drawing does not amount to derogatory treatment because it is due to the technicalities of
reproduction and do not violate the author's reputation or honour. In a sort of obiter dictum, the
694 M. LUCKMAN, p. 28.
695 G. DWORKIN, ALAI, 1993, pp. 100-101.
696 J. PHILLIPS, R. DURIE, I. KARET, p. 61. See also E.P. SKONE JAMES, n° 11-54, p. 633.
697 G. DWORKIN, ‘United Kingdom’, in S.M. STEWART, International copyright and neighbouring rights,
p. 513.
698 (1993) E.M.L.R. 144.
699 J. TURTON & M. ALLEN, p. 163.
700 Plymouth County Court, March 9 & 10, 1998, Pasterfield v. Denham and another, 1999 F.S.R. 168.
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judge also rules that the grant of the copyright to use the drawings does not imply a waiver of
the moral rights.
4. The right of modification/adaptation
See below n° 7, relation between the rights of adaptation and integrity.
5. The right to retract or right of withdrawal or right of reconsideration
6. The right of access
These two rights do not exist. A right of withdrawal could only be secured by contract.701
7. Classification of authors rights in different categories - relationships between economic and
moral rights
7.1. Rights of adaptation and integrity
The case Holland v. Vivian Van Damm Productions Ltd “illustrates the extent to which the
adaptation right is also a right against distortion.”702 Defendant’s ballet was found to infringe
Oscar Wilde’s story (The Nightingale and the Rose) because the ballet, while reproducing the
tale substantially, also departed from it in many respects. In this case, which was of a purely
economic nature, the moral rights were not discussed as they did not exist at that time but the
court ruled in a way as to safeguard Oscar Wilde’s reputation and name, because defendant
advertised her ballet as inspired by Wilde’s story. Although the court used the right of
adaptation in this particular case, it does not mean that the right of adaptation will always be
used and can be used in general to defend an author’s right of integrity.
III. Restrictions on moral rights protection introduced in certain Member States
with respect to certain work categories and certain categories of rights holders
1. Software
Rights of attribution and integrity do not apply in relation to computer programs and computergenerated
works (Art. 79 (2) and 81 (2)). For W. R. Cornish, there are no moral rights at all for
701 Old cases show that courts have been reluctant to recognise such a right of retract, see e.g. Southey
v. Sherwood (1817) 2 Mer. 435 (35 E.R. 1006); Chaplin v. Leslie Frewin (Publishers) Ltd. (1966) Ch. 71.
702 (Ch. 1936), MCGILLIVRAY, Copyright cases 1936-1945, 69 (1949). See P. GOLDSTEIN, ‘Adaptation
right s and moral rights in the United Kingdom, the United States and the Federal Republic of Germany,’
IIC, N°1/1983, p. 43.
146
computer programmers.703 For C. Millard, moral rights will not be available to ‘package’
programs or programs owned automatically by an employer but will be available if the program
is a commissioned work. A freelance technical author could object to modifications made to
the manuals.704 However, as programs are once for all excluded from the moral rights
protection, the rights should not be protected in any situation.705
703 W. R. CORNISH, n° 11-80 and 13-54.
704 C. J. MILLARD, 'United Kingdom' in H.D.J. JONGEN - A.P. MEIJBOOM, Copyright software protection in
the European Community, Deventer-Boston, Kluwer, 1993. Millard does not mention the status of moral
rights in the programs themselves in this latter situation.
705 C. DOUTRELEPONT, p. 333.
147
2. Audio-visual works
2.1. The right of attribution
Directors have the moral rights. But there is no definition of a director of a film. Thus it appears
that where there are directors of a film which do not fall within the description of principal
director, each will have moral rights provided that the film was jointly directed.706
2.2. The right of integrity
The BBC can alter a work to avoid any element which could be contrary to good taste or
decency or which may encourage disorders or hurt the public feeling (art. 81 (6) (c)). However,
in this case, if the author or director are known, mention must be made that they were not in
agreement with the alteration. In M. Flint’s opinion, it is generally the case in the United
Kingdom (and in the US) to grant “directors who have proven success at the box office and who
are effectively authors, contractual rights which are equivalent to the moral right of integrity.”707
Generally cuts made by the producer which the director refuses, are commercially good and
the film hits the box office as cut, while if cuts are not made, the opposite occurs...
3. Joint authorship
A work of joint authorship is defined as a work of collaboration of two or more authors whose
contributions are not distinct from each other (art. 10 (1)), for instance a broadcast (art. 10
(2)).708 “No special definition of “joint authorship” is applied to sound recordings, cable
programs, or published editions, nor to films as yet”.709 Every joint author has independent
moral rights and any assertion, waiver or consent can be done by each joint author for himself.
The publisher must be cautious, as in theory, under copyright rules, he can only identify the
sole author who has made an assertion but, it will be considered as an act of passing off and of
false attribution if he does so. In sum, he will have to name all authors.710
4. Performers' moral rights
Performers have no moral rights. The entry into force of the WPPT will force Great Britain to
adopt rights of integrity and attribution for performers of literary and artistic works, as well as for
performers of works of folklore. Indeed a consultation paper was issued fro reactions of
interested parties in January 1999.
5. Theatre
706 E.P. SKONE JAMES, n° 11-05, p. 608, 1999.
707 M. F. FLINT, ‘Moral rights in theatre and some comments on moral rights and audio-visual works’,
ALAI Congress, the Moral right of the author, 1993, p. 472.
708 Thus there are separate copyrights for : the words and music of an opera or song; for the script, the
decor and the incidental music of a play; for an original text and its translation. See W.R. CORNISH, in
NIMMER, UK-33.
709 W.R. CORNISH, in NIMMER, UK-33.
710 E.P. SKONE JAMES, n° 11-26, p. 621.
148
It has long been the practice to observe the right of integrity of the living dramatist in the United
Kingdom. If the playwright is relatively new, the producer will try to have the right to adapt the
words and generally it is the author who will suggest the changes if needed. He will always
have the right to object to any changes that would be derogatory. The producer cannot make
changes to the play and to the original musical work unless absolutely necessary. As regards
the costumes and other accessories used in theatre, if the designer is well known, he has
power to bargain and he will not allow changes; on the contrary, if the designer is not yet
established, he will accept the modifications, because he will fear not to be employed.
According to the opinion of M. Flint, the introduction in English copyright law of the attribution
right, has made no difference in the theatre world, as the artists have always been granted the
right to appear on posters and adverts for the play.711 Following the letter of the law, theatre
producers have no moral rights.
IV. Alienability and waiver of moral rights
Moral rights are inalienable between living persons (art. 94). They can be waived (art. 95), in a
written document, signed by the person who waives his right (art. 87(2)). They can be waived
either generally or by reference to specific works and either conditionally or unconditionally.
Such waivers can also be for future works, and can be revocable (art. 87(3)). Any other waiver
is possible on the basis of the common law of contracts (art. 87(4)). If the waiver is made for
future works, it is implied to extend to licensees and heirs of the contracting party. If the moral
rights are waived generally and in an irrevocable manner, there are lost but only to the
contracting party. If the waiver is revocable, the author can revoke it and try to obtain the
cessation of the violation from the copyright holder. Therefore, the British system forces the
author to detail the extent of the waivers and the revocations. A consequence is that ghostwriters
can never reveal their identity if they have waived their attribution right.712
In addition to the waiver, a special rule provides that acts do not either violate any of the four
moral rights if there is a consent (oral or written, formal or informal, and express or implied) by
the author (art. 87 (1)). The difference between the waiver and the consent is that an author
can always withdraw his consent but never withdraw his waiver.713
To comment on remedies that authors could use, when moral rights are of no help, mention
must be made of an old case, which struck down a contractual practice which “prevented a film
star who had built up a reputation under a pseudonym from using that name when appearing in
films produced by other companies.”714 The clause was considered unreasonable.
Status of the employed author
Authors of works published in newspapers, magazines, periodicals, encyclopaedias,
dictionaries, year books, collective works of reference, free lance as well as commissioned and
711 M. F. FLINT, ALAI 1993, p. 471.
712 For extensive discussion on ghost-writers' rights, see M. LUCKMAN, p. 25.
713 M. LUCKMAN, p. 31.
714 Hepworth Manufacturing Co. Ltd v. Ryot (1920) 1 Ch. 1, cited by G. DWORKIN, ‘Moral right and
English Copyright Law’, IIC, Vol. 12, n°4, 1981, p. 482.
149
employed authors have no moral rights (art. 11).715 The employer is not obliged to identify his
employee on the work. Therefore, the right of attribution of an employed author remains
discretionary, in the hands of the employer. If the author is not identified, then he does not have
the right of integrity either. The employer has the right to make modifications. Conversely, if the
employer agrees to identify him, he has a right of integrity.716 This right is however less strong
than the right to object to any derogatory treatment, it only amounts to dissociate himself from it
by disclaimer. This means that he has the right to oblige the employer to indicate sufficiently
clearly on the work that the work has been subject to treatment to which the author has not
given his consent (art. 82).717
So, to be concrete, as regards journalists, for instance, several provisions must be combined,
namely, art. 11 and art. 79 and 82. For journalists, it is not purely a moral rights issue718 but
also an authorship one, as they are not considered as authors in the United Kingdom (art. 11
states that if an author is employed, the employer is the author of all copyright rights on the
work at the outset, except otherwise stated). Actually, the question of employment erases the
question of moral rights, as it comes first (one must first be employed and then create a work to
have moral rights, but when the author signs the contract, he is employed and thus
automatically has no moral rights, unless otherwise stated in the contract). Journalists could
have a case if they could prove that this employment issue attracts production to the United
Kingdom. But this is hard to prove. None of the case law proves this.
715 S. M. STEWART, p. 514.
716 S. M. STEWART, p. 514.
717 G. DWORKIN, ALAI 1993, p. 102; S. M. STEWART, p. 514.
718 TO BE REMINDED : Journalists have no rights of attribution nor of integrity (art. 79 (5)) states that the
right cannot be exercised as regards a work created to report current events or news. Art. 79 (6) further
states that the right cannot be exercised as regards publications in journals, magazines and other
periodicals; see art. 82 (3) & (4) in similar terms for the right of integrity).
150
V. Duration of moral rights protection
Rights of attribution, integrity and to privacy have the same length than the copyright in the
work. The right to object to any abusive attribution of the work extinguishes 20 years after the
death of the author (art. 86). Moral rights are transmissible on death by a will. If there is no will,
the author’s personal representative is entitled to exercise his rights.719 These rights cannot
be transferred or divested by personal representatives after administration of the estate is
complete.720
VI. Impact of certain other areas of law on moral rights protection
1. Personality rights protection and right of a person on his/her image
The United Kingdom recognises "personal rights". There are some decisions which apply the
personal rights to the field of copyright law (e.g. in 1816, Byron obtained a decision which
forbade the publication of a book which was attributed to him but where other texts of other
authors were included).721
2. The right to privacy
a. Legislation
Art. 85 introduces a right to privacy for the person who commissions the taking of photographs
or the making of a video for private and domestic purposes.722 The right of privacy is not a
moral right stricto sensu as the author does not enjoy the right but the commissioner.723
According to this provision, the commissioner does not acquire the copyright in the work but
can restrain use that the copyright owner could make. An exception is the incidental inclusion of
the work in another. According to the wording of the Act, there is no right of privacy for
commissioners of painted portraits. It is curious however that the right is given on the
commissioner and not to the person whose image is subjected to publicity. The reason seems
to be that it would be so difficult to require permission of all in a group photograph that the
commissioner is put in their stead.724 The right does only apply to the whole or a substantial
part of the work. The words should be construed in a sense favourable to the protection of a
person's privacy in a domestic sphere.725 If it is a joint commission, a waiver by one of the
commissioners does not affect the rights of others (Art. 88 (6) (b)). Thus when one
719 J. PHILLIPS, R. DURIE, I. KARET, p. 63. For more details, see also E.P. SKONE JAMES, n°11-75,
p. 643.
720 Ibid. P. 644. As to joint authorship and transmission after death, see E.P. SKONE JAMES, n°11-80,
p. 646.
721 Byron v. Johnston (1816) 2 Mer. 29, 35 E.R. 851.
722 The words "private and domestic" are conjunctive. See E.P. SKONE JAMES, n°11-68, p. 640. The
contract of commission does not need to be for money to enjoy the right to privacy, see W. R. CORNISH,
n° 11-85, p. 398.
723 G. DWORKIN, ALAI 1993, p. 97.
724 W.R. CORNISH, n° 11-86, p. 398.
725 E.P. SKONE JAMES, n° 11-70, p. 641.
151
commissioner agrees to the publication of a photograph, the rights of the other cannot be
affected.
b. Case law
A couple who had commissioned a photographer to take pictures of their wedding restrained
successfully the photographer from selling such family pictures to the press for publication,
where a member of the family had been murdered.726
3. Action in defamation and action in passing-off
Both actions of defamation and passing off can complement actions based on moral rights. The
action in defamation is useful when the work falsely represented is minor and there is a
violation of the author’s reputation. The action in defamation can be undertaken together with
the action in passing off. The action in passing off is more adapted to works known by the
public. This action can be undertaken when a third party passes off his goods as the ones of
his competitor, when a third party uses illegally the mark or name of another, when a competitor
confuses a consumer. This action is only possible in the commercial sector.727 These actions
can result in protecting the work’s integrity.
For instance in Lee v. Gibbens, a scholarly work which had been published in a smaller and
cheaper form and where the preface, the introduction and the bibliography and index had been
omitted was considered defamatory.728 In like manner, the publication a book in an offensive
and vulgar paper jacket, which suggests that the book is of the same quality is also
defamatory.729
In Humphreys v. Thomson, an author won against an editor who had cut and added passages
in his text. This was against the reputation of the author.730 Frank Harris obtained that the
mention ‘My Life and Loves’ be not indicated on an abridged version of his work, because the
public could be confused and think it was the original version.731 In Samuelson v. Producers’
Distributing Co. Ltd, the author of dramatic sketch won against a producer who wished to adapt
the sketch into a movie and present it to the public. It was an infringement of his exclusive right
to adapt the sketch.732 In another case, a known writer obtained damages for the false
726 Williams v. Settle (1960) 2 All ER 806, (1960) 1 WLR 1072; see S.M. STEWART, p. 515.
727 See e.g. Archbold v. Sweet, (1832) 5 Car. & P. 219 (both actions (defamation and passing off) were
available; editor had prepared a new edition but there were errors and inaccuracies and he presented the
work as having been edited by original author); 172 E.R. 947, Wood v. Butterworth (1901-04) M.C.C. 91;
Landa v. Greenberg (1908) 24 T.L.R. 441 (a journalist who had used a pseudonym in newspaper articles
and established a reputation in that name, could prevent other journalists to use his pseudonym after he
left the newspaper).
728 Lee v. Gibbens (1892) 67 L.T. 263.
729 Moseley v. Stanley Paul & Co. (1917-23) M.C.C. 341; E.P. SKONE JAMES, p. 629, n° 11-44.
730 (1905-10) Mac. C.C. 148
731 Allen v. Brown Watson (1965) R.P.C. 191.
732 (1932) 1 Ch. 201; 48 R.P.C. 580.
152
attribution of a work which had no style nor humour.733 A false attribution can also be an
‘injurious falsehood’, if the conditions of the action are met.734
For certain authors, there is a substantial difference between this action and an action on the
right of integrity because the test for the action in defamation is objective (while the test for the
right of integrity is subjective) so that there is much less chances to win an action in
defamation.735 As said beforehand, other authors consider that the test to judge of a violation
of integrity is objective.
4. Action based on the contract
Actions based on contracts can be undertaken against the contracting party only and not
against a third party.736 The author can, in a contract, specify the modifications that he does
not authorise. On the basis of the contract, the author can then act against the contracting
party who would make unauthorised modifications. For instance, in Frisby v. BBC, the BBC had
agreed, by contract not to structurally alter the dramatic work. The court judged that the BBC
could not suppress a sexual allusion.737
733 Ridge v. English Illustrated Magazine (1911-1916) Mac. C.C. 91.
734 W.R. CORNISH, Intellectual Property : Patents, Copyright, Trade Marks and Allied Rights, 1st ed., pp.
501-504.
735 A STROWEL, 1993, citing G. DWORKIN, ‘The moral right and English Copyright law’, in IIC, 1981,
12, p. 476-492 and W.R. CORNISH, ‘Moral rights under the 1988 Act’, EIPR, 1989, p. 450.
736 See e.g. Frisby v. BBC (1967) 2 All E.R. 106; 1 Q.B. 349 and Joseph v. National Magazine Co. (1959)
1 ch. 14. In these two cases, the authors took action against alterations (cuts, changes of conclusion, etc.)
of their texts by the contracting party; refusing these modifications, they acted on the contract and won.
737 (1967) All E. R. 106; 19 B. 349.
153
Summary
Legislation is dualistic. There is no right of disclosure but an economic right of publication. The
right of attribution consists of two prerogatives : the right to be identified and te right to oppose
false attributions. The right to be identified necessitates an assertion in writing. In addition,
there are numerous cases in which the right will not apply. The right of integrity is the right to
object to any derogatory treatment detrimental to the author’s honour or reputation. These
terms “derogatory treatment” are to be interpreted very strictly. The right of integrity is equally
packed full of exceptions. Al moral rights are fully transferable under British law. In addition
large waivers are permitted.
