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Intellectual Property Law
Intellectual property law exists as a balance for formalizing rights for the economic implications of such works in its ambit and also to protect the creative rights of the author who bore the work. Presently we are concerned with the rules of and moral rights which arise from the creation of a literary work. Both have international implications but neither have international harmonisation. England born of a common-law system concentrates on the economic rights and privileges such works attract feeling that tort covered rights that are deemed to be moral. However, since the Berne convention an international norm of some degree has had to exist i.e. that moral rights are to be accounted for to some degree. England has been tentative in it's steps to bring it's law up to international standards, even to EU standards and there is little case law on the point so a lot of the outcomes presently will be speculative. We are to look to the international stage to see how far they have taken moral rights, how Jenny would fair with such rules attached to her status as creator and how likely it is that an international norm based on some of these countries policies is to come into existence.
We are to presume that Jenny's poems have been deemed to be an original work in accordance with the Copyright Designs and Patent Act 1988 so as to make them a literary work so that they therefore attract copyright. As Jenny's works have been published copyright is now vested in Jenny's publisher so Jenny has no right to contest on this ground. However, when a work attracts copyright it also attracts moral rights which are bestowed on the author of the work and cannot be given to another as in copyright as moral rights exist due to the belief that an author is inextricably linked with their creative work and therefore should have some rights accorded to them and them alone. Jenny's moral rights could be protected indirectly by her publisher. However, only Jenny's publisher could bring legal action and we do not know if the act was permitted act in any case. We are therefore to concentrate the moral rights of Jenny and whether as a result of these somewhat limited rights in British law Jenny will receive any recompense or perhaps a detraction of the piece.
The purpose of copyright law is to protect the interests of creative authors and artists. In England and in other jurisdictions where the law has derived form a common law system the emphasis of the law has been on the protection of the commercial interests of the author. England believed that tort covered the rights of the author I.e. passing off/defamation but this all had to change due to the Berne Convention which dictates the minimum protection each state must have. As a result the Copyright Designs and Patents Act 1988 included moral rights however this act is not as developed as some argue it should be in comparison with our European counterparts. There are four moral rights based on the Berne Convention included in the act which are the right to be identified as the author of a piece of work the 'paternity right'; the right of an author to object to derogatory treatment of their work the 'right of integrity'; the right to object to false attribution; the right to privacy in photograph and films. We are presently to concentrate on the supposed derogatory treatment of the work as it does not seem that Jenny is upset due to the fact that she has not been named as author of the piece but of the contradictory context it has been put in. There have not been many cases in England with which to illustrate the point as to whether Jenny has a right to object to the treatment of her work so we look to the statue, cases from other jurisdictions and to the feeling of moral rights in the UK to find what outcome and recompense Jenny is likely to get.
Ss. 80-83 hold the right to object to derogatory treatment and within this we must look at the scope of the word 'treatment' and 'derogatory' to decide whether Jenny can claim this has happened to her work. Treatment of the work is said to be any addition to, deletion from, alteration to or adaptation of the work. This definition has been criticized for being narrower than Berne's definition as that includes works whose composition or structure have not been altered. There is little case law on the point so we are left largely to speculate. This right is of great significance so it is unlikely that it would be taken lightly but based on Britain's narrow view let us examine the evidence. The television companies argument that the work was in the public domain is inconsequential the point as to whether or not it is in the public domain is irrelevant as Jenny is not arguing the fact that her work was confidential her work was indeed for the public to enjoy but it's use and portrayal if thought of as being derogatory is still very much her right to contest. As regards the amount of the poem included is that a valid reason to use a small part in a derogatory manner. The definition of 'treatment' is to be attached to activities that could offend the author. The right to object indeed applies to whole or any part of the work and there is no prefix attached stating that the part be substantial either in terms of quality or quantity so it would seem that the television company's comment that Jenny's claims were groundless are false.
