Moral rights of copyright authors are more vulnerable than ever

The internet has made the moral rights of copyright authors more vulnerable than ever. Critically evaluate this statement.

INTRODUCTION

In comparison with legal enforcements and international copyright law, all such issues and limitations of international copyright law was formed in terms of more intangible theory. In recent phenomena global markets are dominated by electronic commerce (e-commerce) in which internet and technology plays a substantial role. Therefore attention from media has been increased towards digital technology and internet in terms of awareness regarding moral rights and copyrights. Digital economies and communication are also not far from it. Therefore one main concern in front of lawyers is that how to tackle rapid emergence of internet, digital media and technology and related issues of copyright. This research paper has been structured to cover the key issues in copyrights and moral rights

This research paper includes most of the issues enlightened for the purpose to provide brief information in terms of their own rights. The main purpose is to present this research paper is to comment on the moral rights of the copyright author's and critically evaluate the statement “The internet has made the moral rights of copyright authors more vulnerable than ever” and this report also cover all such issues of copyright and moral rights.

COPYRIGHT ACT

Particular place of rights are included in copyright and Copyright Act 1968 (Cth) is able to represents all such place of rights under this act and decisions which are applicable to the court, those are able to emerge within specific time period and different range of material also impacted from it.  All such issues have covered sculpture, paintings, drawings, craft works, films, videos, photographs, recording of sounds and material related with textual. Therefore copyrights act is able to preserve all such types of material. Copyright Act is also able to act in case of those people who are using material that does not belong to them. Thus this Act is able to protect favor of original producer and depicts that without permission nobody can use this material. With emergence of new and latest technology number of amendments has been made towards the Copyright Act since 1968.

Three basic principles are developed and on behalf of the Copyright Act they are able to protect intellectual or creative Endeavour, in accordance with stages of copyright and other fields of law.

These are as follows:

  1. First principal is related with “Thou shalt not steal”.
  2. Second principle is related with ownership associated with who formulate or create any concept with use of brain.
  3. Third principle is reward.

In United States of America, first judgment was presented by a panel of the DSB (Dispute Settlement Body) of the WTO (World Trade Organization). Under this report emphasize was laid on suspected violation of the provisions of copyright. All such provisions were covered in the Trade Related Aspects of Intellectual Property as an agreement that is also defined as the TRIPS Agreement). Existence of the international copyright agreement was laid a century before. And regarding this context no dispute has received by a panel of the DSB from its member states because of availability of effective mechanism enforcement in this structure.

Recent amendment was presented by panel of the DSB in their report and that report shows the enhancement in the Section 110(5) of the United States Copyright Act to be in violation of compulsions in accordance with the Agreement of Trade Related Aspects of Intellectual Property (the TRIPS Agreement). Because of their recent amendment in the Copyright Law which was made by the USA and regarding this step USA is appreciative for the purpose to countenance reimbursement or trade sanction towards infringement of the TRIPS Agreement. On behalf of available enforcement mechanism under this ACT and with governing body of the DSB, it is prepared to challenge other nations in terms of their national procedures. Two key trading partners of the world USA and European region have analyzed its importance for the purpose to achieve harmony in emergence of e-commerce and in intellectual property law

The U.S introduced its first Digital Millennium Copyright Act (DMCA) in 1998. This Act was presented in terms of the Uniform Computer Information Transactions Act (UCITA) and the anticipated collections of Information Antipiracy Act (CIAA). On behalf of established Directives on Copyright by the USA, the EU implemented two directives towards E-commerce and Copyright for the purpose to achieve future advancement. And this step was directed towards coordination of intellectual property laws in all around European region. Because of this directive which was adopted by the USA and Europe, the structure of today's digital economy was developed.

DEALING WITH COPYRIGHT

Original person who belongs to particular copyright has authority to give their rights to someone else. Therefore according to the Copyright Act, there is some legal bounding available on behalf of that he or she has to put their sign for the purpose to transfer their rights to someone else. The right is fully centralized with owner and on behalf of that he or she can transfer particular part or full rights to next person. There are also legal enforcements available in terms of license in written manner. Thus both parties are responsible towards their roles and responsibilities in transfer of rights.