Case law arising after the 1988 CDPA is not abundant. The only case which could potentially
have an impact on the free circulation of works within the Union is the George Michael case.
However, in such a speculative situation, it seems reasonable to believe on the basis of the
several member states case law analysed in this study that no or very few courts would have
judged differently.
154
II. Tables of comparison
155
I - types and characteristics of moral rights
Countries Disclosure Paternity Integrity Modification adaptation Retract
Austria
MONISTIC
• Right to decide whether
by whom & how the
work is disclosed.
• Right is not expressly
stated in Act.
• Right not distinct from
economic publication
right.
• Right to claim
authorship.
• Right to decide if a
designation & which
designation.
• Pseudonymous &
anonymous designations
possible.
• against contracting &
1/3 parties
• if author expressly
allowed modifications,
objection only to
modifications seriously
harming
• respect due even if use
is free
• Adapter must respect
rights of original author
Does not exist
Belgium
DUALISTIC
• Right to decide when
work is completed &
when to disclose it
• Right not to disclose
even if completed
• Right to prevent the
disclosure
• Disclosure right is not
exhausted by the first
means of disclosure
• undisclosed works
cannot be attached
• Right distinct from
economic publication
right
• Right to publish under
his name
• Right to remain
anonymous or to use a
pseudonym
• Right to object to false
attributions
• presumption of
authorship for person
whose name appears on
work
• presumption only valid
towards third parties
• Right to object to
distortion, mutilation,
modification or other
derogatory act
• no need to prove
prejudice to honour or
reputation, except when
work is changed of its
context
• right to object to
destruction of original
work (not specifically
stated in Act)
Adapter must respect
rights of original author
Does not exist
156
Countries Disclosure Paternity Integrity Modification adaptation Retract
France
DUALISTIC
• Right to decide whether
& how to disclose
• There must be an
INTENT to disclose
• Right of disclosure
enables author to force
contracting party to
publish
• Right to refuse to
disclose even if contract
of publication (subject to
indemnification)
• Disclosure right is not
exhausted by the first
means of disclosure
• Right to have his name
& quality respected
• Right to remain
anonymous or use a
pseudonym
• Rebuttable presumption
of authorship in favour of
person whose name
appears on the work
• Right to objet to false
attribution? (controversy)
Right to object to any
modification violating the
integrity of the work or
modifying its spirit
No need to prove
prejudice
• adapter must respect
rights or original author;
in particular, he must ask
authorisation to disclose
the original work
• adapter must respect the
spirit of the work
• Right to modify the
work or to put an end
to exploitation
because of moral
reasons
• Obligation to offer
possibility to reexploit
the work in
priority & at same
conditions to former
contracting party
Obligation to
indemnify contracting
party
157
Countries Disclosure Paternity Integrity Modification adaptation Retract
Germany • Right to decide whether
& how work must be
published & to
communicate publicly or
describe the content of
his work
• Right of disclosure on
modifications of a
previously disclosed
work
• Right to be named &
right to decide whether
the work must bear an
author's designation & if
so, which one
• Right to object to false
attribution
• Right to choose a
pseudonym or be
anonymous
• Presumption of
authorship in favour of
person whose name is
affixed on work (or
copies) in a customary
manner
• Obligation to cite source
in certain cases (art. 63)
• Right to object to any
distortion or mutilation
prejudicial to his
legitimate intellectual &
personal interests in
connection with his work
• Right to object to
modifications if the
work's use is free, even if
use is private
Modifications
1. modifications are
possible if author cannot
object to them in good
faith
2. Translations, extracts or
change of key are allowed
if the work's use requires
it
3. modifications of photos
are possible if required by
the reproduction
mechanism
Adaptations
the author's consent is
required to adapt or
transform his work
• Right to revoke the
exploitation of works
if it no longer reflects
his conviction
• obligation to
indemnify contracting
party
• obligation to offer
previous contracting
party the same type of
right on reasonable
conditions
• right cannot be
exercised by coauthors
& by authors
of pre-existing works
158
Countries Disclosure Paternity Integrity Modification adaptation Retract
Greece Right to decide when,
how & where work is
disclosed to the public
• Right to be named
"insofar as possible"
• Right to choose a
pseudonym or to remain
anonymous
• presumption of authorship
in favour of person
whose name appears on
works or copies
• editor of pseudonymous
& anonymous works can
exercise moral rights
Right to object to any
distortion, mutilation or
other modification of
work & to any offence
due to a public
presentation of work
Right to prevent
adaptation, arrangement
& translation
• Right to retract only
for scientific &
literary works only if
change of conviction
• Obligation to
indemnify contracting
party & offer him in
priority the possibility
to contract in similar
terms
Ireland Does not exist • Right to object to false
attribution
• Right to publish
anonymously or under a
pseudonym
• Obligation to mention
source
Unlawful to publish (…)
a work under a modified
form, as if it had not been
modified only for works
of plastic arts
Does not exist
159
Countries Disclosure Paternity Integrity Modification adaptation Retract
Italy • Right to decide whether,
when & how to disclose
• Not expressly stated in
Act
• Right to prevent the
disclosure
• Right of employer to
have the author replaced
& disclose the whole
work if author does not
want or cannot complete
it
• Right to claim
authorship
• Right to remain
anonymous or choose a
pseudonym
• Right to be mentioned
on derived works
• Right to act against false
attribution
• Right to be named if
author could not complete
work
• Right to request not to
be named on uncompleted
work completed by
second author
Right to object to any
distortion, mutilation or
modification and any
derogatory action
prejudicial to honour or
reputation
• Right for translater and
adapter to be named
• Right of author to
prevent modification,
translation or adaptation
• author who has accepted
modifications cannot
prevent them
• Right to withdraw
the work from
commerce for serious
moral reasons
• Obligation to
indemnity right
holder• No obligation to
offer to previous
contracting party to
contract at same
conditions
• Obligation to
declare expressly that
author intends to
retract
Luxembourg Does not exist • Right to be anonymous
or to choose a pseudonym
• Rebuttable presumption
in favour of person whose
name is affixed on work
according to customs
Right to object to acts
which violate honour or
reputation
Right to prevent
adaptations, arrangements
and translations
(economic right)
Does not exist
160
Countries Disclosure Paternity Integrity Modification adaptation Retract
Netherlands
DUALISTIC
Does not exist, but
economic right of
publication
• Right to prevent
unchanged re-edition of
work
• Right to be named
• Right to object to
publication if he is not
named unless objection is
unreasonable
• In this case, author has
burden of proof that
omission is unfair
• Right to publish under a
pseudonym
• Right to object to false
attribution
• Rebuttable presumption
in favour of person whose
name is written on work
or if there is no
designation in favour of
person who makes it
public
• Editor can exercise
authors' rights when
author is anonym or has a
pseudonym
• Right to object to
modifications which alter
the essence of work
unless unreasonable
• Right to object to any
deformation, mutilation
or impairment if
prejudicial to honour or
reputation & author has
burden of proof
• Right of respect applies
even if work's use is free
• Economic rights of
translation & adaptation
(including right of
reproduction)
• Right to make
modifications in good
faith in accordance with
rules of social conduct
• This right is similar to a
right of retract
Does not exist but see
right of modification
161
Countries Disclosure Paternity Integrity Modification adaptation Retract
Portugal Right not to publish not
expressly stated
• Right to be named
• Right to remain
anonymous
• presumption in favour
of person whose name is
written on work or
mentioned during
communication of work
• Right to prevent
someone to use same
name to publish
• Right to object to
modifications if
prejudicial to honour or
reputation
• Right to object to
destruction
• Right to object to
modification even if use
of work is legal
Right of modification is
moral right: right to
introduce modifications if
not prejudicial to work
• Right to retract for
valid moral reasons
• Obligation to
indemnify
• No obligation to
offer preferentially to
previous contracting
party in case of re-
exploitation
Spain
MONISTIC ?
(controversy)
• Right to decide whether
to publish, and if so, how
• Right not to publish
• Rights of
pseudonymous or
anonymous author are
exercised by publisher
with author's consent• Right expires with first
disclosure
• Unfinished works
cannot be attached
• Right to remain
anonymous or choose a
pseudonym
• Right to be named
• Right to object to false
attribution
Right to object to
distortion, modification,
alteration or any act
prejudicial to legitimate
interests or to reputation
• Moral right of author to
modify work but must
respect rights acquired by
third parties
• Exceptions: not possible
to change work if work is
declared of "cultural
interest"
• Right to withdraw
work from commerce
because of change of
moral or intellectual
convictions
• obligation to
indemnify
• obligation to offer
preferentially to
previous holder &
under comparable
conditions to those
previously enjoyed
162
Countries Disclosure Paternity Integrity Modification adaptation Retract
United Kingdom
DUALISTIC
• Not expressly
recognized but
comprised in economic
right of publication
• Exhausted with first
issue of work
• Right to be identified &
obligation to assert the
right in writing
• Right to choose a
pseudonym
• Right to object to false
attribution belongs to
author & any person
• Right to object to false
attribution if work is
falsely represented as
being an adaptation of
work
• Right to object to any
modification prejudicial
to honour or reputation
• modification must be
material (i.e. adjunction,
suppression,
transformation or
adaptation)
• modification must
violate honour or
reputation
• No obligation to assert
the right to be protected
Paternity:
Right of author of adapted
work to be named
Does not exist
Nordic Countries Not expressly stated in
the Act but included in
right to make available to
the public
Right to be named
according to the practice
in the sector concerned
• Right to object to
prejudicial acts
• if assignment of
economic rights, it does
not give power to alter
unless assignment implies
it
No independent right of
adaptation
No specific right but
possible under civil
law rules
163
Countries Access Performers Alienability/Waiver Duration
Austria
MONISTIC
author must take into
consideration the interest of the
owner while exercising his right of
access
owner is not obliged to return
work to author in order to make
reprroductions nor is he obliged to
keep the work in good condition
• Right to be named • Non transferable
• non waivable
• collecting society can
exercise moral rights insofar as
necessitated for exercise of
economic rights
* Author: 70 years after death
• heirs can exercise right of
paternity only
* Performer = never expires
before death of holder of
economic rights; after his death
exercise by next holder of
economic rights
Belgium
DUALISTIC
Right to access only to exercise
economic rights in a reasonable
measure
• Right to be named in conformity
with loyal professional practices
• Right to object to inexact
attribution
• Right to object to acts prejudicial
to honour or reputation only
• Right of integrity cannot violate
author's rights
• non transferable
• global waiver prohibited
• no writing required
(controversed)
• if transfer of adaptation right,
author can still act against
violations of honour or
reputation
• collecting society can have
mandate to exercise moral
rights
* Author: 70 years after death
164
Countries Access Performers Alienability/Waiver Duration
France
DUALISTIC
• Right to access the work
• Right to ask tribunal to order
owner to give access to work
• Right to be named
• Right of respect of performance
• Complementary artists have no
moral rights
• performers'rights cannot interfere
with authors'rights
* Author :
• non transferable
• partial waivers allowed
• waivers ex ante prohibited;
waivers ex post allowed
• writing required but waiver
can be implied from
circumstances
• ghost-writer can always
reveal his identity
* Performer :
inalienable
* Author: perpetual rights
Exception : right of retract: only
author's life
* Performer
• Heirs can exercise rights, &
Minister of Culture if there are
no heirs
Germany Right to access work to reproduce
or adapt it, as long as necessary
and not prejudicial to interests of
possessor
Paternity= No, but in audiovisual
sector, they can be named on basis
of practice
Integrity
Right to object to any distortion or
alteration prejudicial to his standing
or reputation
• non transferable
• waivers ex post possible
•waivers ex ante possible but
not absolutely binding
• a ghost-writer can always
reveal his identity
• authors can authorise
collecting society to exercise
their moral rights
* Author: 70 years after death
* Performer:
life or 25 years after
performance if it is later
Heirs of authors & performers
are entitled to exercise rights
165
Countries Access Performers Alienability/Waiver Duration
Greece Right to access work, provided it
causes the least inconvenience to
owner
• Right to be named
• Right to object to any alteration
• Performers rights cannot encroach
on author's rights
• non transferable
• waiver possible in certain
cases
• writing required
* Author:
70 years after death
• heirs can exercise the rights
during these 70 years;
afterwards, Minister of Culture
* Performer :
life time
After death, heirs exercise rights
Ireland Does not exist Does not exist • alienable
Italy Does not exist • possibility to replace main
performers & conductor of chorus
only for serious reasons
• Paternity: Only for performers
having leading parts of dramatic,
literary or musical works
•Integrity: right to object to
alterations if prejudicial to honour
or reputation
• non transferable
• waivers of paternity right are
void
• waivers of right or respect are
possible but if adaptations
would be prejudicial to honour
or reputation, contract is void
• moral rights cannot be
exercised by collecting
societies
* Author:
perpetual, except right of retract,
which expires with author
• rights are exercised by heirs
* Performer: 20 years since the
end of year of performance
Luxembourg Does not exist Does not exist • non transferable
• specific waiver possible
• anonymous or pseudonymous
authors can reveal their
identity
70 years after death. Heirs or
person designated in will, can
exercise rights
166
Countries Access Performers Alienability/Waiver Duration
Netherlands
DUALISTIC
Does not exist • Right to be named
• Right to object to false attribution
• Right to object to modification,
unless unreasonable
• Right to object to modifications
prejudicial to honour or reputation
* Author :
• non transferable
• partial waiver of right of
paternity & integrity, except
right to object to modifications
prejudicial to honour or
reputation
• waiver can be implicit
• waivers ex ante possible
• ghost-writer can always
reveal his identity
• collecting societies cannot
own moral rights
• employer is holder of authors'
rights (controversy about
moral rights)
* Performer :
• partial waiver of right of
paternity & integrity, except
prejudicial alterations
• must be in writing
* Author:
expire with death, unless
someone is designated in will; in
this case, heir can exercise for 70
years
Author can designate in will a
collecting society to exercise his
moral rights
* Performer :
50 years after death if person
designated in will
167
Countries Access Performers Alienability/Waiver Duration
Portugal Does not exist • Right to be named
• Right to object to modifications
• Rights of performers cannot
interfere with authors' rights
• non transferable
• waivers possible (i.e. if work
is commissioned or financed)
• ghost-writer can always
reveal his identity
• waiver of right of retract
controversial
* Author:
Perpetual & heirs exercise
rights 70 years after death.
When work is in public domain,
Minister of Culture exercises
rights
* Performer:
50 years from first day of year
following performance
Spain
MONISTIC ?
(controversy)
• Right to access rare or unique
copies when they are possessed by
third parties to exercise any of his
rights
• Must cause the least
inconvenience
• Must indemnify if damages
• No right to ask to move work
• Right to be named
• Right to object to acts prejudicial
to honour or reputation
• Performers' rights cannot cause
prejudice to authors' rights
• non transferable
• non waivable
* AUTHOR :
Paternity & Integrity :
perpetual
Disclosure :
70 years after death
Right not to publish
60 years after death
Retract, access right to modify
expire with author.