Jenny's work therefore is in the scope of the act but has the treatment been derogatory enough to be objected to. It would seem the smaller the part the less likely it is that its treatment would be considered to be derogatory. The right to object to a derogatory treatment of the work does not exist if the author is merely aggrieved with the treatment of his work. According to W.R. Cornish it does not seem that the scope of the act moves on much further from the common law rule of defamation. He quotes that defamation is judged by the objective standard of right-thinking members of the community, and not by the sense of injury which the plaintiff suffers and the same is likely to be true of the new right. Cornish notes that a key change must be made to the work in some manner 'grotesque' before the right was offended. Presently Jenny's work has not been altered merely taken out of context, the very context it was written for but as she is a small time writer it is perhaps unlikely that this would damage her reputation especially if the piece is not substantial in quantity so as to identify her as the author so unlikely.
It is skeptical therefore whether or not Jenny would be likely to triumph in her cause as she is unlikely to suffer economically. England tred so carefully in the creation of these moral rights because they feared of the consequence for their concentration that of economic rights. It led Cornish to comment that British moral rights represent a highly pragmatic outcome in which the pressures of interest played a noteworthy part. Looking at the system of the European union it would seem that England's fears and the fears of other jurisdictions based on common law are unfounded but the fear of this highly focused on economy system still exists. There have been arguments that moral rights have gone a step too far, being based upon the romantic image that an author is an isolated creative genius who when creating work imparts their personality upon the resulting work. This it seems is taking away the very ideology of intellectual property law a law which is indeed and necessarily concerned with the economic implications but is also almost as fundamentally concerned with the creative rights of the creator as it is recognized that this process is so unique and important to society as a whole. Therefore the fact that Jenny will probably be unable to contest is unfair in the highest degree as it is her creative right as it were.
Intellectual property law is virtually synonymous with globilisation namely the law of copyright. This is due to industries becoming more economically important i.e. film, television and publishing industries. The very case in front of us is concerned with television an international medium therefore is it likely and necessary to harmonise moral rights internationally to bring them up to speed with the harmonisation of copyright rules. It would seem that we are moving in this direction due to the increase of moral right inclusion in many jurisdictions including those based on common law. If we were to come in line with Europe with their rules of moral rights it would seem that Jenny and others like her would have a greater say in how their work is displayed. Jenny has not given consent to her work being associated with this prisoner however this is inconsequential in British moral rights law as if it is not derogatory and the copyright has not been infringed use of the work may be permitted. This would not happen in Europe; Jenny's consent would very much matter as they have an extension to our moral rights law namely the rule of divulgation which is 'the author's right to determine the circumstances in which his work is first presented to the public'. In the case of EMI Music v Brel the author was able to prevent the use of his music in an advert despite not being the holder of the copyright. Also in Huston v Turner Entertainment Co Cass. were able to stop the showing of their film in colour as they felt this amounted to derogatory treatment of the work. This shows that harmonisation would seem to work in favour of authors rights to have their work viewed in an appropriate manner according to the reason for it's creation.
It would seem therefore that Jenny's rights as creator of the piece of literary work are perhaps not what they should be. Due to the Berne Convention being unenforceable the UK was able to decrease the remit of moral rights. It seems however that their caution may need to change in the near future as it would seem we are heading towards a global norm although cautiously so as not to upset cultural differences in the world. The very essence of Jenny's work has been distorted, a person who perhaps personifies the plight of the creative person not creating for their economic gain but to merely create and the sooner our laws come up to speed with what they should be the better as the concerns of the common law system seem to be unfounded.
Bibliography
Berne Convention article 6 bis.
Copyright Designs and Patents Act 1988.
Moral Rights and Copyright Harmonisation: Prospects for an International Moral Right? by Mira T. Sundara Rajan, 17th Bileta Annual conference April 5th- 6th 2002.
Pasterfield v Denham [1999] FSR 168.
Moral Rights Under the 1988 Act, W.R. Cornish, [1989] 12 EIPR 449.
EMI Music v Brel [1997] 171 RIDA 337.
Huston v Turner Entertainment Co Cass Civ. 1e, May 28 1991.
Golvan, C 'Aboriginal Art and Copyright' [1999] EIPR 599.
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