There is one limitation between assignment and neither license of copyright; that means neither assignment nor license is able to give authority of rights to other person. We can express this thing by an example that in which place and for how much time that particular material is going to be used. On behalf of license or assignment a person can reproduce a particular product within specific region and for specific time period only and owner is associated with all such rights. Licensed of copyright is dependent upon original owners of copyright by “Collecting Societies”. Craft workers and visual arts come under collecting societies and are able to represent Copyright Agency Limited

MORAL RIGHTS

Description of moral rights can be given in terms of attributes of copyright and all such rights are directly linked to the original owner. The main aim of moral right is to protect the favor of creator who invested their efforts and resources in the process of development of any material. Subjects are associated with subjects those are able to protect work done by original owner or creator. Copyright is important fundamental and this approach governs by common law or by Anglo American. Countries those have implemented moral rights within domestic territory of their country are the rights obtained by directives of international obligations and all such rights seems to be weak in terms of implementations. There are two aspects available and on each aspect emphasize is laid on differences and that reflects the protection of economic rights defined by “common law copyright” and “civil law authors” are able to represent the author in the first place.

Berne Convention is a treaty that is able to represent majority of moral rights and all such rights are directed for the purpose to protect favor of original owner towards their Literary and Artistic Works 1886 at minimum standard with those nations who have signed an agreement under Convection Article 6bis. On behalf of all such directed rights in this Article, author is able to get protection in terms of their economic rights and transfer to second person. In a case if anyone found that who has done some modification, any distortion or any extra added work in previous work then original author has right to claim against all such damages. Owner is associated with their rights before expiry of economic rights and it happens in those countries where according to legislation, after the death of original owner their rights don't cover protection.  

Conception of territoriality in the law of copyright

Certain level of own territorial rules are set up by the law of copyright for the purpose to analyze complexities those are obvious regarding to the cross border availability of works protected by copyright.

Below one quotation is presented for the purpose to summaries this particular system. According to Berne Convention accord there is no international copyright established for the purpose to protect rights of original work but there is availability of set of national copyright laws.

There are various definitions and statements presented for the purpose to summarize the notion of territoriality within the law of copyright. For the purpose to protect copyrights, the related rights were protected on behalf of oldest International Treaty concerned, the Berne Convention: According to this statement authors and original owners have rights to protect their original piece of work everywhere in the world where tangible work done protected under laws of copyright.

There is need to develop some common grounds for the purpose to match the laws which are developed by each and every states. Therefore in the year 1886 some enhancements were presented in terms of minimum standard that is able to protect rights in the Treaty: a floor, but responsibilities are not equal of each member states in this context. With help of one important factor that is ceiling we can concentrate upon the notion of territoriality. And that is associated with one idea and on behalf of that each and every state formulated their law of copyright in different manner in terms of minimum standard or protection. On behalf of copyright law it is clear that author or original owner is able to protect their work done within particular boundary of a region. Thus it also clears that law which is implemented in one particular territory is not enforceable in other region or territory.

Implemented copyright system in each territory has limited scope in terms of its rights and that right is able to represent the original creator or author. Establishment of the national treatment principle laid in widening the scope of territorial rights. And after implementation of this principle as the national of the signatories of the Berne Convection, other member states are also able to gain from these rights in terms of their protection rights. Therefore Article 5(2) is presented to represent the scope of protection and provide equalization to afford to the author for the purpose to protect their rights in effective manner and on behalf of those rights, authors are able to get the claim.

From many years long discussions have been made to clarify the place where claim can be made for protection. Regarding this context some researchers argued that interpretation should be made in terms of the law of the debate and that shows the protection received by person who made claim. On this statement some researchers have stated that interpretation of nation is require to clarify protection rights. In view of most of researchers second point is more related with this context. Thus there is only availability of set of national laws not any particular international law.

If any author or original creator of work wants to expand their market share in overseas market thus territorial is the tool by which an author is able to protect their original piece of work. Therefore on behalf of this, author gets protection when markets are not in structured form. Thus the process looks in well-structured form because it works in effective manner until the unchangeable increase in technologies such as Internet and Information. Thus on behalf of scope of national treatment, creator can survive in overseas territory in terms of protection but suddenly there is some changes that have been seen in terms of complexities for them, who does not cop up with minimum standards of copyright in entire world market. With the mobility of Internet, owner of copyright is able to curtail first problem. Internet has one nature and that is any shuffle can be possible easily on any website. Thus here mobility depicts this nature of Internet website which takes place in very short period of time. This shuffle is possible in anywhere in the world that means in particular one territory or may be in other territory as well. International private law raises this variability through various discussions on it. There is a solution of question and that solution represents the appreciate modes of determinants and implementation of law on any contravention.