Rights are exercised by heirs; if
no heirs, public administrations
or cultural institutions
PERFORMER:
20 years after death; rights are
exercised by heirs
168
Countries Access Performers Alienability/Waiver Duration
United Kingdom
DUALISTIC
Does not exist No moral rights • transferable between living
persons
• waivable in writing
• waivers possible:
- for future works
- global or specific
- irrevocable or revocable
- conditional or unconditional
• ghost-writer can never reveal
his identity
• if author consents to the act,
no violation
* Contract of employment
(works made for hive)
• NO RIGHTS of:
- paternity
- integrity but author can ask
the removal of his name BUT
if author is identified, he has a
right to dissociate himself from
work by disclaimer
* Free lance &
commissionned authors:
no moral rights
PATERNITY, INTEGRITY &
PRIVACY :
70 years after death
Right to object to false
attribution : 20 years after death
169
Countries Access Performers Alienability/Waiver Duration
Nordic Countries FINLAND:
yes, unless unreasonable
inconvenience
1. only if works of fine arts
2. necessary for author's artistic
activity
3. to exercise economic rights
DENMARK & SWEDEN:
no right of access
DENMARK & SWEDEN: same
protection as authors
FINLAND:
minimum level of protection as
harmonised within the European
Union
• non transferable
• specific & limited waivers
allowed
70 years after author's death
+ FINLAND:
specific protection after work
has fallen into the public domain
170
II - types of works
Country Literary & dramatic Musical Plastic works
-photos
-paintings
-sculptures
Architectural
Austria Paternity: adaptations and copies of
graphic & plastic art works may not
be credited in a way that creates
impression it is the original
Integrity:
respect due even if use is private for
graphic & plastic art works
Belgium Integrity:
architects can waive their right as
long as modifications do not violate
their honour or reputation
France
Germany Works of applied arts
The author of objects of design does
not have the right to be named on
objects made in more than one
examplary
Integrity
modifications of photographs are
allowed if required by the mechanism
of reproduction
171
Country Literary & dramatic Musical Plastic works
-photos
-paintings
-sculptures
Architectural
Greece
Ireland right to act against publication or sale
of a modified work if it is presented as
if it had not been modified
Italy Integrity
editor of journal has the right
to modify journalist's article if
necessitated by nature or
purpose of journal
• possibility to replace main
performers and conducter of
chorus only for serious reasons
• authors of texts for movies
can exploit their contributions
separately if not prejudicial to
producer's rights
Integrity
• modifications can be made if
requested by the technical
necessities of recording
• authors of music for movies
can exploit their contributions
separately if not prejudicial to
producer's rights
• author of dramatico-musical
work, of musical composition
with words, of choreographic
works or pantomimes cannot use
their contribution in conjunction
with other musical works (except
in certain cases)
Right of photographer to be
mentioned on copies of his works in
scientific or didactic works
Integrity
• architect cannot object to
modifications rendered necessary in
the course of realisation of work or
after work is completed
• if state decides that work has
important artistic character, author
can modify
Luxembourg • co-author of collaboration
work can use contribution
separately if not prejudicial to
exploitation of joint work
Netherlands
172
Country Literary & dramatic Musical Plastic works
-photos
-paintings
-sculptures
Architectural
Portugal • Right of editor of
dictionaries, encyclopedia and
didactic works to have the
work completed by another if
editor indicates that work is
being completed by someone
or modified
• Special right to modify if not
prejudicial to structure of
work, if does not reduce
dramatic or spectacular interest
and does not prejudice
rehearsal or representation
scheduling• Right to correct before
publication
• Special right of retract if part
of dramatic work is suppressed
and meaning is compromised
or misrepresented
• Special right to modify
phonograms if not prejudical
• No right for performer to be
mentioned if audio program is
without speech or if customs
allow name to be omitted
Right to object to any modification of
work of plastic art incorporated in
architectural work
• Right to demand that his name be
omitted on building if owner has
modified it
• No right to object to destruction
• Right to object to any modification
173
Country Literary & dramatic Musical Plastic works
-photos
-paintings
-sculptures
Architectural
Spain Integrity
in theatrical representations,
specific prohibition to make
cuts, changes, etc.
• author can correct proofs if
indispensable, do not alter the
work's purpose or nature & do
not increase cost of publication
Integrity
specific prohibition to make
cuts, alterations, etc.
Disclosure
alienation of the work (object), by e.g.
a sale, amounts to disclosure: author
can only object to exhibition if
prejudicial to his honour or reputation
174
Country Literary & dramatic Musical Plastic works
-photos
-paintings
-sculptures
Architectural
United Kingdom Paternity
Exceptions:
• if work reports current events
• if work published in
newspaper, magazine,
periodical, encyclopaedia,
dictionary, year book
• crown copyright or copyright
belongs to international
organization
Integrity
Exceptions:
• if work reports current events
• if work published in
magazine• translations
• if crown copyright author can
ask removal of his name
• if act avoids offence or
complies with a statutory duty
• Theatre producers have no
moral rights
Paternity
• Right to object to false
attribution
• Right to be named on records
& sheets of music & films
Paternity
Exceptions:
• if work reports current events
• if work published in
newspaper, magazine,
periodical, encyclopaedia,
dictionary, year book
• crown copyright or copyright
belongs to international
organization
• if public execution or
broadcasting
Integrity
Exceptions:
change of tone or key
Paternity & integrity
Rights covers public exhibition
Paternity
Right to be named on copies of
artistic works (i.e. photographs
representing work)
No right of paternity for industrial
designs
Paternity Exceptions:
• if work reports current events
• if work published in newspaper,
magazine, periodical, encyclopaedia,
dictionary, year book
• crown copyright or copyright
belongs to international organization
Integrity right exists
for industrial designs
Paternity
Right to be identified on building in
a manner appropriately visible
Integrity
architect cannot object to
detrimental modifications but only
ask the removal of his name
175
Country Software Audiovisual Collaboration (joint works) Collective Composite
Austria • works of collaboration
(indivisible)
Paternity :
• producer has right to be named
as producer
• co-authors right to be named
Integrity
authorisation of co-authors
needed for modifications
* indivisible works:
• each author: right to act against
violation
• agreement between co-authors
needed for modifications
* divisible works
• agreement between co-authors
needed for modifications
• each author can use his
contribution separately
176
Country Software Audiovisual Collaboration (joint works) Collective Composite
Belgium Disclosure:
controversy: either no right,
either possible partial waiver
Paternity = general rules
Integrity:
right to object only to acts
prejudicial to honour or
reputation
All rights alienable &
waivable
• works of collaboration
Disclosure:
work can be disclosed when
agreement between director &
producer
• if co-author doesn't want to
complete his contribution, he
cannot object that it is used
Paternity :
right can only be exercised after
agreement between director &
producer
Integrity
right can only be exercised after
agreement between director &
producer
Authors can act separately against
violations of their rights
Authors can act against other
authors to disclose the works to
omit a name or have the work
completed by another person
Does not exist authors of new work must
respect moral rights of
authors of pre-existing
works
177
Country Software Audiovisual Collaboration (joint works) Collective Composite
France Integrity
right to object only to acts
prejudicial to honour or
reputation
Paternity & disclosure =
general rules
Right to modify & right to
retract do not exist
• Works of collaboration
Disclosure
work can be disclosed when
agreement between director, or
possibly the joint authors &
director
• if a co-author doesn't want to
complete his contribution, he
cannot object that it is used
• co-authors can use
contributions for another genre
Integrity
• modifications to the last
version require consent of
director, possibly co-authors &
producer
• master copy can never be
destroyed
• all co-authors must agree to
disclose the work. Co-authors can
ask tribunal to force other coauthors
to disclose
• co-authors can exercise rights of
paternity, of respect & of retract
individually
• if work is divisible, co-author can
exploit his contribution separately
if does not prejudice the
exploitation of the work of
collaboration
• the legal person has the
power to act against violations
of moral rights
• authors can act with legal
person or separately
• authors cannot exercise rights
when work is not completed
• author can be replaced if does
not want to complete his
contribution
• authors of new work
must respect moral rights
of authors of pre-existing
works
• right of retract can be
exercised both by authors
of pre-existing works &
of composite works
178
Country Software Audiovisual Collaboration (joint works) Collective Composite
Germany Discrosure & paternity
general rules
Integrity
software can be adapted
without author's consent
Disclosure
right of director to review final
cut before releasing it to
distributors
Integrity
right to object to gross
distortions or mutilations of
movie only, during the
realisation & exploitation
Retract
cannot be exercised
Disclosure
• right must be exercised jointly
• modifications need agreement of
all co-authors
• if co-author refuses to disclose
without good reasons, other coauthors
can act to have him
disclose
Does not exist Does not exist
but there are
"compound" works
(art. 9)
Greece No particular provision :
general rules apply
Disclosure
rights can only be exercised on
final version approved by
director
Integrity
right to object to any
modification belongs to director
& co-directors only
all co-authors have equal moral
rights unless otherwise provided
the legal person is the original
author but if contributions can
be exploited separately,
authors are entitled to do so
Authors are original
holders & can exploit
their rights separately if
capable of separate
exploitation
Ireland
179
Country Software Audiovisual Collaboration (joint works) Collective Composite
Italy No special provisions :
general rules apply
Paternity
• general rules apply
• if movie was modified, author
can have his name removed
Integrity
• Right of author to object to
modifications, translations &
transformations by producer
• Right of author to object to
publication of modified work if
prejudicial to honour or
reputation
• Right of author to ask
destruction of modified version
in extremely serious cases
• Right of producer to modify
work in the extent necessary
• Arbitration procedure if no
agreement on modifications
between authors & producer
• moral rights can be exercised by
co-authors separately
• Agreement of all co-authors is
needed to disclose & modify
• co-authors can act against refusal
of other author to disclose
Paternity
right to be mentioned,
according to customary rules
(except for a contribution in a
journal / review)
180
Country Software Audiovisual Collaboration (joint works) Collective Composite
Luxembourg • not collaboration works
• producer owns rights : seems
not possible that owns moral
rights
Paternity :
general rules
Integrity :
producer can modify work if
indispensable for its
exploitation, as long as non
prejudicial to honour or
reputation
• each author has an individual
right to act against violations
• authors cannot use their
contribution in other works of
collaboration
• authors' rights belong
exclusively to producer
181
Country Software Audiovisual Collaboration (joint works) Collective Composite
Netherlands No specific rules
• Disclosure = undisclosed
works cannot be attached
• Integrity = no violation if
user adapts program for its
own use
• Collaboration work
Disclosure
• producer only decides when
work is completed
Paternity
• Right of author to be
mentioned at usual place with
his capacity & nature of
contribution
• Right to require that his
contribution be shown
• Right to object to be named
unless unreasonable
• Right to be named for
uncompleted contribution
Integrity
• presumption to have waived
right to object to modifications
not prejudicial to honour of
reputation
• Right to exploit contribution in
another genre if not detrimental
to audio-visual work
Right to enforce one's rights
individually; unless otherwise
agreed
Legal person which directs
work is presumed the author,
without prejudice to copyright
in each work separately
182
Country Software Audiovisual Collaboration (joint works) Collective Composite
Portugal Rights belong to employer
(controversy about moral
rights)
• Collaboration work
Disclosure:
work is completed when
agreement between author and
producer
Integrity:
• Right to object to
modifications; written consent
needed to modify
• Master copy cannot be
destroyed
Disclosure & paternity
if work is disclosed under name of
only one author, others are
presumed to have assigned rights
to author in whose name work is
published
• Each author can exercise rights
individually & require disclosure
or modification of work
• Legal person owns rights
• If individual contributions
can be separated, rules of joint
works apply
Author of new work must
respect rights of authors
of pre-existing works
183
Country Software Audiovisual Collaboration (joint works) Collective Composite
Spain No specific rules
• No right to object to
subsequent versions of
software by holder of
economic rights
• No right to object to
adaptation by user for its own
use
• collaboration work
• Right to use contribution
separately if not prejudicial to
normal exploitation of audiovisual
work
Disclosure
work is completed when
conform to contract between
director & producer but director
& producer can let co-authors
appreciate if work is completed
• Moral rights can only be
exercised when work is
completed
• Producer can replace co-author
if cannot or does not want to
complete contribution
Integrity
Modifications require consent of
authors who decided its
completion (Exception: audiovisual
works mainly broadcast
but must not be prejudicial to
honour or reputation)
• Master copy cannot be
destroyed
Disclosure & integrity:
• Consent of all is needed to
disclose & to modify
• Right to exploit contribution
separately if not prejudicial to
normal exploitation of work
Moral rights belong to legal
person unless otherwise agreed
Right of author of preexisting
work to exercise
moral rights in new work
if his work is concerned
in new work
184
Country Software Audiovisual Collaboration (joint works) Collective Composite
United
Kingdom
No rights of paternity for
computer programs nor for
computer- generated works nor
for typefaces.
No right of integrity for
computer programs, computergenerated
works but right of
integrity for typefaces
Paternity for directors
Integrity for directors
Exception:
BBC can alter work to avoid
elements contrary to good taste
or decency or which can
encourage disorders or hurt the
public feeling. In this case, BBC
must mention that author does
not agree with alteration
• Every author has independent
moral rights
• Right to object to false attribution
No right of paternity
185
III. Contractual practices and views of rights holders organizations
with regard to problems relating to the protection of moral rights in the
digital environment
Sector-specific survey
1. General
In order to find out how moral rights protection is handled in different sectors of copyright
related industries a survey was conducted among European and international rights holders
organizations. The purpose of the survey was to establish whether digital technologies had
brought about any new problems relating to moral rights protection of authors and performers in
a given sector and whether the eventual problems had, according to the organization, any
impact on the functioning of the Common Market.
The questionnaire sent to rights holders organizations and the list of organizations contacted is
attached to the report.
2. VIEWS OF RIGHTS HOLDERS ORGANIZATIONS
2.1. General
At the general level the overall majority of rights holders organizations did not find any reason
to harmonize the moral rights legislation in the European Community. All rights holders
organizations were unanimous in confirming that digital technology as such has not had any
major impact on moral rights protection. The divergences in the existing national statutory moral
rights protection were recognized and in particular authors and performers organizations
emphasized the deficient level of moral rights protection in the UK (and Ireland). However,
no compelling reasons, with the exceptions described below, were presented as to what impact
these divergences in statutory protection would have upon the Internal Market.
186
2.2. Specific problems in certain sectors
2.2.1. Press
According to the European Federation of Journalists (EFJ)
The advent of digital technology has led to a number of problems. One of the reasons is that
computer specialists are often asked to handle journalistic material, and having no
qualifications in this field many infringements of moral rights take place. Some examples of
this are:
- Satirical cartoons are separated from the text that is an integrated part of the work.
- Independent editorial material is mixed with advertisements in such a way that the public
cannot see which is which.
- Sensitive material intended for publication in a serious and sober context only is used in
a frivolous or detrimental way.
- Independent editorial material is put on the Net without any safeguards, and is thus
beyond the control of any editorial guidelines and open to misuse in a fashion that
traditional newspaper cuttings or analogue copies of radio and television programmes
have never been.
In the area of press the problems seem to relate to the low level of protection in the UK and
Ireland. In particular the fact that news journalists are not recognized as authors under UK law
appears to be of great concern to them. According to EFJ
In these countries it is quite common for publishing houses and producers to make
ultimative demands on all authors to sign over all authors' rights (moral as well as economic)
with no limitations with regard to type of use, expansion over time, territory etc. On the
whole, the balance has tipped so far over in favour of the publishers and producers that it is
virtually a question of existence for the journalists and their media colleagues if they attempt
to muster enough strength to say no to these contracts.
According to EFJ
In countries with a strong protection of moral rights, these rights are normally only
mentioned in collective agreements and individual contracts on further use (and secondary
use) of editorial material, and not in agreements concerning primary use. This is due to the
fact that the legislation protects authors (and performers) by unwaivable moral rights (unless
very specific and very limited use of a work is involved).
187
The reason moral rights are stressed in contracts, agreements and licenses for further use
is that there is a special need to stipulate that the material must only be re-used by third
parties who guarantee to abide by moral rights.
With respect to the use of their material in databases the EFJ states
In the Nordic countries, Germany, France and other EU member states where journalists are
well protected, many different agreements have been entered into concerning how to handle
the use of editorial material in multimedia databases and how to clear rights for and handle
the way such material is made available in digital networks. Some of these agreements are
in-house regulations for proper handling, while others are collective licensing agreements
etc. Some agreements are handled collectively by the various journalist unions, some by
special clearing houses, and others by individual freelances and staff journalists or shop
stewards.
At the general level it seems that there are problems relating to the low level of protection in the
UK and Ireland in the area of press. These problems do not, however, concern the protection of
moral prerogatives of journalists but, rather, it is a question of authorship and in particular the
status of employed authors. Under UK law all rights of employed authors are directly
attributed to the employer. Journalists claimed that there is a tendency in the publishing sector
to concentrate in the UK and Ireland because of the low level of copyright protection in these
countries. This could, in turn, have an impact on the Internal Market.
In contrast, publishers’ organizations showed that in the contractual practice moral rights are
safeguarded. European Newspaper Publishers’ Association (ENPA) did acknowledge that
the exceptions permitted in the UK Copyright Act with respect to the integrity right mean in
practice that staff journalists, freelancers and readers who have submitted letters for
publication, as well as agencies which have submitted illustrations or text in advertising
copy, cannot (subject to contractual agreements) object to the editing of their contributions.
Photographers cannot sue in respect of alterations to the size, colour or proportions of their
published photographs.
If the position was otherwise, the clarity of representation of newspapers could be affected,
and the flexibility of editors and publishers to determine an appropriate format and an
appearance which will attract readers could be hindered.
Some employment contracts contain waivers of the integrity right because a situation could
arise where a work has been published previously by the employer with an attribution to the
188
author. In this situation the Act stipulates that the integrity right could apply and this would
mean, for example, that an employed journalist could object to a work being converted into
digitised form and then subjected to derogatory treatment.
According to the ENPA
The publisher must have the right to define the editorial line of his newspaper and editors
must have the ability to edit the newspaper in conformity to that editorial policy. Moral rights
cannot be used as a tool to jeopardize the newspaper by destroying its editorial character
and disrupting publication.
National legislation should be able to determine whether rights for a journalist to be named
are decided by contract or by general law and what exceptions should exist.
The employed journalist should not be able to oppose modifications of his works by the
employer, unless such modification is prejudicial to the honour or the reputation of the
employed journalist. Modifications of journalist’s work during normal editing and sub-editing
are a necessary practice in newspaper production.
Publishers organizations did not see any need for harmonization at the Community level.
However, they did ask for a general regulation with regard to the transfer of rights to the
employer in employment relations.
Summary
In the sector of the press, journalists do have complaints with at least the English and Irish copyright
systems, but, in our mind, the problem is not so much linked to the low level of protection of moral rights, it
is rather the consequence of the rules on authorship and contracts. Publishers do not recognize any need
for harmonisation of moral rights but agree that common rules should be drafted for the transfer of the
rights.
