What Are Moral Rights?

Apr 26, 2011

What Are Moral Rights

This article discusses what are moral rights in the context of Canadian and International law. The Canadian Copyright Act provides authors with both economic and moral rights. Moral rights are an extension of an artist’s personality. Hughes Copyright & Industrial Design (Second Edition) Roger T. Hughes, Q.C. Lexis Nexis Butterworths p.551 notes:

The moral right is granted by the Copyright Act and is independent of any property in the physical object on which a work is fixed, such as, for example, a painting; the transfer of the physical object transfers ownership of that physical item but does not alienate the prospects of a reputation which publicity may bring the author. Gnass v. Alma (City), 1977 J.Q. no 2 (C.C.); see also Ayot v. Ville de Montreal, [1981] J.Q. no 365, [1981] C.S. 446 where a similar cause of action was founded on the Quebec Civil Code, art. 992; Desputeaux v. Editions Chouette (1987) Inc., [2001] J.Q. no 1510, 16 C.P.R. (4th) 77 at para. 35 (C.A.), award affirmed [2003 S.C.J. No. 15, [2003] 1 S.C.R. 178.

What Are Moral Rights vs. What is Copyright?

Read our article What is Copyright or the Copyright Definition.

Subsection 3(1) of the Copyright Act provides that, in relation to a work, copyright:

means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever,” and also includes the sole right to authorize such acts."

Subsection 27(1) of the Copyright Act provides that:

[i]t is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do.

The Copyright Act provides that an author of a work has the right to the integrity of a work and the right to be associated with the work as the author by name or pseudonym or the right to remain anonymous. Section 14.1 of the Copyright Act defines moral rights as the right of attribution and the right of integrity. It includes the right to the integrity of the work and the right to be associated with the work as its author. When answering the question what are moral rights, there are a number of things to look at such as which element of moral rights has been infringed (the right of integrity or the right of paternity) and whether it was prejudicial to the honour and reputation of the author or creator. Subsection 14.1(1) of the Act provides that

“[t]he author of a work has, subject to section 28.2, the right to the integrity of the work and, in connection with an act mentioned in section 3, 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.”

Author's Right to Integrity and Paternity of a Work

The right to integrity is infringed only if the work or performance is, to the prejudice of the honour or reputation of it author or performer, distorted or mutilated or otherwise modified or used for promotion in association with a product, service, cause, or institution. Copyright Act, R.S.C. 1985, c. C-42, s. 28.2(1), as amended S.C. 2012, c. 20, s. 20. Theberge v. Galerie d’Art du Petit Champlain Inc., [2002] S.C.J. No. 32, [2002] 2 S.C.R. 336 at paras. 11 to 17; Harmony Consulting Ltd. V. G.A. Foxx Transport Ltd., [2011] F.C.J. o. 451, 92 C.PR. (4th) 1 (C.A.). In the case of a painting, sculpture or engraving, such prejudice is deemed to have occurred in respect of any distortion, mutilation or other modification of the work. Copyright Act, R.S.C. 1985, c. C-42, s. 28.2(2). The right of integrity is infringed if the work is the prejudice of the honour or reputation of the author, distorted, mutilated or otherwise modified; or used in association with a product, service, cause or institution. An author’s right to the integrity of a work is assessed based on a "highly subjective aspect, which the author of the work must establish, but also an objective element requiring evaluation of the prejudice to that author’s honour or reputation based on public or expert opinion (Maltz v. Witterick 2016 FC 524 (CanLII) at para 49, citing Prise de parole Inc. v Guérin Éditeur Ltée (1995), 66 CPR (3d) 257, 104 FTR 104 (TD),appeal dismissed (1996), 73 CPR (3d) 557, 206 NR 311 (FCA)" (See Collettt v. Northland Art Company Canada Inc., 2018 FC 269 (CanLII), para 22). For instance, the application of this test has involved, to some extent, the subjective judgment of the author. Snow v. Eaton Centre Ltd., [1982] O.J. No. 3645, 70 C.P.R (2d) 105 (H.C.) where an injunction was granted at the request of the author requiring the owner of certain bird sculptures to remove ribbons that the owner had placed on the birds’ necks on the basis that the presence of the ribbons would prejudice the author’s honour and reputation. Prejudice is deemed to have occurred in the case of a painting, sculpture or engraving. Remedies for infringement of moral rights include injunction, damages, accounts or delivery up and otherwise as are or may be conferred by law for the infringement of a right (after 1988). S.C. 1988, c. 15, s. 21(1).

It is the author’s right to the integrity of the work (prevents distortion or mutilation of the work and the right to prevent the use of the work for the promotion of the wares or services of another) and the right of paternity (i.e. to be credited for that work as the author). Section 14.1.

Section 28.2(1) of the Copyright Act provides that:

28.2(1) 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.

Section 28.2(2) of the Copyright Act states that the author’s right of integrity is infringed only if the work is “distorted, mutilated or otherwise modified” to the prejudice of the author’s honour or reputation. It notes:

(2) In the case of a painting, sculpture or engraving, the prejudice referred to in subsection (1) shall be deemed to have occurred as a result of any distortion, mutilation or other modification of the work.

What Are Moral Rights: Formal Requirement for Moral Rights Moral rights are automatic and an artist does not need to do comply with any formal requirements for protection. The pivotal moral rights case in Canada is Snow v Eaton Centre where the artist, Michael Snow, created an installation of flying geese for the Eaton Centre. The Eaton Centre tied ribbons around the geese as Christmas decorations. Snow successfully argued that the ribbons were “prejudicial to his honour and reputation” and got an injunction to remove the ribbons. What Are Moral Rights: Term of Moral Rights Moral rights subsist for the same term as the copyright in a work. Copyright Act, R.S.C. 1985. C. C-42, s. 14.2(1). What Are Moral Rights: Assignment of Moral Rights

Moral rights attach to the artist. See Vaver David Authors’ Moral Rights in Canada (1983), 14 International Review of Industrial Property and Copyright Law 329 at pp. 361-366. Moral Rights and Copyright? Copyright and moral rights are intertwined for a particular work but must be considered separately from a contractual standpoint. Lachance c. Productions Marie Eykel inc., 2014 QCCA 158, 2014 CarswellQue637 Moral rights accrue only to authors. Moral rights can only be waived and not assigned. Copyright also protects the reputation of the copyright owner. Even if an author assigns their copyright, they still retain their moral rights.

What Are Moral Rights - Moral Rights Infringement

Generally, any act or omission that is contrary to any moral right that is done or omitted, without the consent of the author of a work or the performer of a performer’s performance, is an infringement of that right. Copyright Act, R.S.C. 1985, c. C-42, s. 28.1, as amended S.C. 1988. C. 15 and S.C. 2012. C. 20. S. 19. Section 28.1 of the Copyright Act provides that

[a]ny act or omission that is contrary to any of the moral rights of the author of a work or of the performer of a performer’s performance is, in the absence of the author’s or performer’s consent, an infringement of those rights.