Internet has one more nature and that is also associated with this analysis in depth. Internet is able to spread wide information in all around the world and for this copyright also works. Therefore one important factor is also revealed by this feature and that it is related with territory. Therefore one statement was also made by Ginsburg and that is on the behalf of modes of digital media, it is able to connect with rest of the world in terms of transfer of communication of original work done by creator. As a consequence, international copyright measures came into force in considerable manner.

The national treatment becomes enforceable because of Internet. This is international issue that infringing copies are distributing on Internet. Thus, the original authors and owner of copyright are not secure and due to this it is clear that there is need to solve clashes between different systems that have risen because of that. Benefits of protection which may be received by owner vary from one country to another because there is difference in structure of moral rights in comparison with others. That shows the importance of law which can be chosen by author. Thus we can understand the different structure of moral rights in France and the United Kingdom. In case of France there is one factor available in their law and that is expansion of territoriality. This analysis supported by one example and that is Shevill and the European Court of Justice. Consideration was made at very first time in terms of permit ‘forum shopping' by the authors.

COPYRIGHT FOR THE DIGITAL ERA

In last few years many amendments have been made in the law of copyright. It happens because of recently found uncertainty in music industry regarding protection of work done by performer. In other words we can that some fears have been found because of enhancement of electronic devices and those are able to destroy work of original creators. That identify the requirements of measurement tools those are able to provide new direction to copyright law at international and within boundaries of region. At the beginning of the 1996, the WIPO Copyright treaty (WCT) was laid down for the purpose to reshape the digital agenda at international level. On behalf of this treaty obligations were implemented by the US and directed in terms of the Digital Millennium Copyright Act 1998 (DMCA). Various aspects of copyrights and related rights were also enforceable in European region in terms of the European Parliament and Council Directive and all such enforcements were implemented in all 15 member regions from 22 December 2002.  (the Infosoc Directive).

MORAL RIGHTS AND DIGITAL ERA

However in entire discussion some concentration is also laid on moral rights and questions regarding to it. According to Article 2-6 of the Barne Convention, there are no new amendments in this Act which is represented by the WCT. Some negotiations were also made at the same time in terms of the WCT such as introduction of moral rights for the purpose to measure performance of aural performance and those are associated with phonograms and all such negotiations determine by the WIPO Performance and Phonograms Treaty (WPPT). 

On other hand moral rights are not included in DMCA 1998. There is nothing to be mentioned about moral rights in the Infosoc Directive and also member states are also looking to avoid this topic.

In fact internet market is not disfiguring by set of moral rights. But is this really a fact? Later some complexities were also found in case of moral rights of audio-visual creators at international level. Moral and economic rights were dedicated as a conclusion of the WCT and WPPT in the year 1996 for creator of audio and visual material. There were no such agreement made during this time but some specifications were declared that later there is possibility to get some amendments in this. Previous negotiations were reopening at the end of the year 2000. One more time there were complexities occurred in case of moral rights of audio and visual performers? Now issue is related with at what extent right of integrity could be directed because of requirement of film editing for the purpose to display publically. After long time right if integrity and the right to be identified as a performer was implemented under Article 5 by the main committee. And regarding this context specific agreement was presented and under this agreement some statements were developed in terms of editing work, compression, dubbing or formatting and it laid down as right of integrity. No other Article was presented under this Treaty and it shows the survival of the Article on moral rights.