2.2.2. Audiovisual sector
The problems relating to moral rights protection in the audiovisual sector do not arise in the
relation between the authors and performers, on the one hand, and the producer, on the other
hand. Rather, the infringements of moral rights are committed by broadcasting companies,
189
distributors or other third parties in the process of adapting the given audiovisual work to suit
their particular commercialization requirements. The European case law provides us with
ample examples with respect to violation the director's right to preserve the integrity of the
audiovisual work by, for example, interrupting long feature films with commercial breaks,738 or
by inserting the logo of the television company on a long feature film.739
Case law
In the 1990’s there have also been two leading cases regarding protection of certain moral
rights related questions in US feature films in Europe: the Asphalt Jungle by John Huston
concerning colorization of a black and white feature film and the Danish case concerning
transferring of a feature film onto a video format in a pan-scanned form (the Three Days of the
Condor by Sydney Pollack). The fundamental question in both of these cases was not so much
moral rights protection as such but rather recognition of authorship for the US director of the
film under a continental European law. In both cases the director was recognized as the author
of a film under French and Danish laws respectively.
The French cour de cassation applied the French legislation relating to the status of foreigners
and stated that
"aucune atteinte ne peut être portée à l'intégrité d'une oeuvre littéraire ou artistique, quel
que soit l'Etat sur la territoire duquel cette oeuvre a été divulguée pour la première fois; que
la personne qui en est l'auteur du seul fait de sa création est investie du droit moral institué
à son bénéfice par (l'article 6 de la loi du 11 mars 1957); que ces règles sont des lois
d'application impérative."
The Appellate Court of Versailles, to which the Cour de cassation had returned the judgment for
retrial gave its decision in December 1994 affirming the decision of the Cour de cassation.740
738 See for example, Judgment of the Rome Appellate Court 16 November 1989 in the case "Germi v.
Reteitalia," published in RIDA no. 144, 1990, p. 191 and the decision of the Milan Court from 13 December
1984 concerning the film Romeo e Julietta, directed by Zeffirelli. See also Collova, Taddeo, Les
interruptions publicitaires lors de la diffusion de films à la télévision, 146 RIDA 1990, pp. 124-245.
739 "Hélène Misserly, Rober Guez et SACD v. Société La Cinq", tribunal de grande instance de Paris, 14
March 1990, published in 146 RIDA 1990, pp. 320-324.
740 Angelica, Daniel and Walter Huston, la SACD c. Turner Entertainment, La Cinq, la Société des
réalisateurs de films (SRF), le Syndicat francais des artistes interprètes (SFA), la Fédération européenne
des réalisateurs de l'audiovisuel (FERA), le Syndicat francais des réalisateurs de télévision CGT, le
Syndicat national des techniciens de la production cinématographiques et de télévision, Cour de
cassation, première Chambre civile, 28 May 1991, Decision no. 861 P, published in J.D.I. 1, 1992, pp.
133-148, commented by Edelman, B.; Cour d'appel de Versailles, Arrêt du 19.12.1994, R.G. no. 615/92.;
published in RIDA, April 1995, p. 389, note Kerever, A.
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In its decision the French cour de cassation confirmed that moral rights protection under French
law was part of the ordre public. From the point of view of the European Community this would
seem to entail that the European Union cannot harmonize downwards the provisions of
the French law relating to moral rights protection.
The Danish court applied the general rules of private international law and stated that, because
all the rights in question had been unequivocally transferred to the producer of the film in the
original production contract, and because transferring the film onto a video recording in a panscanned
format was permitted in the contract, making a pan-scanned version of the film did not
infringe director’s rights under Danish law.
Point of view of rightholders
Authors of audiovisual works (AIDAA) did not encounter any specific problems in the
audiovisual sector with respect to moral rights. As an example of a balanced and wellfunctioning
system of moral rights protection in the European Union they presented the French
law which contains detailed regulation with regard to protecting moral rights in audiovisual
works (see also Belgium, supra).
However, in spite of the fact that moral rights protection did not cause any problems in the
audiovisual sector in general, the inferior level of protection afforded by the UK and Irish
copyright laws was brought forward also in the audiovisual sector. To quote the answer given
by the UK Directors and Producers Copyright Society (DPRS):
Any paternity right is not enforceable unless it has been specifically asserted. For instance,
authors of books have always been recognised as authors under UK law. However, so that
book authors can benefit from the new moral rights legislation, the frontispieces of books
published since 1988 invariably carry the inscription ‘The right of xxx to be identified as the
author of this work has been asserted in accordance with the Copyright Designs and
Patents Act 1988’.
Rights of integrity do not need to be asserted in the same way. However, taking advantage
of the possibility that authors can waive their moral rights under Section 87, this action is
invariably required of directors and screenwriters as a contractual pre-condition. Only on
very rare occasions is a creative audiovisual author able to withstand this contractual
pressure. Dorothy Viljoen, a noted UK rights lawyer, has put the case for the British
producers association producers PACT741:
741 ‘Art of the Deal” Dorothy Viljoen, PACT 1997.
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‘As will be appreciated, this moral right can be a sensitive issue. The expression ‘moral
rights’ is of itself emotive, and the rights they bestow on the creators of copyright material go
to the heart of creative endeavour. However, the demands of commercial production and
distribution do not accommodate this sensitivity. All UK (and US) production financiers insist
that moral rights waivers are secured in each and every production contract involving an
assignment or licence of copyright material. Without this waiver they run the risk of their
overall editorial control being challenged, and programmes cannot be sold unless
purchasers are permitted to adapt the material to fit the schedules and other requirements of
their markets. Productions could be put at risk or in limbo if an author or director were to
claim that even very minor cuts or additions to his or her work constituted derogatory
treatment, and took the producer and/or the broadcaster and/or the distributor to court.’
Moral rights are apparently of no concern to the producers, because they are in possession
of the creators’ copyrights (and so have complete control over the content of the work) at the
point of publication. It is the assertion that purchasers be ‘permitted to adapt material
to fit the schedules and other requirements of their markets’ that is hotly disputed by
the creators (emphasis added).
A recently published guide to UK Screen Law published by Lawyers D.J. Freeman on behalf
of PACT742 describes the situation in a subtly different way:
“It is standard practice in the UK film and television industry for directors and authors to
waive their moral rights. This ensures that the production company is able to deal with their
contributions to the programme in any manner which it thinks fit. It is, however, customary
for contracts with writers and directors to include special provisions relating to credits,
notwithstanding any waiver of moral rights.” Needless to say this so-called ‘standard’
practice is strongly opposed by organisations representing both writers and directors. Their
moral rights have been rendered worthless by the very possibility of their being waived.
British director’ contract are often wholly inconsistent in that they contain references to US
‘work for hire’ legislation, while at the same time specifying that it is the director’s services
that are being employer, rather than the director (under UK law directors with the protected
status of employee have no rights as authors, and therefore no possibility of securing moral
rights.)
Summary
742 A short guide to small screen law. PACT & D.J.Freeman. October 1999
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Despite divergences between Member States laws on moral rights in the field of audiovisual works, the
rightholders do no favor any harmonisation at Community level.
2.2.3. Photography and visual arts
According to Pyramide Europe, authors of still images are confronted with two main problems
regarding the protection of their moral rights.
According to Pyramide images are often reproduced without mentioning the author’s name, or
even stating someone else’s name. Although regularly arising in the analogous environment
too, infringements against the right of paternity have multiplied due to the digital
technologies. It seems, however, that some improvements in this respect have occurred in,
e.g. Finland.
Infringements against the right of integrity are almost exclusively caused using the new
technologies: images are altered, adapted, cropped, items are added, etc.
Both cited problems often arise in combination with each other. According to Pyramide the new
technologies largely facilitate the infringements against moral rights, and are a growing
issue of concern for any individual author.
The contractual practice in the field of photography seems to adequately safeguard the
protection of authors’ moral prerogatives. Pyramide gave us evidence that since 1995,
PYRAMIDE EUROPE’s standard contracts, including General Terms for Delivery and Sale,
include i.a. the following terms : “ Unless otherwise expressly agreed, we retain the intellectual
property on all works “ and “ The client has to respect the moral rights linked to our works. The
client promises to respect the integrity of our works and notably to render faithfully their colours
and not to truncate or distort them. Our name must be clearly and unequivocally mentioned
under each reproduction. Failing that, we reserve the right to claim damages. ... “. If used
correctly these General Terms are binding upon both parties.
According to Pyramide these standard clauses and practices are very widely used by most
professional authors (photographers, graphic designers, architects, etc.) and they are very
generally accepted by users and publishers throughout Europe.
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With respect to particular problems relative to digitization and storage of works in databases
Pyramide stated that their members usually check and approve the digitized image personally
before its release, in order to preserve the original level of quality.
Moreover, with regard to use of works in digital databases Pyramide stressed several
problems:
The database manager’s wish to provide the public with a high-quality viewable picture that
is not digitally protected, often conflicts with the author’s wish to protect a digital image as
much as possible by means of watermarking, encryption or any other process.
1) The circulation of uncontrolled copies of low quality (due to illegal digitisation), can
prejudice the author’s reputation, and indirectly have financial consequences due to
negative publicity. Unauthorised copying must be prohibited and a system of
sanctioning should be installed.
2) Moral rights are intimately linked with the economic exercise of author’s rights :
whenever an image is (illegally) made available without the name of its creator, it becomes
almost impossible to remunerate the authors for the reproduction of their work, and a
unsigned work will be even more subject to illegal copying.
At present it is scientifically impossible to develop a system of recognition of visual forms,
whereas text and music are digitally retraceable. Images are the only repertoire that is not
retraceable once the name of the author is erased from the file. Therefore, the indication of
the name of the author should be ensured, and serious sanctions should be applied
in case of non-observance of this obligation.
Visual artists encounter problems with regard to the protection of their moral rights in particular
in connection with personal web-pages. Wide-spread scanning of art works and photographs
from all kinds of media and their subsequent use and manipulation in personal web-pages
leaving out the name of the author has become a serious problem for visual artists world-wide.
Taking into consideration the global nature of digital networks, in particular internet, this kind of
use may no longer be regarded as private, the fact which is often ignored by the general public.
Scanning mostly neutralises any identification methods and combined with the overwhelming
number of web-pages and sites it is in practice impossible to control and track down the
infringing copies of works.
Visual artists have also problems with respect to advertisement and packaging of products in
which connection works are often modified in order to circumvent the fact that the permission to
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use them in original form was not granted by the rights holders.
With regard to the use of art works in data bases visual artists encounter problems with respect
to the works stored in data bases of broadcasting organizations and newspapers when works
have been stored under a legal exemption for a particular kind of use, such as reports of
current events. In these cases authors have had no control over the eventual manipulation of
works through editing, colorization or alike modification. In the analogue world the effect of such
damages was limited because of the temporary nature of use but the digital technology opens
possibilities to infinite re-uses which could be extremely prejudicial to authors moral
prerogatives.
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Summary
In the field of photography and visual arts, problems of integrity of works do arise, but the solution does not
seem to depend on the level of protection of moral rights. The issue is not so much a legal one, it is rather
a practical matter : how to ensure control of the uses ? Therefor, it appears that the legal protection of
technological measures of protection is a more crucial issue for the area of visual arts.
2.2.4. Music
According to the International Federation of Phonogram Producers’ Organizations (IFPI)
specific moral rights problems facing the recording industry today are
- Use of works in the context of advertisements and commercials
- Making of cover versions and re-mixes of sound recordings
- Use of low quality fixations or copies, e.g. bootlegs by third parties
If this kind of use is not covered by existing contract terms an individual permission is being
asked for or the use is terminated.
IFPI also emphasized the role of digital technology in safeguarding moral rights by providing
increased control through the means of encryption, use of digital signatures, watermarks, and
other copy-control techniques. According to the IFPI there is a considerable increase in quality
of transmission of circulated copies and thus less need for adaptation and reductions of any
kind, because digital transmission facilitates transmission in unabridged form and in good
sound quality.
Piracy, one of the biggest negative side-products of digital technology, is, according to IFPI, a
threat not only to rights holders economic rights but also to their moral rights by envading the
market with low quality copies of protected works.
At general level when trying to set moral rights protection into context in a given sector, it
should, according to IFPI, be taken into consideration that
[m]oral rights protection is known to use subjective criteria which are of normative character
using general terms open to interpretation. Moral rights standards thereby refer to
established usage customs, traditions, and traditional rules on the market. For any change
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made to a work, the borderlines between irrelevant change and adaptation on the one hand
and adaptation and deformation on the other hand are determined by notions of what is
acceptable and where a change starts to constitute a grave impediment to the personal
relation of the author to his creation or to his reputation. The same problem of open
normative criteria occurs regarding the relationship of the performer to his performance. All
the mentioned determinations are based on specific and historically grown circumstances
and cannot and should not be circumscribed in general terms. The same is true for the right
of attribution where the question whether and how the author or artist is named depends on
technical feasibilities, business practice and the general custom.
Other rights holders in the field of music did not see any particular problems brought about by
digital technologies in their area.
Summary
In the field of music, piracy and control of uses are real problems. The issue of moral rights should not
focus the attention of the European Commission.
It seems not adequate to tackle the issues of attribution and integrity at the level of the Community, as the
traditional moral rights issues depend on a mix of legal as well as other, more practical, norms (codes of
conduct, deontological rules, etc.).
2.2.5.Performers rights
According to the International Federation of Actors (FIA)
[t]he new digital era represents both a challenge and an opportunity: modern technologies
offer a wide spectrum of means for performers to express their talent in the global market.
But the digital age also brings forth an increased exposure to manipulation and to the theft of
their intellectual property, creating the possibility of serious economic loss. Performances
can now be channelled by state-of-the-art technology to reach millions of households at a
reasonably low price and easily gain a life of their own as perfect digital copies, far from the
reach of their creators.
Because of its peculiar nature, digitalisation makes it simple to reproduce, distribute, change
and recreate a performance. Moral rights can easily be circumvented by digitalisation and
infringements carried out at a global scale, with little effort and in a very short time
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FIA emphasizes the importance of collective union agreements as a tool for safeguarding and
enforcing performers rights. With respect to different ways of protecting performers rights, FIA
notes that
[i]f statutory laws operate smoothly in this respect, equivalent levels of protection are often
enforced through union collective agreements. As a matter of fact, union agreements are
important to reinforce and make entirely unambiguous the kinds of abuses which are of
principal concern to performers, addressed by moral rights.
FIA also demonstrated how moral rights of performers have been safeguarded in standard
agreements in the United Kingdom, Denmark and France.
Sections of collective agreements:
A. British Actors' Equity Association - the information relates to three television collective
agreements (with the BBC, with ITV - the independent broadcasters - and PACT - the
independent producers), as well as the PACT Cinema Film agreement. Considering that
UK does not have moral rights protection enshrined in its statutory law, there are three
possible moral rights issues in these agreements:
- All four agreements deal with credits;
- All three TV agreements ask for consents from performers if extracts are used to ridicule
the performer or are sexually explicit;
- All four agreements have clauses whereby unused recorded material of a sexual nature
will be destroyed.
B. Danish Actors' Association - the information relates to an agreement on Film
productions and to another on TV productions.
- Both agreements deal with changes in the manuscript and dubbing;
- Both agreements have specific rules applying to the use of nude extracts;
- A recent addition to the Film agreement rules on the use of computer-generated
performances.
C. Syndicat Français des Artistes Interprètes - the information relates to the agreement on
TV production.
- The agreement ensures protection in case of role modification. The same provision
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exists in the Film collective agreement.
- The agreement protects the name of the artist.
It would seem that performers moral prerogatives are protected quite satisfactorily in these
agreements.
The musicians (Fédération international des musiciens, FIM) also noted how digital technology
makes it easier to manipulate, alter and modify their performances and use them in different
context and gender than originally. They also note that musicians are obliged to waive the
exercise of their moral rights when dealing with the big multinational companies unless there is
a specific statute prohibiting this.
Since digital technology has made the use of works global, in particular through Internet, FIM
emphasizes the need to find global solutions to rights protection problems. According to FIM
WIPO Phonograms and Performances Treaty should be made the basis for any regulation
relating to moral rights of performers. FIM also wants to make it clear that it will oppose any
implementation of the WPPT in Europe unless it includes moral rights protection for performers.
A somewhat different view with respect to the protection of moral rights of performers under UK
law is expressed by D.J. Freeman in his guide to the UK Screen Law. According to him
“Performers’ paternity rights should be subject to the same assertion provisions, as
described in S.77 (7)(a) and (c) and S.77(8) of the CPDA Act. It is however imperative that
such rights’ assertions are not capable of being dismissed by successors in title, as is
currently commonly the case when audiovisual authors wishing to assert their paternity
rights are denied the opportunity under contract. Performers’ paternity and integrity rights
should be subject to similar sets of exceptions and circumstances of application as relate to
authors in S.79 - 83 of the CDPA.
