RE: [Cdn-DMCA] Derivative works: "Moral rights" and "Monopoly privilege"

From: Jason Young <jyoung _-at-_ lexinformatica.org>
To: No DMCA in Canada <canada-dmca-opponents (at) flora.org>
Date: Fri, 5 Apr 2002 20:19:08 -0500
References: <Pine.LNX.4.44.0204050048380.8443-100000@calcutta1.flora.ca>

>Russell McOrmond wrote:
>   I am confused as to why moral rights would have limitations on
>derivative works.  Maybe we are including too much into our definition of
>"moral rights" beyond the right to be associated with (or not associated
>with) a work.  Denying the ability of someone to make a derivative work
>sounds like a monopoly and nor moral right.

Moral rights, in Canada, comprise two things: the right of integrity 
in the work and the right of authorship/attribution, which includes a 
right to anonymity.

The right of integrity is infringed if the work is

(a) distorted, mutilated or otherwise modified; or
(b) used in association with a product, service, cause or institution

to the prejudice to the author's honour or reputation. The act 
doesn't specify what prejudice is or what distorted, mutilated or 
modified means. You have to go to caselaw for that and there hasn't 
been much, in Canada. Off the top of my head, an sculptor claimed 
infringement of moral rights -and won - when his sculpture at 
Toronto's Eaton Centre was draped in wreaths. A Nintendo game 
designer won when his game - which he did not own a copyright on - 
was ported to a Genie, which was black & white and, I think, lower 
resolution and so on.

>Chris Brand wrote:
>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. I can see both sides
>of this argument - if I come up with a great picture or something and
>some organization I oppose uses it for their advertising campaign, do
>I have a moral right to object to that use ?

Yes. You can't assign moral rights to a third party, but you can 
waive them. This sounds better on paper; usually rights are simply 
waived in the licence.

In the U.S., moral rights includes a right to control disclosure. 
Since Randall's "The Wind Done Gone" was based on the Mitchell's 
earlier work, it was considered derived of that work and the 
publication thereof was prevented.

>If so, what stops this being
>abused to make some parts of our culture only available to a select few?

I don't think this is much of a problem. The reality is that most 
copyright work goes through few bottleneck distribution points, 
controlled by mega-conglomerates who have a lot more bargaining power 
than the creators.

>I think the example given by someone at the Vancouver meeting was
>that somebody's photo was used to advertise porn or something. It may
>be that this is not really a moral right but something that comes under
>other areas of the law like defamation of character.

Interesting example. It could come under both. It could also come 
under appropriation of personality or privacy law, as in the case 
Aubry v. Editions Vice-Versa, in which a teenage girl was 
photographed in public, without her knowledge, and the photograph was 
subsequently used to 'dress-up' a city column in a Montreal magazine. 
Her friends "laughed at her" and she sued and won under the Quebec 
Civil Code's "right to privacy".
-- 
Jason Young
jyoung@lexinformatica.org
613.531.3442
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