See Copyright, Moral Rights, and Subjective Authorial Harm: CIPIL Evening Seminar.
A talk by Law Professor David Simon (SSRN). From his Abstract. More analysis below.
Abstract: Copyright law grants authors special non-economic “moral rights” to prevent others from using their works in certain ways. In their strongest “solipsistic” form, moral rights give the author the absolute power to prevent any use that offends her sensibilities. While the solipsistic view of moral rights exists in only a few countries, the sentiment underlying it is pervasive in moral rights theory: an author’s claims are superior to all others because only the author knows when harm occurs, regardless of others’ views. In other words, certain uses of works result in the author experiencing harm that no one else can experience and that does not depend on what others think. This Article asks and evaluates the following question: can harm based only on the author’s subjective experience justify solipsistic moral rights?
It argues that the answer is probably not—and that, if supported, solipsistic moral rights will be tightly limited. Drawing on literature in science fiction and philosophy, this Article. contends that the best justification for the monastic view is also the most implausible: authors have moral rights only when another’s use causes the author to experience an inconsistency between her perceived use of the work and her memories of creating the work. In short, an author’s rights are contingent on her ability to remember creating her work. This is the best justification because the author’s memories of creating the work satisfy all the requirements for authorial harm: it identifies discrete psychological states that are tied directly and only to the author’s acts of creation, independent of others’ perceptions. It is the least plausible, however, because it conditions important rights on one’s ability to remember past actions. Despite its seeming implausibility, the author’s memories of creation provide the best support for grounding monastic moral rights. As a consequence, the case for monastic moral rights, if it can be made, is tightly limited to cases where another’s use of an author’s work causes a negative psychological response directly tied to the author’s memories of creating the work.
See also his paper “Copyright, Moral Rights, and the Social Self,” Yale Journal of Law & the Humanities, Vol. 34 (2024). Abstract:
Moral rights—non-economic rights that enable authors to control how their copyrighted work is divulged, attributed, modified, and withdrawn—are grounded on the Investment Theory: when an author creates a work, she invests part of her self in it. Because the work is an extension of the author’s “self,” special rights—not merely economic rights—are needed to protect it. Although intuitive, the rationale raises two central questions any moral rights theorist must address: how can an author invest her “self” in a work, and how might the law protect this investment? Moral rights scholars have not provided a satisfactory answer to the first question, making the second one difficult to address. This Article argues that an idea from social psychology might help answer the first question and shape how we respond to the second. Rather than some philosophical or abstract conception of the self, the authorial self the law protects is the social one: the self created and maintained through social interaction.
On this account, moral rights are tools to present and manage aspects of this social self. They are limited “rights of impression management.” This framing enables two analytical moves. First, it precisifies what moral rights protect (the social self as externalized in the work) and the harm they protect against (potential inconsistencies in that self). Second, it provides a framework for discussing how moral rights ought to protect the self from harm, raising the ultimate questions of whether and to what extent the Investment Theory is justified.
See also Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised at Paris on July 24, 1971 and amended on Sept. 28, 1979, art. 6bis, 1161 U.N.T.S. 3 (commonly cited as the Paris Act 1971) (note: The TRIPS Agreement incorporates most substantive Berne provisions but explicitly excludes Article 6bis moral rights obligations for WTO members who are not Berne parties), art. 6bis:
Article 6bis
Moral Rights:
1. To claim authorship; to object to certain modifications and other derogatory actions;
2. After the author’s death; 3. Means of redress
(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 honor or reputation.
This entire presentation and argument shows the utter incoherence of modern legal “intellectual property” theory. I have long condemned the most harmful forms of IP, patent and copyright, as well as the more well known forms, trademark and trade secret, as well as the reputation rights of defamation law. And there are others, including an aspect of copyright called moral rights: inalienable rights to attribution and to the “integrity” of the work, whatever that means. Just listen to the confused pseudophilosophical musings of this guy. It’s almost unbearable to hear him jabber on in this legal positivist way, anchored to nothing, going from metaphor to amateur Total Recall thought experiments. Rambling on about how one’s “memories” of having “created” something is what “matters” to him, and how violating that “thing”s integrity “harms” him, blah blah blah.
The main theories of IP are Lockean—based on Lockean creationism—and utilitarian; a third, more obscure, even more inscrutable one is the Hegelian “personality” argument which this guy, wittingly or not, is partly relying on. [continue reading…]
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