As authors have painfully discovered to their cost, the provision of S.87 of the CDPA
permitting paternity and integrity rights to be waived has wholly undermined the intrinsic
value of their moral rights. However, the fact that British authors have been made to suffer
the consequences of S.87 since 1988 should not constitute a precedent. Compulsory
waivers of performers’ moral rights should be made inadmissible, and an equivalent
amendment should be made to UK copyright law to the benefit of authors at the earliest
possible opportunity.”
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Pennant Roberts (DPRS) discusses performers moral rights in audiovisual works in the
following terms :
Because performers have little real control over which excerpts of ‘takes’ of their film
performances are included in the finished product, they are not party to what shall be
considered as the definitive version of the film. It becomes all the more imperative therefore
that the definitive version is regarded as a constant, to guard against further distortions of
their performance. Films have historically included the use of doubles - either body doubles
for action sequences of various kinds, or voice doubles where the performers own voice is
deemed unsuitable for whatever reason. This ‘doubling’ process is usually designed to
enhance the basic performance, although occasionally it may be unsuccessful. Since any
‘doubling’ will have the appearance of being part of the actors’ own performance, any such
scenes should not be included in the finished film without the foreknowledge and agreement
of the performer.
Summary
As regard performers, union collective agreements appear as one of the best solutions to the problems.
The conclusion of such collective agreements which can tackle the practical problems encountered by
performers should therefore be supported (at least at national level). The implementation of WPPT is a
good occasion to deal with the moral rights protection of performers.
2. The relationship between authors’ moral rights regulation and
performers’ moral rights regulation
When asked about the relation of moral rights protection of authors, on the one hand, and
performers, on the other hand, the answers varied considerably. Photographers (Pyramide),
authors of audiovisual works (AIDAA), certain authors’ collecting societies (SABAM, SGAE,
SIAE) and phonogram producers emphasized the pre-eminent role of authors’ moral rights
protection. IFPI said that performers’ moral rights protection should be restricted to the level
afforded in the WIPO Performers and Phonograms Treaty. Other representatives of authors
found no need to differentiate between the moral rights protection of authors and performers.
Performers themselves did not see any reason to differentiate between authors and performers
moral rights protection and noted that at the international level this also has been now
established. Moreover, FIA noted that performers’ images are perhaps even more
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vulnerable and potentially subject to abuse than the works of authors.
3. Distinction between the regulation of moral rights during the
production period of the work, on the one hand, and after completion of
the work, on the other hand
Because of certain problems relating to the relation of the author’s right of disclosure or
divulgation of the work and moral rights protection, in particular in countries where the right of
disclosure is considered as an economic right, the questionnaire enquired the opinion of the
interested parties in this respect and the answered received varied to some extent.
Photographers (Pyramide) made an eloquent connection between the authors right of
disclosure and protection of moral prerogatives before the completion of the work by stating
that
[b]oth in the analogous and digital environment, PYRAMIDE EUROPE finds it important to
make a distinction between the period of time in which a work is produced and completed,
and the period of time after completion.
During the period prior to completion of the work, the authors should be sole master and
have an absolute monopoly over their creation, without any exception. Therefore, the moral
right should include the right to divulge the work. An undivulged work should not be
liable for seizure.
The issue becomes even more acute in the digital environment, as the author might only
want to release a digital creation after some processes of digital protection (deposit to
ensure proof of paternity, watermarking, encryption, or any other protective act).
In respect of the principle that the moral right entails the right to divulge the work,
PYRAMIDE EUROPE proposes to consider as the final version of a work, the version that
the author makes available to the public. Once the work leaves the intimacy of the
author’s studio –with the author’s approval – and is revealed to the world, it can be
considered a final version.
The authors of audiovisual works brought forward the advantages of the French law in which
the exercise of moral rights with respect to audiovisual works is restricted during the production
period and only possible with respect to the completed audiovisual work and even then by the
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director, in the first place. According to DPRS
As argued previously, there can be no moral rights protection during the production period
since moral rights only relate to the published work itself. Without doubt the French system
containing the legal imperative that a definitive version must be agreed jointly between
director and producer should serve as the model for European and international best
practice.
According to FIA
Moral rights surely ought to apply to the fixation of a performance, whether it is subsequently
published or not. The level of protection should be the same, as the mere act of fixation
potentially exposes a performance to illegal use. We therefore do not believe that the
question of production, editing, etc. is relevant in this context.
Several other groups did not see any need to differentiate between the production period and
the completed work mainly because this distinction did not have relevance in their field.
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5. Conclusions
The rights holders organizations stressed that digital technology enables potential new
infringements of the integrity of works and performances but, as such, has no impact on moral
rights protection. It was sometimes pointed out that digital technology helps to safeguard the
moral rights of authors by enhancing the quality of works and by enabling to protect the integrity
of works by technical means. By allowing a more generous use of space, digital technology
also contributes to the respect of author’s rights of attribution.
With respect to the need of the European Community to harmonize moral rights protection the
overall majority did not regard it as necessary. Those who did, often associated it with the need
to further harmonize economic rights, in particular with respect to status of employed authors.
According to Pennant Roberts (DPRS)
Unsatisfactory levels of circulation of European audiovisual works throughout the Internal
Market are of grievous concern to us all. Whatever the major barriers to trade - intolerance
of diverse cultures, poorly developed marketing structures, the dominant position and
influence of audiovisual industries from elsewhere, etc. - the absence of harmonisation of
moral rights provisions can by comparison hardly be allocated a high priority. However, to
recall the terminology of clause 6bis of Berne, authors and performers rights are
INDEPENDENT of economic rights, and therefore do not and cannot require justification in
purely economic terms.
It is incontrovertible that rightsowners suffer prejudice in an uneven fashion throughout the
EU - that for instance the work of French and German film directors is less well protected in
the United Kingdom than in their own countries by virtue of the fact that British directors’
moral rights are unrespected in the UK. Whatever the claims to the contrary, there is
absolutely no evidence that stronger moral rights protection systems existing elsewhere
have had any adverse effect on the circulation of goods and services. As far as UK
audiovisual authors are concerned, harmonisation of moral rights protection throughout the
EU should be achieved at the earliest practicable opportunity.
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According to Pyramide Europe
First of all, PYRAMIDE EUROPE notes that illegal reproductions, infringing both economic
(absence of authorisation) and moral rights (no mention of name, alteration, ...) have
become a transboundary, international problem. This is largely due to the digital circulation
and transportation of images (Internet, etc.).
The authors we represent are increasingly confronted with illegal reproductions, made
available to the public in all countries of the European Union. The pirates responsible for the
illegal reproduction are to be divided into two groups :
- either they are located in a third country, non-member of the E.U., with no or lesser
author’s rights protection,
- or they are located in a member state of the E.U., cleverly making use of the voids and
exceptions of one national legislation and playing them off against the other legislations.
Furthermore, we note a shift in economic activity in our sector towards zones where
legislation is laxer, and where illegal reproduction badly sanctioned by law. It is indeed
a fact that regulations regarding moral rights are less strict in some member states than in
others; users and certain publishers increasingly use differences in national law to the
detriment of the author’s income.
International Federation of Phonogram Producer’s Organizations (IFPI) also emphasized the
effects of piracy on the proliferation of low quality copies of protected works in the market. IFPI
did not, however, regard that this would have adverse impact on the Common Market but
rather a negative impact on the rights of all rights holders concerned.
Journalists are also of the opinion that the current divergencies in moral rights protection within
the European Community has adverse effect on the internal market. According to EFJ
Publishing houses who aim to produce e.g. magazines to cover the European market set up
their publishing houses in the UK, and sign on UK authors demanding that they transfer all
their rights including the moral rights. The articles are then translated into other European
languages, and these and any accompanying photographs are then reused in other EU
member states.
This situation distorts competition among European publishing houses, broadcasters and
producers.
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It also puts enormous pressure on freelances, who have an even weaker position than the
smallest business enterprises of Europe. Freelances have great difficulties proving that
written or unwritten agreements between big publishing houses exist on how to pressure
freelances into signing over all their economic and moral authors' rights. The employers of
the media industry are taking advantage of their dominant position against freelances.
EFJ further claims that divergent protection of journalists within the Common Market has
already resulted in the UK being an "offshore moral rights-free zone", and has for some time
caused an unequal playing field in the European Community. EFJ also alleges that many
authors in countries that have proper protection of moral rights make it a condition for licensing
their works that they cannot be used in the UK and Ireland (because of lack of protection of
moral rights in these countries).
Swedish Journalists’ Union has run into problems with respect to the re-use of their articles and
photographs by UK press agencies such as Reuters. There is a local branch agreement
between the local Journalists’ Association on the one hand and the newspaper publishers and
pictorial agency on the other hand, covering the exchange of material between different
newspapers belonging to the same consortium. In this branch agreement there is a particular
provision guaranteeing the safeguard of respect of journalists and photographers moral
prerogatives and, moreover, the newspapers and pictorial agency also undertake to remind any
further third parties of the necessity to respect authors moral prerogatives. However, the
journalists are concerned about the fact that with respect to UK situated news or pictorial
agencies the enforcement of any moral rights based claims is impossible because of the lack of
protection for rights of journalists reporting current events.
Because of the serious danger posed by the inexistent protection for journalists moral
prerogatives under UK law the Swedish Journalist’s Union is currently considering of changing
the branch agreement to the effect that it would forbid any exchange or sale of material to UK
based companies.
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The relatively extensive survey of the opinions of different interested parties in various sectors of copyright
related industries has made it apparent that even those who in principle may have favored strengthening
of moral rights protection within the European Community have difficulties in coming up with concrete
examples for cases where the divergencies in protection of moral rights in the Member States would have
affected the circulation of goods and services within the European Community.
Although, the current situation with respect to the lack of protection of news journalists under UK law does
raise serious concerns also from the point of view of the Internal Market if it leads to the situation in which
journalists in continental European countries forbid the use of their material in the UK because of the
impossibility to protect their moral rights in the UK.
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IV. Influence of digital technologies on moral rights
When considering the impact of new technologies, in particular digital technologies on the creation,
production and exploitation of protected works, we have to ask ourselves several questions. First of all,
what does digital technology bring with it which would be over and above of what existing technologies
have made possible. Once identified, we should analyze these issues to find out their relevance in terms
of copyright protection, and in this case, moral rights protection in particular.
1. Digitization of protected works
Digital technologies make it possible to transform and manipulate works, to modify and alter
them in infinite ways. Digital technologies make it possible to remove works from their original
context and place them into another setting in such a manner that it is impossible to detect the
change. Digital technologies allow to combine different works and to create completely new
works out of them either by preserving some of the elements of original works or by transfusing
them entirely into the new work.
All this is possible only under the condition that the work is not technically protected against
manipulation, alteration, displacement or other potentially harmful act for the rights holder.
Morevover, whenever discussing the effects of digital technology on our ways of exploiting
protected works we should not forget the most encompassing change: the global and nonterritorial
use of works.
2. Effects of digital technology upon moral rights protection
Technology as such is neutral and has no impact on legal sphere. Rights are technology
neutral and violations of moral rights are in no way different with digital technologies than with
analog ones. This means that conceptually, in terms of a given statutory copyright regime,
infringements of moral rights are determined in a similar way irrespective of the technological
way these infringements might have been performed.
In the following we shall examine how the new ways of producing and disseminating protected
works in the digital environment affect the traditional notions of copyright protection: authorship
and work, and in particular, we shall ask how these effects, in turn, might affect the protection
and enforcement of moral rights. As the basis of our analysis we shall take the internationally
harmonized protection of moral rights as provided in the article 6bis of the Berne Convention.
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Notion of authorship
As has been already established digital technology as such has no impact on author’s rights or
copyright protection as such. It has, however, accentuated the trends that have been on-going
ever since the beginning of the 20th century. First with photography and then with
cinematography, and later with computer technology, the system of copyright protection has,
with some struggling, adjusted to the changing ways of creating and producing protected
works. The adjustment of the system has asked for conceptual rethinking and, as in case of
computer technology, political choices.743
With digital technology the changes brought within the system of copyright protection have
reached yet another level. The way of creating protected works has changed to an extent that it
has set the traditional notion of authorship, as embodied in copyright legislation under
considerable strain. Today, a major part of protected works are created by collective effort and
at different stages. Audiovisual production and new media production rely solely on results of
collective effort. It is no longer possible to designate a single or maybe two co-authors who
could be considered as ‘authors’ of the work. With economic rights the issue of collective work
process may be solved contractually but with moral rights it becomes a more complex
issue.744
It is no longer possible to pin-point a single individual who would somehow be responsible of
the final form of the work, and even harder to claim that the work could somehow be regarded
as ‘the emanation’ of a personality of a single individual as the traditional doctrine of author’s
rights protection would presuppose in determining the ownership of moral rights in a given
work.745
Notion of a protected work
Apart with the changing notion of creative work process, and consequently, that of authorship,
we are also confronted with the changing notion of a protected work. Ever since
cinematography, works combining pre-existing and new works from different genres have
posed difficulties for the copyright system. Today, with interactive works created with digital
technology, it is no longer possible to distinguish individual works in, for example a network
multimedia production in which the user may consult and combine works at different levels and
maybe even from different parts of world in real time.
The multifaceted nature of digital works sets the traditional idea of moral rights protection into
question. When it is no longer possible to tell where one work ends and a new one begins,
even less so who has created what part of the work, it is, of course, and even more difficult to
designate the person who could exercise moral rights with respect to the integrity of the work
as a whole.746 It goes, however, without saying that the right of attribution remains intact also
in the context of multifaceted works: everybody who has participated in the creation of the work
should be entitled to have their names mentioned in connection with the work.
743 Salokannel, Marjut, Film authorship in the Changing Audiovisual Environment, in Of Authors and
Origins (ed. Sherman, B. and Strowel, A.), Clarendon Press 1994, p. 58 ss.
744 Lea, Gary Moral Right and the Internet, in Perspectives on Intellectual Property Rights, p. 95 ss.
745 Salokannel, (1997), p. 35 ff.
746 Lea, p. 97
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Global use of works
Global digital networks have made it possible to create open works which may be modified and
re-created constantly and simultaneously from all parts of the world. We have different net
games which players may play in real time everywhere in the world, and in some cases, also
change the form of the game when playing it. In this kind of a setting the whole concept of
moral rights protection seems anachronistic.
Even if we want to maintain a certain level of moral rights protection the global nature of
creative process and use of works has to be taken into account of.
When works are created and communicated through a global network we are immediately
confronted with the fact that only globally harmonized minimum standards of copyright
protection may provide answers for the future. This is equally true for economic and moral
rights protection, and for both aspects of protection the international standards are set in the
Berne Convention and the WIPO Copyright Treaty and WIPO Phonograms and Performances
Treaty respectively. It seems obvious that any legislative attempts for harmonizing moral rights
protection within the European Community should also take as the basis the principles set out
in these internationally agreed-upon treaties.
Digital technology as a way of safeguarding moral rights
Digital technology not only sets the current notions of moral rights protection under question
but it may also help to safeguard some aspects relating to protecting moral rights of authors
and performers.
Identification of works
Moral rights protection has sometimes been mentioned in connection with identifying the origin
of a work, as a tool to authenticate the work. Superficially, it might seem so if we regard the
name of the author as a means to identify the work. However, in a commercial exploitation
environment, such as Internet, authentication refers to the ability to identify the origin of the
work, which in most cases is the commercial or other origin of the work. For identifying the
commercial origin of the work there is a long established intellectual property right, that is the
trademark.
Quaedvlieg has, when commenting this discussion, stated that authenticity concern is a "more
specifically commercial manifestation of the moral rights". Authentication is similar to a
trademark because it would serve as a guarantee for "works produced under the authorship of
a single undertaking which is accountable for the authenticity of the work".747 Moreover, EEC
trademark law protects the trademark holder when changes have been made to the goods and
re-commercialised under the trademark without the consent of its owner. In this case, there is
no exhaustion.
The best and most effective way to ensure the authentication of a work is digital technology
itself. Different technological identification systems have already been established at the
747A. QUAEDVLIEG, ibid., p. 227.
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international level. For example, we have already or will have in the near future, a standardized
code for literary material (ISBN number), for phonograms (ISRC number) and for audiovisual
material (ISAN number). We also have various more hybrid coding and identifying methods,
such as Digital Object Identifier (DOI), watermarking, digital signature,…)
Even if the digital identification systems of works were not conceived with the aim of protecting
moral rights, but rather for managing rights, they may nonetheless have such an effect.748
Identification techniques allow works to be tattooed visibly or invisibly and thus to be
authenticated, and tracked when reproduced illegally. Marking can actually allow the tracking
of borrowed pieces of works which if re-used, can amount to a violation of the right of integrity.
In this connection it should be kept in mind that a non-disclosed work may not be marked
without the author's consent.749
Digital technology as protecting the integrity of works
Technical protection method against modification of works are an important way of
safeguarding the integrity of works today. In light of today’s technology encryption seems like
the most effective way of safeguarding the integrity of the work. Digital signature also allows
for the verification of any transformation of the work in the course of utilization. Encryption and
digital signature make thus possible authentication of both the author and/or work and of the
work's content. In this way they could be regarded as protecting the rights of integrity and
attribution.