PROBLEMS WITH MORAL RIGHTS

Most of the nations have implemented their structure of moral rights on behalf of Anglo-American tradition. All the nations are following the US made guidelines for their moral rights structure due to various reasons based on economical argument. First reason is that there may be an economical impact or economic misuse of their original creative work done. On behalf of moral rights, author is able to take control on their work and its utilization.The main aim of these moral rights is to protect misuse of original work in any marketplace. Therefore implementation of moral rights shows the conclusion of contract and on behalf of that holder achieves all such rights and on behalf of those rights owner can deal with the work in terms of tangible representation of objects. Moral rights enables to transfers original work in other manner if there is any wish to do so and In terms of characteristics and structure of property they look inconsistent

The second reason is also associated with different forms of historical backgrounds. In the development of Anglo- American tradition there was no such role of historical enhancements of copyright those are associated with moral rights and related associations because natural theories are stanching by author. Statement was presented by US commentator for the purpose to implement some aspects in US copyright law. These aspects are in terms of “droit d' auteur” and the implementation is not an easy task. In any case if Europe follows same structure, which was implemented in U.S, then it is not able to represent rights of author paradigms

According to the U.S viewpoint, these structures were not able to be accepted because the ideal of romantic associations are associated with moral rights. One view which has its worth is that it is able to protect favor of copyright and that is developed on behalf of enhancement in forlorn garrets, laboring extensive and tough over a creative work. Wealth and desire of who is going to hold creative rights are associated with the creativity. And this advantage provides economic benefits that are able to protect work done from damages

In case of copyright there is involvement of author which is necessarily required for the purpose to represent protection as a statement and its rights and also the glimmer of creativity is required to do so. Therefore both the aspects are associated with contribution of authorship.

Third reason shows the embracement of Anglo- American system because it reveals the very low level of originality before the work done by creator for the purpose to protect the original rights with author. Therefore in terms of phrase we can say that “what is worth copying is prime facie worth protecting”. In case when copyright low is able to protect rights in normal ways such as coupons of football pools and directories of telephone exchange. Others are associated with one idea and that is to provide original rights to individual author for the purpose to represent particular author in terms of their work done.

If agreement regarding moral rights develops at international level then there will be availability of one factor that is foreseeable future contract. All such issues are also related with development of internet for trade purposes and have less emphasize on its pronunciation.

MORAL RIGHTS AND ERA OF INFORMATION

Large number of effects are available those put impact on procedure to deal with moral rights. All such effects are responsible to destroy the original creative work in digital era which is available over the Internet. Regarding this context one author has stated his suggestion: that is in particular region of territory where work is done and there should be availability of moral rights in effective manner and all work made available over the Internet in those particular territories. Therefore all authors are able to get protection against their original piece of work and that is protecting by certain set of standards in most effective and protective regime. Thus there is no need to look over the domestic laws for the purpose to protect author's rights.

ANALYSIS OF MORAL RIGHTS IN FRANCE AND UK

Various key differences can be seen in moral rights between France and the United Kingdom. Appearance of moral rights is not possible without implementation of the Copyright Design and Patents Act 1988 (CDPA 1988). But there is a presence of common law for the purpose to find some partial, rectify for litigants.  Article 6 was introduced under the provision Berne Convention of the United Kingdom. This Article laid down the structure of moral rights in the year 1928 and enforceable in 1948. Again in the year 1988 Act, moral rights were also introduced. These rights are able to cover following aspects of author:

  1. Those requiring emphasize before implementation.
  2. Paternity right
  3. Integrity right.

4. Privacy right in private film and photography.

All the above mentioned rights are tangible in nature and can be transfer to another in case of death of original owner. In the Court's view, the objective test is preferred in comparison with using of subjective test for the purpose to analyze the treatment of derogatory. Third party is associated with author as mercy.

According to the French norms, the structure of moral rights gained great importance. French structure of moral rights was introduced in the nineteenth century and it was created through case law. Some amendments have been made in the Act of 1957. Representation of French law stated as “the right of integrity” or the “droit au respect de I'oeuvre”. Case law is there for the purpose to represent the primary importance of the author in the system. There is also an argument presented by court and that is utilization of terminology to determine the particular nature. Therefore it is clear that on behalf of moral right, an author is able to get their respect towards their work done. In France, there is one factor available in the work done by author and that's the flexible nature and this represent by the existence of moral right. This is the reason for increase in the ability of judge on behalf of the increase in the legitimacy. So on behalf of above arguments that structure of moral rights is different in comparison between France and the UK. And this can be clarified on behalf of case of Huston v Turner Entertainment Co. On behalf of this discussion it is clear that this analysis is able to determine home the capability of internet and their basis in terms of International Treaties and territorial borders.

