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II. RIGHTS
- MORAL RIGHTS CANNOT BE TRANSFERRED, BUT THEY
MAY BE EXPRESSLY OR IMPLIEDLY WAIVED
Moral rights may, in many jurisdictions, be expressly waived unilaterally or by
agreement. Whether the waiver needs to be in writing or whether it may be
validly made orally, depends on the legislation of the particular country.
A waiver need not be express: it may be implied from the circumstances.
(a) Right of integrity
EXAMPLE:
An engineer designed a telecommunications tower. After the tower was built,
hairline cracks appeared, causing the owner to fear that the tower might
collapse. The owner modified the external structure of the tower to reinforce it.
The engineer sued for breach of both his copyright and moral rights. The Court
decided that the engineer was not the author of the artistic design of the tower
(see Ownership of Rights, below). Even if he had been the author, neither his
copyright nor his moral rights would have been infringed:
John Maryon International Ltd v. New Brunswick Telephone Co. Ltd,
(1982) 141 D.L.R. (3d) 193 (Canada: New Brunswick Court of Appeal)
MR JUSTICE LA FOREST for the Court:
“[T]he engagement for reward of a person to produce material of a nature which is capable of
being the subject of copyright implies a permission of consent or licence in the person making
the engagement to use the material in the manner and for the purpose in which and for which it
was contemplated between the parties that it would be used at the time of the engagement. ...
[T]he payment for sketch plans includes a permission or consent to use those sketch plans for
the purpose for which they were brought into existence, namely, for the purpose of building a
building in substantial accordance with them and for the purpose of preparing any necessary
drawings as part of the task of building the building.” ...
[The engineer] knew that the structure was intended as a major communications tower. It was
located in the heart of Moncton and he knew not only that it had to be safe but to be perceived
by the public to be safe. ... Obviously, if anything went wrong, it had to be repaired and repaired
quickly. Public safety had to be assured without arousing public concern. ... Under these
circumstances it seems to me a term must be implied in the contract permitting repairs, involving
alteration to copyright material if need be, to ensure the use of the tower for the purpose for
which it was intended as well as to ensure public safety and to prevent public concern. ...
The [moral right of integrity] would be displaced by the implied term to which I have already
referred. ... [A] necessary distinction ... must be made in the treatment of works of art, such as
architectural works, the function of which is utilitarian as well as artistic. ... The owner of an
architectural structure has the right, in the absence of an agreement to the contrary, to make any
changes to it that seem to him to be desirable in order that he may use the work in accordance
with his own views. He may, therefore, destroy, reconstruct, modify or repair his building. The
architect has only one right - that of requiring that his name appear on the front of the work so
long as the repairs or modifications are slight and the essential conditions of the original work
remain. He also has the right to require that his name be removed if the works done on it mutilate
the work or distort the artistic ideas he wishes to achieve.