Identification systems can also help the authors prove that their works have been distorted. For
example, if works included in databases, have been modified without their author’s consent in
such a way that the modification would infringe upon their moral rights, providing works with a
digital identfication would provide authors with an element of proof when trying to remove the
modified versions of their works from the database.
It must be emphasized that the technical protection methods cannot replace moral rights
because their role is different. Their function may be seen as complementary as they may
provide the rights holders some aid in tracking and proving infringements of moral rights.
748 A. DIETZ, Authenticity of authorship and work, General report, ALAI 1996, p. 171.
749F. POLLAUD-DULLIAN, France, Authenticity of authorship and work, ALAI 1996, p. 211.
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Impact of digital technology on the protection of performers’ moral prerogatives
With respect to protecting performers moral prerogatives digital technology may pose even
more problems than for authors’ rights. Different ways of digitally manipulating performers'
interpretations (such as sampling, warping and morphing) make it possible to modify their
images and set them into completely new contexts without their knowledge. Because of the
risks posed upon performers with respect to unauthorized use of their image or identity, it may
be that traditional moral rights protection can not always provide sufficient protection against
this kind of use, in particular if the exercise of moral rights is waived beforehand.
It could be conceived that protecting performers against un-authorized use of their image could
also be achieved through legislation outside moral rights, such as a modified version of the
statutory protection of right of publicity in various states in the U.S. This would mean that
performer’s permission would always be necessary if their identity or image is used outside the
original context and the right could not be waived beforehand by contract. FIA and Finnish
musicians have favored this kind of protection in interviews.
Do moral rights have an impact on digitization ?
Moral rights may also have an impact on the multimedia environment. As producers wish to
modify works to adapt them to the new digital environment (for instance modify the size of a
work, or its color, add the work into an electronic database together with other types of
works…), moral rights, such as the right of integrity, can hinder the exploitation of works.750
As a matter of fact, there are two important problems which can be also seen as disadvantages
of moral rights in the producers' eyes. These issues are not new but as has been introduced
earlier, computer technology has enhanced them considerably.
Firstly, the right of integrity can be a source of trouble because in some systems, like Belgium,
France and Greece, the author can object to any mutilation or change of his work without
having to prove a prejudice.751 Secondly, in most legal systems, the author can always invoke
the nullity of his consent even if he has alienated his moral rights. Thus a compromise, an
adaptation or a balance between the author's or performer's moral interests and the interests
of the author's contracting party and users' interests has to be found. It should also be kept in
mind that the right of integrity can be affected by the assignment that the author has made of
his or her right of adaptation.752
From the point of view of the French law allowing limited waivers with respect to the exercise of
moral rights would already be an adjustment. This would mean only partial waivers limited to
specific cases. Although, it should be kept in mind that in practice limited waivers are accepted
also in France. In any event, the ultimate basis for any regulation with respect to the right of
integrity should be article 6bis of the Berne Convention.
750 See e.g. A. LUCAS (1998), p. 243. A lot of companies raise criticisms toward the integrity right in particular,
because it can be a barrier to the economic exploitation of works.
751 For Lucas, there must be a judicial control of moral rights, because all rights can be abused. In
France, a majority of courts and of the doctrine is against the absolute character of moral rights. See A.
LUCAS (1998), n° 489, p. 246.
752 A. LUCAS (1998), p. 243 ff.
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In the legal literature it has also been suggested753 that a subtle balance between authors'
interests and users' interests should be striven for. This would mean that the author could only
object to transformations dictated by users' desires or tastes but could not object to
modifications dictated by technological, financial or circumstantial conditions. This solution is
of easy application, flexible, practical and applicable to digital as well as analogue uses of
works. It also comes close to the notion of abuse or misuse of rights.
In this third scheme, criteria close to the American "fair use" could be used to remedy to the
absolute character of the integrity right and thus find the correct balance between the conflicting
interests of authors/performers and users. These criteria could be used for multimedia works as
well as for works on analogue media.
The following criteria for moral rights protection for the new century has been proposed in the
legal literature:
- the nature and intensity of modifications and their irreversible or reversible character;
- the consequences on the author's professional life and on the economic exploitation of
the work.754
- the extent of efforts taken by the user of the work to communicate the modification
- the extent to which the author is identifiable in the copyrighted work, as well as the
extent to which the invoking of the right of integrity will interfere with a similar interest held by
co-authors or other interested co-contributors, if any
- the extent to which the invoking of the right of integrity will interfere with the legitimate
expectations of an employer or commissioning party having decisive influence on the final
result of the work. 755
These factors could be taken into consideration, in the first instance, by courts or other
instances when solving moral rights conflicts. To introduce them into legislation seems
conceivable only at a certain specific case. This has already been done in many national laws
with respect to introducing special moral rights protection adapted to the specific needs of a
given category of works, such as computer programs, architectural works, films.
3. Conclusion
It is obvious for everyone that new technologies have had a profound influence on the ways
protected works are created, produced and exploited. However, the international system for
copyright protection as embodied in the Berne Convention and in the WIPO Treaties provides
us with a well-functioning framework for adjusting national and regional copyright laws to the
demands of the new technologies. This is equally true for moral and economic rights of
authors and performers.
753 See A. STROWEL et J.P. TRIAILLE, (1997), n° 586.
T. HEIDE, (1997), A. LUCAS (1998), A. DIETZ (1994), The artist’s right of intergity, IIC, vol. 25, p.177.
754 See A.STROWEL et J.P. TRIAILLE, (1997), n° 587, p. 451.
755 See T. HEIDE, (1997), p. 54 ff. See also A. DIETZ, Authenticity of authorship and work, General
report, ALAI, 1996, p. 175.
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V. Existing differences in moral rights protection in the Member
States
(?) : means that there is a controversy about the meaning of the law
A. CHARACTERISTICS OF MORAL RIGHTS
1.Duration
AUTHOR :
Author's death : France and Italy (right of retract), Netherlands (unless he designated a heir),
Spain (rights of retract, access and of modification)
60 years after death : Spain (right not to publish)
70 years after death : Austria, Belgium, Germany, Greece, Ireland756, Luxembourg,
Netherlands757, Nordic countries, Spain (for disclosure), United Kingdom758.
Perpetual : France and Italy (except right of retract expires with author), Portugal, Spain (only
for paternity and integrity)
PERFORMER :
20 years after end of performance : Spain
Life or 25 years after performance if it is later : Germany
50 years after death : Netherlands (if person designated in will), Portugal (from first day of year
following performance)
The other statutes do not specify a particular limit, but generally stipulate that after death,
rights are exercised by heirs. This implies that the duration should be the duration afforded for
economic rights, which is 50 years since the harmonisation of economic rights by the term
Directive.
2. Alienability/waivers
Non transferable between living persons : Austria, Belgium, France, Germany, Greece, Italy,
Luxembourg, Netherlands, Nordic countries, Spain
Non waivable : Austria, Spain
Transferable between living persons : Ireland, United Kingdom
Global waiver prohibited : Belgium
756 If new project is enacted. N.B. 20 years after death for false attribution.
757 If heir is designated in will.
758 Except for right against false attribution : 20 years after death.
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Partial waiver allowed : Belgium, France, Luxembourg, Netherlands, Nordic countries
Waivers possible in certain cases : Greece, United Kingdom (all kinds of waivers almost
possible)
Waiver ex ante prohibited : France
Waivers ex ante allowed: Netherlands
Waiver ex post allowed : France, Germany
Writing required : Belgium (?), France, Greece, Netherlands, United Kingdom
If transfer of adaptation right, action possible against modifications violating honour or
reputation : Belgium, Italy, Netherlands
Ghost-writer's possibility to reveal his identity : France, Germany, Luxembourg, Netherlands
Collecting society can exercise moral rights : Belgium, Austria (in sofar as necessitated by
exercise of economic rights), Germany
Employer owns moral rights: Netherlands (?), United Kingdom
B. TYPES OF RIGHTS
1.Right of disclosure
Not expressly stated in Act : Austria, Italy, Nordic countries, Portugal
Does not exist : Luxembourg, Ireland, Netherlands, United Kingdom
Economic publication right : Austria, United Kingdom
Right to decide whether and how the work is disclosed : Austria (and by whom), France,
Germany (and to communicate publicly or describe the content of the work), Greece (and
where), Italy, Spain
Right to decide when to disclose : Belgium, Italy, Greece
Right not to disclose : Belgium, France, Portugal, Spain
Right of disclosure on modifications of a previously disclosed work : Germany, Netherlands
2.Right of paternity
Right to claim authorship (or to be named, to publish under his name) :
Austria, Belgium, France (to have name and quality respected), Germany, Greece (in sofar as
possible), Italy, Netherlands, Portugal, Spain, United Kingdom
Right to decide if a designation must be affixed and which : Austria, Germany, Ireland
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Right to object to false attributions : Belgium, France (?), Germany, Ireland, Italy, Netherlands,
Spain, United Kingdom (and also if work is being falsely represented as being an adaptation of
work)
Right to object to publication if author is not named unless it is unreasonable to object:
Netherlands
Right to prevent someone to use same name to publish : Portugal
Right to be named according to the practice : Nordic countries
Right to choose a pseudonymor remain anonymous : Austria, Belgium, France, Germany,
Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal (only to remain anonymous), Spain,
United Kingdom
Rebuttable presumption of authorship : Belgium (only valid towards third parties), France,
Germany, Greece, Luxembourg, Portugal
Obligation to mention source : Germany, Ireland
Right to claim authorship even if work was not completed : Italy
Right to request not to benamed on uncompleted work completed by second author : Italy
Right to be mentioned onderived works : Italy
Right need to be asserted : United Kingdom
3.Right of integrity
Right to object to distortion, mutilation, modification or other derogatory act without proof of
prejudice :Belgium, France, Greece
Right to object to distortion, mutilation, modification or other derogatory act if prejudicial :
Germany,Italy, Belgium (when work is changed of its context), Luxembourg, Netherlands,
Nordic countries, Portugal, Spain, United Kingdom
Right to object to any modifications which alter the essence of the work unless unreasonable :
Netherlands
Right to object to destruction : Belgium, Portugal
Right only to object to seriously harming modifications if author allowed modifications : Austria
Author who has accepted modifications cannot prevent them :Italy
Right of respect due even if use is free : Austria, Germany (and even if use is private),
Netherlands, Portugal (do not say free butlegal)
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4.Right to modify or adapt
Right to prevent adaptation (...or adapter must respect authors' rightsor consent of author is
required) : Austria, Belgium, France('the spirit of the work'), Germany, Greece, Italy,
Luxembourg, Netherlands
Right of author to make modifications : Netherlands (in good faith in accordance with rules of
social conduct, similar to right of retract), Portugal (if not prejudicial to work - it is a moral right),
Spain (moral right also and must respect rights of third parties while modifying)
No right of modification if work is declared of cultural interest : Spain
No independent right of adaptation : Nordic countries
Modifications by others are allowed if author cannot object to them in good faith : Germany
Translations, extracts orchanges of key are allowed if work's use requires it : Germany
Right for adapter or translator to be named : Italy, United Kingdom
5. Right to access
Does not exist: Austria, Denmark, Ireland, Italy, Luxembourg, Portugal, Sweden, United
Kingdom
Right to access : France, Belgium (only to exercise economic rights and in reasonable
measure), Spain (to exercise all rights), Finland
Right to access to reproduce or adapt only if necessary and non prejudicial to owner's
interests : Germany, Greece, Finland and Spain ("if causes the least inconvenience to owner")
Indemnification if damages : Spain
Only right to access rare or unique copy : Spain, Finland (only to works of fine art)
No right to remove the work : Spain
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6.Right of retract
Right does not exist : Austria, Belgium, Ireland, Luxembourg, Netherlands, Nordic countries,
United Kingdom
Right recognised in : France, Germany, Greece, Italy, Portugal, Spain
Right to modify the work for moral reasons : France
Right toput an end toexploitation of work for moral reasons : France, Germany, Greece (only
for literary and scientific works), Italy (serious moral reasons), Portugal (valid moral reasons),
Spain
Obligation to indemnify : France, Germany, Italy, Portugal
Obligation to offer possibility to exploit the work to same contracting party : France
Obligation to offer the contracting party the same or reasonable conditions of exploitation :
France, Germany,Greece
-In priority : France, Greece
Right of retract cannot be exercised by authors of pre-existing works : Germany
Obligation to declare expressly the intention of retract :Italy
C. TYPE OF WORKS
1. Literary
Disclosure and paternity :
Right of editor of dictionaries, encyclopaedia and didactic works to have the work completed
by another if indicates that work is completed or modified by another person : Portugal
Integrity :
Editor of journal has the right to modify journalist's article if necessitated by nature or purpose
of journal : Italy
Authors of texts for movies can exploit their contributions separately if not prejudicial to
producer's rights : Italy
Modification :
Right to correct before publication : Portugal, Spain (if indispensable, does not alter work's
purpose or nature)
Exceptions to rights of paternity and integrity : United Kingdom
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2. Dramatic
Integrity :
Main performers and conductors can be replaced for serious reasons : Italy
No possibility to object to modifications if not prejudicial to structure of work, does not reduce
the dramatic or spectacular interest and does not prejudice rehearsal or representation
scheduling : Portugal
Specific prohibition to make cuts, changes etc. in theatrical representations : Spain
Right to retract if part of dramatic work is suppressed and meaning is compromised or
misrepresented : Portugal
Exceptions to rights of paternity and integrity : United Kingdom
3. Musical
Paternity :
No right to be named for performer if audio program without speech or if customs allows name
to be mentioned : Portugal
Integrity :
Right to modify if requested by technical necessities of recording : Italy
Modifications of phonograms allowed if not prejudicial : Portugal
Specific prohibition to make cuts, alterations etc. : Spain
Authors of musical works for movies can exploit their contribution separately if not prejudicial
to producer's rights : Italy
Authors of musical collaboration work can exploit their contribution separately if not prejudicial
to exploitation of joint work : Luxembourg
Authors of dramatico-musical works, of musical compositions with words, of choreographic
works and pantomimes cannot use their contribution in conjunction with other musical works
(except in certain cases) : Italy
Exceptions to rights of paternity and integrity : United Kingdom
4. Plastic
Disclosure :
Alienation amounts to disclosure, i.e. author can only object to exhibition prejudicial to honour
or reputation : Spain
Paternity :
Adaptations and copies of graphic art works may not be credited in a way that creates the
impression that it is the original : Austria
Right to be named on copies of artistic works (e.g. photographs representing works) : United
Kingdom
Right of photographer to be named on copies of his works in scientific or didactic works : Italy
No right of paternity for industrial designs : Germany (only if works of applied arts made in
more than one exemplary ) : United Kingdom
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Integrity :
Respect due even if use is private for graphic and plastic art works : Austria
Modifications of photographs are allowed if required by there production mechanism :
Germany
Right of integrity for industrial designs : United Kingdom
Right to act against publication or sale of modified work if it is presented as if it had not been
modified : Ireland
Right to object to any modification of work of plastic art incorporated in architectural work :
Portugal
Rights of integrity and paternity cover public exhibition : United Kingdom
Exceptions to rights of paternity and integrity : United Kingdom
5. Architectural
Paternity :
Right to be identified on building in a manner appropriately visible: United Kingdom
Right to demand that name be omitted on building if owner has modified it : Portugal, United
Kingdom
Integrity :
No right to object to detrimental modifications : United Kingdom
No right to object to modifications rendered necessary in the course of realisation or after
completion : Italy
Right of modification for author if state decides that building has important artistic character :
Italy
Destruction :
No right to object to destruction : Portugal
6. Software
Disclosure :
- General rules apply : France, Germany, Greece, Italy, Netherlands, Spain
- No disclosure right :Belgium (controversy : no right or partial waiver)
- Undisclosed works cannot be attached : Netherlands
Paternity:
- General rules apply : Belgium, France, Germany, Greece, Italy, Netherlands, Spain
- No right for computer programs, computer generated works & type faces : United Kingdom
Integrity :
- General rules : Greece, Italy, Netherlands, Spain
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- Right to object to prejudicial acts only : Belgium, France
- No right for computer programs & computer generated works : United Kingdom
All rights alienable and waivable : Belgium
Moral rights belong to employer : Portugal (?)