MORAL RIGHTS AND INTERNET

In France and the UK, there is possibility of contravention of moral rights in diffusion of a work which developed on webpage.

DIGITIZATION AND INTEGRITY

There is one fact on behalf of that author's moral rights may be violated and that fact is digitization. It means that if any person tries to convert the original piece of work with help of digital technology and because of that quality of that converted work is not same as original. That happens because of difference in format of computer. Decrease of quality depends upon development of techniques and its structure. For example if any painting developed by an artist is in digital version, that painting will be very effective in terms of color, visualization and in image but copy of that work will not be able to satisfy the requirements of original piece of work. Thus on behalf of these changes, an owner is able to determine original piece of work. There is doubt that in derogatory treatment of work consider by court and it shows the ruination of reputation of owner. That converted in very loss in quality. On other side it means that in this type of cases, the integrity of work is more subjective and has lower integrity as well.

Therefore an owner is able to claim for bad quality because that quality put impact upon his work and he is not ready to accept it. And later there is also one issue associated with it and that is the size of the digital work or copy. According to the UK's viewpoint there is no such role of derogatory treatment if size is reduced as it seems in the catalogue of painting. Therefore in UK, it is improbable to get cure against changes in original work that was passed by digitization. Another case happened in France and there contravention was made because of the name of the represented person and signature of owner at lower piece of drawing. As result author who belongs to France have right to argue against their moral rights because their moral rights may be infringed due to recreation of his work on Internet

There are many reasons associated with that and these works may not be able to fit to screen. Thus there is need to scroll down to get visual effect of that particular work.

THE RIGHT OF DISCLOSURE

There is an emergence of problem because of territorial approach of copyright laws in the domain of moral rights and that problem is the right of disclosure. Broader rights are also categorized by the French code of conduct. UK legislation does not represent the right of disclosure. Therefore it is clear that there is no such pressure on an owner for the purpose to broadcast a work which was already developed. Thus liberty is always associated with in hands of author and he has rights to make available his work either publically or privately. According to French code of conduct the right to make work available depends upon author and vice versa he can simply avoid disclosing his work.

The right of disclosure seems in terms of supreme are restricted. There is declaration made by court in terms of that the right is associated with author and that right is “stay the sole judge of the opportunity of the publication” of that particular work done. And court does not permit disclosure orders. There is no such difference available if work is done by third party. This particular right is able to cover limitation of disclosure and particular process which has been utilized to accomplish the disclosure. On behalf of that, author is able to protect their broadcasting rights in terms of quality and presentation of his work done and for broadcasting any work done on Internet in form of digital manner, there is need of agreement from author's side. Under this discussion necessary characters of the right of disclosure have been clarified under the French law and comparative deficiency from UK law. For the purpose to remain infringed their rights author presenting arguments in front of the French judge within limits of French territory. Where infringing work is reachable there equalize is able to get claim.

THE ECJ JUDGEMENT ON “SHEVILL AND DECISION ON HUSTON”

Second phase of the Shevill decision will be revised on behalf of above discussion. According to second phase of decision it is clear that process of evaluating in particular situation can be destructive and also require that evidence will lead to suspect in terms of existence and scope. But this statement was not considered by the Convention but national conflict law was represented by the substantive law and it was seized by the court. According to view of European judges that national judges should be allow to evaluate possibility of harm and national conflict law rule, which should be again able to represent laws in substantive manner. As a result it is clear that if any particular internet offence is determined in French territory then suitable action will also take place in that particular region as well. Also there was Huston case and in that case the French court of conduct emphasized the important application in terms of French rules on moral rights. French procedure is able to represent all such applications which are related with that particular case and these are as follows:

In case of international private law that are considered by judge and the first step of the procedure taken by the judge was to analyze bindings of application within limits of own law and then all associated facts are applicable in that particular case. If judge found any positive indication then no further action will taken by judge. But on other hand if that particular procedure is going in opposite direction then adequate resources has to set up in terms of traditional mode of conflict of law. When there is existence of obligatory applications then this particular mode shows its importance in terms of possibility of application. Therefore according to the ECJ in case of Shevill stated that there is need to show orientations in terms of the national conflict of law rules of the court. Thus obligatory applications are those applicable on that case according to French court of conduct and the applications declared by French court.

