[Cdn-DMCA] Moral Rights

[Jason Young]

>On Fri, 2002-04-05 at 14:32, Chris Brand wrote:
>
>>  I agree. The only thing I'm not sure about is whether I have a moral
>>  right to veto a use of my work that I disagree with.
>
>You don't.  According to the (very informative) Supreme Court of Canada
>case Russell posted recently(*), "The integrity of the work is infringed
>only if the work is modified to the prejudice of the honour or
>reputation of the author."
>
>So it's not mere "disagreement" that triggers the moral rights.

Yes and no. Mere disagreement for the sake of being disagreeable will 
not be enough to claim infringement, but the appreciation of 
prejudice to the author's honour or reputation is largely a 
subjective test and should be, inasmuch as is reasonably possible, 
left to the creator. Snow v. Eaton (it's not available on the web - 
if you're interested, I'll send it to you).

The Court in Theberge (Russell's case) found that the artist 
(Theberge) was claiming an infringement of economic rights in the 
guise of a moral right and rejected the argument. Theberge had 
authorized the reproduction of his work by a third party and the 
gallery was simply changing the fixation of the work (from paper to 
canvas), not reproducing it and therefore not diluting the integrity 
of the work, as Theberge claimed. You would think that changing the 
fixation would be an infringement of moral rights, but this action is 
specificially exempted in s. 28(2)(1)(a) of the Act, which reads:

...a change in... the physical structure containing a work... shall 
not, by that act alone, constitute a distortion, mutilation or other 
modification of the work.

In essence, as the owners of the copyright in the posters, the 
gallery was authorized under the Act to do what they did and Theberge 
had no cause to complain.

This is a confusing case and you'll note that of the seven judges who 
sat, three of them dissented in the final decision. This 
interpretation will likely evolve in future.
-- 
Jason Young
jyoung at lexinformatica.org
613.531.3442
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