7. Audio-visual
General :
Audio-visual work is a work of collaboration : Austria, Belgium, France, Netherlands, Portugal,
Spain
Audio-visual work is not a work of collaboration : Luxembourg
Moral rights can only exercised when work is completed : Spain
Co-authors can use contribution in another genre : France, Netherlands (if not detrimental to
audio-visual work)
Right to use contribution separately if not prejudicial to normal exploitation of audio-visual work
: Spain
Disclosure :
Work can only be disclosed after approval of final version by director : Greece
Work can be disclosed when agreement between producer and director : Belgium, France
(and possibly with agreement of co-authors)
Work is completed when agreement between authorand producer : Portugal, Spain (but
director and producer can let authors appreciate if work is complete)
Producer (exclusively) decides when work can be disclosed : Netherlands
Right of director to review final cut before releasing it to distributors : Germany,
If co-author does not want to complete his contribution, he cannot object that it is used :
Belgium, France
If co-author does not want to complete his contribution, he cannot object to his replacement :
Spain
Paternity :
Co-authors have right to be named : Austria
Right can only be exercised after agreement between producer and director : Belgium
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Right to be mentioned at the usual place, with capacity and nature of contribution :
Netherlands
Right to require that contribution is shown : Netherlands
Right to object to be named unless unreasonable : Netherlands
Right to be named if uncompleted contribution : Netherlands
Right to be named as producer : Austria
Right of paternity only for directors : United Kingdom
Integrity :
Right can only be exercised after agreement between producer and director : Belgium,
Authorisation of co-authors needed for modifications: Austria, France (and of director and
producer and director and possibly co-authors for modifications of last version), Portugal
(written consent of co-authors needed)
If movie is modified author can have his name removed : Italy
Right to object only to gross distortions : Germany (during realisation and exploitation)
Right to object to modifications only belong to directors and co-directors : Greece
Right to object to transformations, modifications and translations by producer with authors'
consent : Italy
Right for producer to modify work in the extent necessary : Italy, Luxembourg (if
'indispensable' and not prejudicial to honour or reputation)
Right to object to publication of modified work is prejudicial to honour or reputation : Italy
Right of integrity only for directors : United Kingdom
Arbitration procedure if no agreement on modifications between authors and producer: Italy
Presumption to have waived right to object to modifications not prejudicial to honour or
reputation : Netherlands
Modifications require the consent of authors who decided its completion : Spain
Master copy can never be destroyed : France, Portugal, Spain
Right to ask for destruction of modified version in extremely serious cases : Italy
BBC can alter works if contrary to good taste or decency (...) : United Kingdom
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Retract :
Right cannot be exercised : Germany
8. Collaboration
General :
Authors have moral rights unless otherwise provided : Greece
Each author can use his contribution separately : Austria(divisibleworks), France (if not
prejudicial to exploitation of the work of collaboration), Spain (if not prejudicial to normal
exploitation of the work of collaboration), United Kingdom
Each author can act against violations separately (exercise their rights individually):
Austria(indivisibleworks), Belgium, France, Italy, Luxembourg, Netherlands (unless otherwise
stated), Portugal
Authors cannot use their contributions in other works of collaboration : Luxembourg
Disclosure :
All authors must agree to disclose the work/right must be exercised jointly : France, Germany,
Italy, Spain
Authors can act against other authors to disclose the work : Belgium, France, Germany (if
refusal without good reasons), Italy, Portugal
Authors can act against other authors to have it completed by another person : Belgium
Paternity :
Authors can act against other authors to omit a name : Belgium
If work is disclosed under name of only one author, others are presumed to have assigned
rights to author in whose name it is published : Portugal
Right to object to false attribution recognised to co-authors : United Kingdom
Integrity :
Agreement between authors needed for modifications : Austria(divisible and indivisible works),
Germany, Italy
Authors can act against other authors to modify the work : Portugal
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9. Collective
Does not exist : Belgium, Germany
General :
Authors' rights belong to legal person : Luxembourg (exclusively), Portugal, Spain (unless
otherwise agreed)
Person who directs work is presumed author, without prejudice to copyright in each work
separately : Netherlands
Legal person has power to act against violations of moral rights : France
Authors can act with legal person or separately : France
Authors can exercise moral rights when work is not yet completed : France
Authors can be replaced if do not want to complete contribution : France
Authors can exploit Contributions separately : Greece
If individual contributions can be exploited separately, rules of joint works apply :
Portugal
Paternity :
Right to be named according customs (except for contributions in journals or reviews) : Italy
No right : United Kingdom
10. Composite
Does not exist : Germany
General :
Authors of new work must respect moral rights of authors of pre-existing work(s) : Belgium,
Portugal
Authors can exploit contributions separately : Greece
Right of author of pre-existing work to exercise moral rights in new work is his work is
concerned : Spain
D.PERFORMERS
Right to be named : Austria, Belgium, France, Germany (only for audio-visual works,
inconformity with practice), Greece, Italy (only for performers having leading parts in dramatic,
literary or musical works), Netherlands, Portugal, Spain
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Right to object to inexact attribution : Belgium, Netherlands
Right to object to acts prejudicial to honour or reputation: Belgium, Italy, Netherlands, Spain
Right of respect(full) : France, Greece, Portugal
Right to object to modification if reasonable :Netherlands
Performers' rights cannot interfere with author's rights :France, Greece, Netherlands, Spain,
Belgium (right of integrity cannot violate author's rights)
Same protection as authors : Nordic countries except Finland (minimum level as required by
EU)
No moral rights : Luxembourg, United Kingdom, Ireland
224
Existing differences in moral rights protection in National legislation with
respect to Common Market
Generally speaking it may be said that the moral rights protection within the European
Community ranges from the protectionist French legislation to the UK legislation which
provides only a minimum amount of protection for moral rights of authors to mention the two
extremes.
The greatest differences in regulation concern mainly the UK legislation and possibly the Irish
one, depending on the final form of the new law. The generally low level of moral rights
protection in the UK may be summarized to the following features:
! the necessity to assert the right of attribution under UK law,
! complete waivability of moral rights under UK law,
! protection of performers moral prerogatives
! lack of protection of moral (and economic) rights in employment relations.
Self-employed persons seemed to encounter problems with respect to safeguarding their
rights through-out the European Community, in particular in the field of press and
photography.
The fact that the UK law does not protect news journalists gives rise to a potential negative
impact with respect to the Common Market. There seems to be a real possibility that
journalists in the continental European countries would forbid the use of their material in the
UK because of the impossibility to protect their moral rights in the UK. The Swedish
Journalists’ Union is currently considering such prohibition in their negotiations with the
newspaper publishers and the same concerns were brought up also by other Journalists
Associations.
However, in spite of the significant differences in regulation between the Member States of the
European Community and in particular the difference between the UK law and the regulation
in Continental Europe, there seems to be no concrete evidence that this has so far resulted to
adversely impact on the Internal Market.
225
VI. Conclusion : no need for general harmonisation at E.U. level
Some lessons from the comparative study
The comparison of the national laws makes it clear that moral rights for authors are
recognised in all countries, even if the level of protection is lower in some countries, for
instance in the UK and Ireland.
The situation of performers' moral rights differs more from one contry to the other.
Point of view of interested parties
The analysis of the answers to the questionnaire sent to some representative organisations
(see list in annexe) indicates that most interested parties are very cautious about any initiative
which would be taken in order to harmonise the level protection of moral rights in Europe.
This attitude seems motivated by the fear that a compromise on the moral right issue, if
reached at Community level, would jeopardise the high level of protection already enjoyed in
some countries. Indeed, the harmonisation process could end up for instance with the adoption
of waivable moral rights.
Different rights holders organisations have pointed out that energy should preferably be
devoted to other, more important problems.
No need of general harmonisation at E.U. level
At this point it would thus seem that there is no need to harmonize the moral right protection
in the European Union, especially in the case of authors.
No decisive evidence has been found that the existing differences do affect the functioning of
the internal market.
However, the Community should play a role at international level by insisting that other
countries provide a form of protection of moral rights.
Support for the drafting of codes of practices
226
Some organisations stressed that collective agreements (for instance in the field of performers'
rights) have had a very positive impact. Therefore, we think that the Community should find
ways to induce the conclusion, either at national or Community level, of such agreements
dealing with the definition of "good practices" in the field of moral rights. These agreements
could provide for general guidelines to be followed by all parties.
Probably, the main advantage of this form of regulation of the practices is that specific solutions
can be drafted for the different sectors, as important differences exist between the various
sectors where authors and performers are working.
Sector specific problems: the press
The current problems, in particular in the sector of press, relate more to the protection of
journalists and status of authorship in employment relations, not to moral rights protection
as such. Possibility of total waivers with respect to the exercise of moral rights seems to
constitute a problem for UK authors and performers.
For free-lance photographers, and probably also for journalists, the extremely unequal bargaining
power vis-à-vis the often transnational media conglomerates makes it in practice impossible for them
to safeguard their moral or economic rights. This is a problem for self-employed authors everywhere in
the European Community, not only in the UK and Ireland.
However, there is no evidence that any of the above-mentioned problems would affect the
circulation of protected works and offering of services within the Common Market. In fact,
there is no clear evidence which would support the argument that the UK journalists and
authors moral rights would in practice be subject to more infringing practices than the rights
of authors and performers in the rest of the European Union.
227
Annexes
1. Bibliography
2. Professional Organizations contacted and answers received
3. Positions of the National Governments on moral rights
4. Summaries of the legislation and case law (country by country)
228
Annexe 1.
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229
II. COUNTRIES
AUSTRIA
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230
la loi du 30 juin 1994’, in F. GOTZEN, (ed)., Auteursrecht van ouod naar nieuw, Le
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FRANCE
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232
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GERMANY
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IRELAND
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235
LUXEMBOURG
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236
THE NORDIC COUNTRIES
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PORTUGAL
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Intellectual property laws of Europe, G. Metaxas-Maranghidis, 1995.
- L.F. REBELLO, ‘The New Portuguese Legislation on Copyright’, RIDA, 1986, n°129, p.3-39.
- L.F. REBELLO, 'Lettre du Portugal', Le Droit d'Auteur, 1987, p.154-162.
- L.F. REBELLO, ‘Copyright in Portugal’, RIDA April 1996, p. 205-237.
- J.A. VELOSO, 'Portugal' in H.D.J. JONGEN - A.P. MEIJBOOM, Copyright software protection
in the European Community, Deventer-Boston, Kluwer, 1993.
SPAIN
- H. BAYLOS CORROZA, Tratado de derecho industrial, Segunda edicion, Civitas, Madrid,
1993.
237
- A. & G. BERCOVITZ, 'Spain', in M.B. NIMMER.- P.E. GELLER, International copyright law and
practice, New York, Matthew Bender, October 1996.
- F. BONDIA ROMAN, 'Spain', in H.D.J JONGEN - A.P. MEIJBOOM, Copyright software
protection in the European Community, Deventer-Boston, Kluwer, 1993.
- F. BONDIA ROMAN, Propriedad intelectual, su significado en la sociedad de la informacion,
Madrid Trivium, 1988.
- A. DELGADO, ‘The New Spanish law on Intellectual Property’, RIDA, 1988, n°3, p. 199.
- E. DIAZ-BASTIEN & P. PERNAN DOMECQ, Intellectual Property laws of Europe, G.
Metaxas-Maranghidis, Stanbrook and Hooper, Brussels, John Wiley and sons, 1995, p. 374.
- A. DIETZ, El Derecho de autor en Espana y Portugal, 1992.
- C. DOUTRELEPONT, Le droit moral de l’auteur et le droit communautaire, Bruylant,
Bruxelles, 1997.
- D. ESPIN CANOVAS, ‘Le droit moral de l’auteur d’oeuvres plastiques dans le système de
droit civil’, in ALAI Congress, The moral right of the author, 1993, p.368.
- J. M. MOLINA, ‘De l’évolution du droit moral de l’auteur dans la législation espagnole’, in
ALAI Congress, The moral right of the author, 1993, p. 195.
- S. MÜLLER, ‘SPANIEN,’ In MÖHRING, SCHULZE, ULMER, ZWEIGERT, (ed.) Quellen des
Urheberrechts, v. Spanien, Frankfurt am Main, Metzner, Tome IV, March 1997.
- F. POMBO, in C. VAN RIJ, Moral rights, reports presented at the meeting of the
International Association of the Entertainment lawyers MIDEM, Cannes, MAKLU Publishers,
Apeldoorn Netherlands, Antwerpen, Belgium, 1995, P. 143 - 157.
- E. THOMSON, 'Spain', in S.M. STEWART, International copyright and neighbouring rights,
Second ed., 1989, Butterworths, p. 365.
- C.R. VIDE, 'Le droit d'auteur en Espagne: ses limites et les atteintes qui lui sont portées', Le
Droit d’Auteur, 1989, p. 18-26.
238
UNITED KINGDOM
- W.R. CORNISH, 'United Kingdom', in NIMMER, M.B.- GELLER, P.E., International copyright
law and practice, New York, Matthew Bender, October 1996.
- W. R. CORNISH, Intellectual Property, London, Sweet and Maxwell, 1996.
- D. DE FREITAS, 'Letter from the UK', Copyright, January 1990, p. 31-49.
- C. DOUTRELEPONT, Le droit moral de l’auteur et le droit communautaire, Bruylant,
Bruxelles, 1997.
- G. DWORKIN, ‘The Moral Right of the Author, Moral rights and the Common Law
Countries’, in The moral right of the author, ALAI Antwerp Congress 1993, p. 81.
- G. DWORKIN, ‘United Kingdom’, in S.M. STEWART, International copyright and
neighbouring rights, 1989.
- P. GOLDSTEIN, Adaptation rights and moral rights in the United Kingdom, the United States
and the Federal Republic of Germany, IIC, N°1/1983, p. 43.
- M. FLINT, ‘Moral rights in the theatre and some comments on moral rights and audio-visual
works’ in The Moral right of the author, ALAI Antwerp Congress, 1993, p. 469.
- M. LUCKMAN, 'Moral rights in the United Kingdom, a short review and discussion of
problems', Copyright World, Issue Five, July 1989, p. 26.
- C. J. MILLARD, 'United Kingdom' in H.D.J. JONGEN - A.P. MEIJBOOM, Copyright software
protection in the European Community, Deventer-Boston, Kluwer, 1993.
- J. PHILLIPS, R. DURIE, I. KARET, Whale on Copyright, 5th ed., London, Sweet and
Maxwell, 1997.
- E.P. SKONE JAMES, Copinger and Skone James on Copyright, London, Sweet and
Maxwell, 1999.
- J.A.L. STERLING, World Copyright Law, 1998.
- A. STROWEL, Droit d’auteur et copyright : Divergences et convergences, Bruxelles,
Bruylant, 1993.
- J. TURTON & M. ALLEN, ‘United Kingdom’, in C. VAN RIJ, ed., Moral rights, reports
presented at the meeting of the International Association of the Entertainment lawyers
MIDEM, 1995, Cannes, MAKLU Publishers, Apeldoorn Netherlands, Antwerpen, Belgium.
239
Annexe 2.
Professional organizations contacted and answers received
Questionnaire has been sent to following organizations:
Pyramide answer received
UK Association of Journalists no answer
European Federation of Journalists answer received
European Federation of Newspaper Publishers answer received
European Federation of Publishers answer received
FERA no answer
AIDAA answer of SACD
FIAPF no answer
EBU no answer
IFPI answer received
FIA answer received
FIM answer received
AEPO no answer
European Writers’ Congress answer received
European Visual Artists answer received
GESAC SPA, SGAE, Hellenic Society for the
protection of intellectual property
Eurocinema no answer
Answers have also been received from
Swedish Association of Journalists, Finnish Association of Journalists, Directors’ and
Producers’ Society DPRS
In addition the following persons have been interviewed
Katri Sipilä, Director, Mechanization Rights, Finnish Composer’s International Copyright
Bureau
Tom Rivers, Rivers Consultancy
Ahti Väntänen, legal advisor, Finnish Musician’s Union
Kai Nordberg, Chairman, Pyramide-Europe
240
Annexe 3.
Positions of the National Governments on moral rights
These are the views of officials working for the government of each Member State. Their name is
mentioned if they so agreed.
Three questions have been asked to each country's government officials :
- What is the position of the various organisations : do they have problems with moral rights ? do
they think moral rights are protective enough or not ? do they want harmonisation or not ?
- In the opinion of the government, do moral rights have an impact on the internal market, in other
words do you think they hinder the free circulation of works within the EC ?
- What is the position of your government : should moral rights be harmonised or not ?
AUSTRIA — Opinion of Mr. G. Auer
There are no authors' complaints on moral rights.
There are no cases showing evidence that moral rights are a barrier to the free circulation of works.
It is not possible yet to give an answer to the position of Austria on harmonisation, because the new
Minister has not yet given his opinion on authors' rights in general. Austria wil have to implement the
two new directives (on "droit de suite" and authors' rights in the information society) when it is due,
and it might perhaps make additional amendments to the general Copyright Act. However, it is not
possible to state if the Austrian government will want to change its moral rights regime.
Mr. Auer can only respond caustiously yes to the third quesiton, because he does not know yet the
posistion of the Minister on a possible harmonisation of moral rights.
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BELGIUM
The Belgian government does not receive complaints from the various organisations protecting
authors and authors' rights. The lobbies are more active in the framework of the Directive proposal on
authors' rights in the information society. These organisations speak very little of moral rights, a fortiori
the industries' lobbies.
The priority of the Belgian government is not in authors' rights and a fortiori not in moral rights. There
is no intention in modifying the Belgian law to lower or level up the protection of moral rights.
FRANCE
The overall opinion of authors' organisations is that moral rights should not be modified. France has
asked that in the Directive proposal on authors' right in the information society, it was specified that
the rules relating to the right of distribution and to exhaustion do not violate the moral rights
provisions. It seems there are not specific problems in this regard.
There is no conflict between producers and authors of audiovisual works as regards moral rights. The
negotiation between contracting parties is generally clear. There is no professional group which is
asking to modify moral rights. This is reflected in the negotiations at the WIPO. The overall belief of
the government is that moral rights seem to be well respected. The question of moral rights is a
question of regulation between contracting partners.
