Principles of Copyright Law – Cases and Materials

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II. RIGHTS

RIGHTS

A. MORAL RIGHTS

Article 6bisof the Berne Convention reads as follows:

(1) Independently of the author’s economic rights, and even after the

transfer of the said rights, the author shall have the right to claim

authorship of the work and to object to any distortion, mutilation or

other modification of, or other derogatory action in relation to, the said

work, which would be prejudicial to his honour or reputation.

(2) The rights granted to the author in accordance with the preceding

paragraph shall, after his death, be maintained, at least until the expiry

of the economic rights, and shall be exercisable by the persons or

institutions authorized by the legislation of the country where

protection is claimed. ...

(3) The means of redress for safeguarding the rights granted by this

Article shall be governed by the legislation of the country where

protection is claimed.

Moral rights do not form part of TRIPs (TRIPs, art. 9.1): i.e., Berne members

must extend moral rights to other Berne members, but any failure in this respect

is not covered by TRIPs.

The two major rights referred to in Art. 6bis(1) are commonly known as the right

of paternity or attribution, and the right of integrity.

1. RIGHT OF ATTRIBUTION

The author has the right to have his work attributed. This right is infringed if his

name is omitted.

• Infringement of the attribution right is aggravated if another
  person’s name is substituted for the true author’s name

EXAMPLE:

A photographer (McNeil) was asked to produce an identical copy of a

photograph that he was shown. The second photograph was used with his

authority, but without the authority or knowledge of the first photographer

(Argaez), in advertisements. Authorship was attributed to McNeil. Argaez

successfully sued McNeil for infringement of his moral right of attribution:

Ateliers Tango Argentin Inc. v. Festival d’Espagne et d’Amérique Latine

Inc., (1997) 84 C.P.R. (3d) 56 (Canada: Quebec Superior Court)

En effet, bien que le droit à l’integrité de M. Argaez n’ait pas été violé, sa réputation

n’ayant pas été à proprement parler atteinte par la contrefaçon, son droit à la

reconnaissance de la paternité de son oeuvre hautement originale a néanmoins été

bafoué de façon flagrante et grossière. Au lieu que son nom apparaisse comme

CHAPTER II.