Are You Violating Your Employees' or Vendors' Moral Rights?
by Warren Dow, PhD
January 27, 2003
A little known and oft violated aspect of the Copyright Act in Canada involving artists and knowledge workers involves Moral Rights.
The voluntary sector has been quite vociferous in demanding fairer treatment
and more recognition of its equal rights in its dealing with government lately,
but ironically, it appears to be quite slow in acknowledging some of the rights
of its own workers, particularly their moral rights: not (just) in
the more abstruse or theoretical sense, but in strictly legal terms, which
have been carved out by federal Copyright law to comply with international
practice and treaties we are signatories to.
Moral rights are automatically granted to authors, artists, and other creators
under this law (the Copyright Act: R.S. 1985, c. C-42, full-text at laws.justice.gc.ca/en/C-42/text.html),
and they are something over and above the more familiar economic rights which
underlie fees or royalties. As spelled out in section 14.1 they give the original
creator of the work:
"(1) The right to the integrity of the work and the right, where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous."
The meaning of the latter part, sometimes known as "the right of paternity," is
obvious. Author have the right to have their name on their work as the author
(if they want) - even if they are an employee, or even if they have been paid
a commission and signed away the copyright as a contract worker. Unless it's
accepted industry practice or there's a good reason not to do so, that is: it's
not standard for authors of greeting card verse to get a byline, for example,
but it is for the authors of research reports; similarly, currency may be too
small to put an artist's name on, but photographs in print media all have the
photographers' names alongside them, now.
The nature of the right of the "integrity" of the work involves twin protections corresponding to both major senses of that term:
- the honour of the work, by not associating it with tawdry or unethical
people, products or practices (without the creator's consent, that is);
and
- its physical integrity, or original form, by not distorting, mutilating, or
even just editing it without the creator's approval, in a way that could
impair their reputation by making them look incompetent, unwise, or just
plain foolish.
These are set out here in section 28.2 (1), which reads:
"The author's right to the integrity of a work is infringed only if the work is, to the prejudice of the honour or reputation of the author,
(a) distorted, mutilated or otherwise modified; or
(b) used in association with a product, service, cause or institution."
Of course, as with many legal rights, these moral rights can be waived - provided
it is done intentionally (with eyes wide open), explicitly, and hopefully, with
adequate compensation. But again, this is something which must be done over
and above assigning or selling the economic rights involved in the copyright;
that's set out in the next two clauses of section 14.1:
(2) Moral rights may not be assigned but may be waived in whole or in part.
(3) An assignment of copyright in a work does not by that act alone constitute
a waiver of any moral rights.
And, yes, there can be potential repercussions for this activity for an offending organizations' officers and trustees. In the "Civil Remedies" section, the Copyright Act notes:
34.(2) In any proceedings for an infringement of a moral right of an author, the court may grant to the author all remedies by way of injunction, damages, accounts or delivery up and otherwise that are or may be conferred by law for the infringement
of a right.
The infringements of other copyright rights can result in awards of statutory damages of at least $500 per infraction up to $20,000, or even larger awards for the loss of income.
For Further References, see:
The guides and brochures from the Canadian Intellectual Property Office
at:
strategis.gc.ca/sc_mrksv/cipo/cp/cp_main-e.html,
such as "A Guide to Copyrights" at strategis.gc.ca/sc_mrksv/cipo/cp/copy_gd_main-e.html,
and especially strategis.gc.ca/sc_mrksv/cipo/cp/copy_gd_protect-e.html#section12.
Basics of the Law of Intellectual Property, by Alan Blackwell, possibly
from Blakes Report on Intellectual Property (n.d.), Reference Material
U. of Ottawa ELG/SEG 2910, available online at www.site.uottawa.ca/~jacques/seg2910/IP.pdf
(their homepage with more recent issues is at www.blakes.com/english).
Canadian Copyright Law, 3rd Ed., by Lesley Ellen Harris (Toronto: McGraw-Hill
Ryerson, 2001), described at www.mcgrawhill.ca/copyrightlaw
or the author's homepage at copyrightlaws.com.
These considerations also apply to website creators, as Merv White points out
in "Legal issues beginning to impact charitable fundraising on the Internet,"
from the Canadian FundRaiser, March 29, 2000, archived here at CharityVillage
at /cv/research/rofr24.html.
Warren Dow, PhD, a professional writer/researcher on nonprofit issues, can be reached at wdow@mts.net.