There is a large consensus in France not to touch moral rights and not to lower the protection. Thus it
is not the position of the government that France would appreciate the idea of harmonisation moral
rights because of the risk of lowering the protection.
GERMANY
There are no complaints from authors.
It is difficult to give an answer, but there is no evidence of moral rights hindering the functioning of the
internal market.
In the view of officials, Germany is not really in favour of harmonising moral rights. The German
governement is not planning to modify its moral rights legislation.
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GREECE — Mrs. Kallinikou, Copyright organisation
Moral rights have always been highly protected in Greece. There is a lot of doctrine and case law on
the point. Indeed, Greek authors often use their moral rights in courts to have their economic rights
respected (for instance use of the right of publication and the right of attribution). There are no lobby
to modify moral rights nor any complaint that moral rights are not protected enough in Greece.
Provisions on moral rights do not hinder the functioning of the internal market.
The Greek government has no position on the issue of harmonisation of moral rights. However, in
Mrs. Kallinikou's personal opinion, it would better to harmonise them, because it is necessary in the
information society.
IRELAND
Not yet known. The answer has not reach us.
ITALY
There are no complaints from authors or author's organisations as regards the national protection of
moral rights.
The Italian government is in favour of a harmonisation because some countries have a lower
protection than in Italy. The Commission has competence to harmonise but the Italian government
reckons that this harmonisation encounters a material difficulty, being the contrasting views of other
Member States which are not in favour of harmonising moral rights.
At the level of the national experience, the government is not aware of problems of free circulation of
works and they should not be any at the national as well as at the Community level.
LUXEMBOURG — Official position of Luxembourg : Mr. Allegrazza, Conseiller du Gouvernement
Première classe, Department of Economy
Authors have no complaints on the legal situation concerning moral rights in the Luxembourg.
There is no problem of barriers to the free circulation of works in Mr. Allegrazza’s opinion. If they were,
243
authors and associations would have mentioned it to the government. Everything has been said in
Berne.
The Commission should not harmonise. First it is not in its competences but in the competences of
the Member states at the national level. Second, as there is no problem of barriers to the free
circulation of works, the Commission cannot harmonise.
There is a bill introduced by the government to allow the free alienation of moral rights. The Council of
state's opinion is awaited on the subject. But the government fears that it will be negative, as the
Council is influenced by French tradition on the subject. However, authors do not lobby against the
new project. This bill is discussed on February 17 in the House. It is mandatory to take the Council of
state opinion but it is not mandatory to follow it. However, if the House votes against the Council's
opinion, the Council is obliged to approve a second vote. Thus the House would have to revote a
modified bill within 3 months. This procedure is feared because of the first negative opinion given by
the Council.
THE NETHERLANDS — Mr. E. Arkenbout
There is no clear position from the various organisations on the issue of moral rights. Most if not all
moral rights problems are dealt with in collective contracts (such as those between journalists and
publishers). There are numerous other issues that deserve the attention of the legislator, especially
the EC legislator, such as contract law, collective management and dispute settlement. Preferably the
European Commission should dedicate all of its time and attention to these issues.
There are no indications yet that the free circulation of goods and services poses any problems
related to moral rights. The Dutch government has not heard of serious problems in this respect. As
far as the functioning of the internal market is concerned, it is hard to believe that such divergence
may constitute an obstacle.
The position of the Netherlands, although not official, is that there is no need to harmonise moral
rights. The Dutch government has other priorities than moral rights. There are no serious problems
concerning moral rights, as least not to the extent that courts cannot handle. There is also no
justification for any harmonisation measures since there can be no relevance to the internal market.
Mr. Arkenbout does not think that the Commission has any competence in this regard. In his opinion,
such a proposal would be meaningless and a time-consuming discussion. If any discussion on moral
rights is started, the negative consequences and impact of invoking such rights should be taken into
consideration.
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NORDIC COUNTRIES
It is the position of the Nordic countries not to harmonise the moral rights. They are also not planning
to revise their law in respect of moral rights.
The point of view of the Nordic governments on the eventual need for harmonizing moral rights
protection within the European Community may be summarized in the words of Jukka Liedes
(special governmental advisor, Finland) :
"Never during my 25 years in copyright related work no one has come to me claiming that moral
rights protection would be somehow insufficient. Moreover, at the European level, there is
absolutely no evidence that the existing differences between the moral rights provisions in national
laws of Members States would have, in any way, affected the internal market. Neither the Finnish
government nor other Nordic governments would support any attempts of harmonising moral rights
legislation in the European Union."
PORTUGAL
Portugal has no project to modify its Copyright Legislation nor moral rights in particular.
Moral rights are generally well respected in Portugal; there are no complaints from authors nor any
associations (authors' or producers) to change moral rights legislation.
Officials are not aware of any problems of free circulation of works caused by moral rights.
Portuguese officials do not see a need to harmoniuse moral rights because there are no problems
concerning moral rights in Portugal.
SPAIN
This is not the official answer but views of officials of the government. The official answer should
reach us next week (March 6-10).
There are no complaints of authors on the moral rights regime in Spain. The Spanish copyright Act is
rather protective. There are some complaints (however not officially received by the government) in
the way the courts apply moral rights legislation but not about the legislation itself (for instance, the
245
delay of courts to issue their judgements). Moral rights are not a controversed question.
The second question will be answered officially.
The question of harmonisation is not important. Officials have not heard from an intention or a desire
from the government to harmonise moral rights.
Offical answer of the Spanish government from Mr. Borja Adsuara Varela (Chef de cabinet du
Secrétaire de la Culture Espagnole).
Substantially, the official answer is as follows :
1. The government has not received demands from authors to modify the Spanish legislation
concerning moral rights.
2. The differences of legislation between Member states do not seem to create serious problems
for the common market.
3. The harmonisation of moral rights is not a priority, even if it remains an important question.
Questions relating to collective management of IPR has the government's preference at the
European level.
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UNITED KINGDOM — The views of officials of the British Government
For the moment, the UK looks at performers' moral rights implementation of WPPT treaty. The UK is
not planning to change the authors' moral rights.
Diverse organisations have diverse views on moral rights : either they are opposed to them or they
defend them. However, no one opposes them in their entirety.
It seems that authors are not entirely happy the way it works with authors' moral rights in the UK.
There is however no evidence that there are problems of authors' moral rights in practice. In practice,
even if there were no moral rights at all, one of the officials thinks that they would be respected
anyways. She gives the example of the right of attribution : authors are always cited in the credits of
movies.
Nobody ever mentioned anything on the possibility of moral rights having effect on the internal market.
Officials are not aware that there are any problems or obstacles to the free circulation of works in the
EC.
Moral rights should not be harmonised because they have no economic impact nor dimension,
because by their very nature they are only "moral". It would thus not be appropriate to harmonise
moral rights and it would be hard to justify a need for harmonising them. On top of that, it is not the
desire of the UK, in one of the official’s opinion, to harmonise moral rights.
CONCLUSION
Except the United Kingdom which has heard of complaints with the British moral rights system
(however no official complaint has ever been made to the government), no government has received
any requests or complaints of authors and authors' organisations to change moral rights. There is no
lobbying to change moral rights.
With no exception, no government believes that moral rights have an impact on the internal market
and more specifically on the free circulation of works inside the EC.
Except the Italian government and Mrs. Kallinikou personally (Greece) who are in favour of
harmonisation because the protection of moral rights is much lower in other Member states than in
theirs, no governments sees a need for harmonising moral rights.
247
Annexe 4.
Summaries of the legislation and case law (country by country)
These are the views of officials working for the government of each Member State. Their name is
mentioned if they so agreed.
AUSTRIA
Legislation is monistic. No rights of disclosure, retract nor access. Right of attribution is simple (claim
authorship, remain anonymous or pseudonymous). Right of integrity is not very detailed either. Moral
rights are not transferable nor waivable. There seems to be no exception to this rule.
From the scarce Austrian case law, it seems that generally courts recognise violations quite
frequently and it does not appear that courts make a balance of interests. Therefore, it seems to be
rather protective of authors. When one analyses the case law in the light of specific problems of free
circulation of works, the rather protective tendency could in a speculative manner have an impact on
the internal market. To give an example based on the cases above mentioned, if a picture was
changed from oblong format to upright format in Germany and was legal there, if the work is imported
in Austria, the author could easily get a court ruling blocking the entry of such modified works in
Austria. However, this does not prevent the original work from circulating freely in the Community.
BELGIUM
Legislation is dualistic. The right of disclosure is very detailed and very protective. The right of
paternity is simple (right to claim authorship, to object to false attribution as and remain anonymous
or pseudonymous). The right of integrity is absolute : no proof of prejudice is needed to act against
violations. There is a right to access but not a right to retract. Moral rights are not transferable but
partial waivers are allowed.
Case law relating to attribution is generally protective of authors, except for architectural works. As
regards the right of integrity, courts are also generous for authors, as the legislation does not require
the proof of a prejudice. To take the case of the comics book confusing the consumers as to the
attribution, it seems that in similar cases, in the event the confusing work was produced outside
Belgium and was imported in Belgium, courts would block its entry in Belgium. In like manner, if an
article was legally reproduced without the footnotes in another country (or the Belgian author could
not object to it in that country), the Belgian author could nevertheless bar its importation in Belgium.
However the cases discussed seem to be exclusively of a purely national nature.
248
FRANCE
Legislation is dualistic. The right of disclosure is quite detailed and is absolute. The right of attribution
is described in similar terms as in Belgium. The right of integrity is absolute. The right of retract is
very detailed and the law stipulates very stringent obligations for its exercise. There is a right to
access. Moral rights are non transferable and partial waivers are allowed under very strict conditions.
Case law is extensive in France. The right of disclosure being absolute, courts are very protective of
authors. The importation of a work which would not have been disclosed or would have been
disclosed on a medium but not on another would be easily be blocked in France. As to the attribution
right, French courts are stricter for architectural works than Belgian for instance but the right of
attribution can be limited for works of applied arts. There is much to say of the right of integrity cases.
First of all, destruction is prohibited. Secondly, case law is very protective of authors in general. For
sculptures and architectural works, courts are more willing to make a balance of interests. Therefore,
an author could easily block the importation of a modified work except maybe for sculptures and
architectural works (which are anyway less easy to transport…).
As to the right of retract, it is interesting to note that there is no decision in favour of the author. It
seems in general, that authors misuse their right of retract. Last but not least, several cases have
demonstrated that a foreign contract allowing alienability of moral rights will have no effect in France.
This question (which relates more to the applicability of private international law rules) can have a
major impact on the internal market.
GERMANY
Legislation is monistic. The right of disclosure is stated in quite simple terms. The right of attribution is
very similar to Belgium legislation. The author only has the right to object to modifications which are
prejudicial. Like in France, the exercise of the right of retract is subject to many strict obligations.
There is a right to access the work. Moral rights are not transferable but waivers are allowed under
certain conditions.
Case law in general, is much less protective than in France for instance. German courts use the
balance of rights for almost each right. The best cases illustrating this balance of interests are
architectural works cases (especially for the attribution and integrity rights of architects). Concerning
the right of attribution, German courts are more protective for other types of works and find for
authors in most cases. As regards the right of integrity, case law is not very favourable to authors. For
instance, destruction is not considered as a mutilation. The use of music for an advert is not a
violation of the integrity right. These few examples show the very contrasting differences between
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France and Germany in this regard. These differences can be analysed in light of the potential
effects on the internal market. Certain works legally modified in Germany could not be sold in
France. Conversely, an author could not bar the importation of his modified work in Germany if
German law applies and the court decides there is no violation of the author's moral rights.
GREECE
Legislation seems to be dualistic in view of the wording of art. 1. The right of disclosure is stated in
very simple terms. The right of attribution seems less protective, as it gives only the right to be named
"insofar as possible". The right of integrity is like in France stated in very general terms and a
prejudice must not be invoked. The right of retract only applies to scientific and literary works. There
is a right to access. Alienability is prohibited and waivers are allowed under certain conditions.
Greek case law does not reveal any effect on the internal market. Authors generally use their moral
rights to have their economic rights respected. One thing to note is that even if the statute provides
for an absolute right of integrity, in one case concerning an architectural work, the court used the
balance of interest and found against the architect.
IRELAND
Moral rights are not recognised in Ireland and thus there is no case law. However a new statute
should be voted soon which resembles very closely the British CDPA.
ITALY
Legislation is dualistic in Italy. The right of disclosure is not recognised but most commentators agree
that it is implicitly comprised in the legislation. The right of attribution is stated in similar terms as the
previously discussed countries with additionally, specific rules applying to different types of works.
The right of respect is not absolute : the author only has the right to object to prejudicial
modifications. The right of retract is granted under strict conditions and there is no right of access.
Alienability is prohibited but waivers of rights of attribution and respect are possible and terminable at
will.
There is a certain amount of case law in Italy, all of which has not been accessible. The cases show
no effects potential or existent on the internal market. The courts have largely interpreted the notions
of honour and reputation in the case of the right of respect. In the sector of audio-visual works they
even have been as far as not requiring a showing of violation to either one of these notions.
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LUXEMBOURG
Legislation is not clearly dualistic or monistic. There is no moral right of disclosure. The right of
attribution is stated in simple terms and in similar way than other Member States. The exercise of the
right of respect is subject to prejudicial acts. There are no rights to retract nor access the work.
Inalienability is the rule but waivers are possible. As far as we know, there is no case law on moral
rights in Luxembourg.
THE NETHERLANDS
Legislation is clearly dualistic in the Netherlands. There is no right of disclosure but there is an
equivalent in economic rights. The right of attribution is completed by a right to object to false
attributions. The right of respect is to object in two situations : when it is reasonable and when it
violates the reputation or honour of the author. There is no right to retract but the right of modification
has the same effects in practice. There is no right to access the work. NO waivers nor alienations
are permitted although waivers of rights of attribution and integrity are technically possible (except a
waiver of the right to object to modifications violating honour or reputation.
Case law is rather extensive in the Netherlands. Examples from right of respect cases show that
potentially effects on the internal market could be possible (see in particular the Beckett case
compared with opposite decision in the same case in France). In the field of plastic and visual arts,
courts are rather protective of authors while in architectural cases, courts draw a balance between
authors' and owners' interests.
THE NORDIC COUNTRIES
Legislation is dualistic. The right of disclosure does not exist but can be said to be included in the
author's exclusive right to make the work available to the public. The name of the author must be
mentioned according to the usual practice in the sector. The author has the right to object to
detrimental treatment of his work. There is no right of retract. The right of access exists in Finland but
not in Denmark nor Sweden. Transfers are not allowed but specific and limited waivers are
nonetheless possible.
There is not much case law in the Nordic countries. It seems that facts situations in these cases
have not had an impact on the internal market.
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PORTUGAL
Legislation seems dualistic but there is no clear indication in the Act. No right of disclosure is directly
recognised; the right of attribution is stated in simple terms with specific additional rules. The right of
respect can be exercised if violations are prejudicial and the Act stipulates specific rules for certain
types of works (authors of functional works and advertisements have a reduced right of respect). The
right of retract is allowed under strict conditions and no access right is recognised. Inalienability and
waivers are prohibited. Waivers can be allowed in certain cases, there are terminable at will.
As far as we have been researching, we are only aware of one case in Portugal, dealing with the
integrity right of a singer. The fact that the "medley CD" could be exported and be admitted in other
countries because the protection of the right of respect is lower, could potentially have an effect on
the circulation of the work in the Community. It would be forbidden to sell it in certain countries while
allowed in others. However, again and as stated above concerning other countries’ case law, this is
only speculative and there is no evidence of any problems in this respect.
SPAIN
There is a controversy as to the dualistic or monistic nature of moral rights in Spain. The right of
disclosure comprises both positive and negative prerogatives. The right of attribution is stated in
generally very similar terms as stated in other European laws. The prejudice is needed to object to
violation of the right of respect. There are more detailed rules for specific sectors (music, theatre) as
regards the right of integrity. The author has a right to retract the work under certain conditions. The
access right is rather large. Transfer is not allowed under Spanish law and rights cannot absolutely
not be waived.
From what we are aware of, case law is not abundant in Spain and it is thus very difficult to draw any
conclusions from the very little amount of cases we have at hand. Nothing on a potential impact on
the internal market can be said on their basis.
UNITED KINGDOM
Legislation is dualistic. There is no right of disclosure but an economic right of publication. The right
of attribution consists of two prerogatives : the right to be identified and te right to oppose false
attributions. The right to be identified necessitates an assertion in writing. In addition, there are
numerous cases in which the right will not apply. The right of integrity is the right to object to any
derogatory treatment detrimental to the author’s honour or reputation. These terms “derogatory
treatment” are to be interpreted very strictly. The right of integrity is equally packed full of exceptions.
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Al moral rights are fully transferable under British law. In addition large waivers are permitted.
Case law arising after the 1988 CDPA is not abundant. The only case which could potentially have an
impact on the free circulation of works within the Union is the George Michael case. However, in such
a speculative situation, it seems reasonable to believe on the basis of the several member states
case law analysed in this study that no or very few courts would have judged differently.