CONCLUSIONS AND RECOMMENDATIONS

Emergence of digital environment has two sided effects both in terms of positive and negative. On behalf of digitalization, it is possible to make some changes in original piece of work and converted in second copy. Thus related moral rights and economic rights are also impacted by this. Therefore there is need to enforce some guidelines, which will be able to protect favor of original owner or author. Regarding this concern several Act and provisions have been laid down in terms effective implementation of the Law of Copyright Act and Moral Rights.

In current phenomena moral rights are able to represent respect and identity of author. And on behalf of that favor of author can be protected. But on other hand, there is need to implement effective laws related with copy right and moral right so author will receive sufficient benefits in terms economic and respect. Some lacks are also associated with law of copy rights and moral rights. Therefore there is need to implement international law in terms of set of various national laws. So all nations will be able to solve several issues those are associated with that.    

Above discussion is able to highlight that according to French moral rights applicable on that particular work done by author and which is distributed on Internet. The limitation of result leads to harm in particularly within limits of French territory. In terms of structure of UK and French laws there is some differences are also available and those are: there is no availability of cure against violation of moral rights and this is the reason suggestion was given by French and UK moral rights that author should involve in a forum shopping. In case of violation of moral rights French court is not able to provide more economic benefits to owner from person who involved in violating it. Thus on behalf of this kind structure of moral rights exploiter is not able feel free. According to French code of conduct represents that lots many difficulties are associated with implementing any action against exploiter.

There is one question is also there which is very complicated and that is enforcement. Regarding issues related with enforcement the Brussels Regulation introduced in March 2002 and emphasize on extra issues related with enforcement but burden of this in terms expenses not bear by author. Most important thing in front of author is that cure against violation and for this purpose there is requirement of offensive measures within limits of French territory. This is equitant to case of Licra and Yahoo Inc.And criminal offence declared by court against yahoo, Internet Service Provider (ISP) and this company based in USA.

This statement declared against Yahoo because of unlawfully activity generated by This Company after providing information that was harmful for French citizens. This judgment was presented by French court against internet service provider within limits of French territory where it is unlawful and that company belongs from USA and there this action is not avoidance of law. But the US court in San Jose stated that action was not sufficient in case of Yahoo but because of French court Yahoo restructures their availability of information in the year January 2001 and all such previous information banned by this service provider.

Thus if websites are found responsible to violating moral rights within limits of France then exploiter will be responsible for same judgment. But this judgment was not have any worth in US because US court clearly denied it and stated that this French judgment is not applicable in US territory. But on 7th November 2001 the Federal court stated that Yahoo is involved in activity which is exploiting laws of nearly 200 countries and accessing this information within US territory.

Thus as its solution US court implemented according to application of the national law of the site. But the statement declared by the France and that was unlawful statement according to the US court of conduct. Therefore if any service provider accessing any information against law and that company is responsible to face judgment according to laws of home nation. 

Thus reason and main aim to implement this kind of solution is that to get control upon original material and to get sufficient economic return on that. Distribution of information is present in form of limited geographically and how all developed devices can protect this mechanism. On behalf of combination of these two devices it seems preventive but vary rarely manner to geographical reach. Because of exploitation of moral rights, owner of copyright material feel that there is need to build such kinds of measures or tools to prevent in France. Therefore result of this discussion is disastrous that covers area of internet.

On other hand there is one positive nature is also available of internet and that is author is able to get better benefits in terms of their claim from exploiters. There is one doubt stated by author that if moral rights are developing for the purpose to get more and more economic benefits. This argument shows that if this thing happening in wider manner then exploiter may change their nature of work. And by this statement author wants to clarify that work should reach directly to final user. But fortunately on behalf of internet this possible to provide work to the final user without help of third party in that particular process of distribution.

And for this purpose an initiative was introduced by Lawrence Lessig (Stanford University). Platform was created for the purpose to provide wider benefits to authors in terms of free accessibility of legal structure for defending purposes. And regarding this context flexible and easy licenses of intellectual copyrights are available in front of artists, painters and authors for the purpose to protect their rights. Above statement is able to represent prevention on copy of original work and it can be acceptable with proper attribution. Thus contracts are able to define moral rights.



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