Seminar 1 – COPYRIGHT LAW Cecilia Sternius

MORAL RIGHTS

Historical background and place in the legal system

Intellectual property law, of which copyright law is one of several rights, is part of the civil law
system. Ever since the first codifications of copyrights were made in England and France in the
18th century the substantive laws covering copyright has been a matter for national development.
As a consequence copyright on its subject matter has only effect on the territory of the country
where the law has been enacted, so called national or territorial effect.
Moral rights is one of out of two distinct categories of rights which are protected under
copyright law.1 The other category of rights is economic rights. These two categories of rights,
which are exclusive rights and independent of each other, form the basic elements in copyright
law, which aims to protect literary and artistic creativity.

The content of moral rights

In general terms the moral rights protect an author’s non-pecuniary interests. The moral rights
consist in the paternity right - the right to be named or identified as the author of the work, which
also includes the right to object to false attribution - and the right of integrity - the author’s
exclusive right to object to any derogatory treatment of a work, or a part of it, that is contrary to
the author’s honor or reputation as such. These moral rights can normally not be transferred.2 The
reason for that is said to be that the moral rights are so closely tied to the individual, or more
precisely his or her act of personal creation.3 This is an important difference from the economic
rights, which are transferrable. As a consequence, the owner and right holder of the moral rights
is the individual author who has created the copyright protected work. But when it comes to the
economic rights of the same work the owner and right holder of such economic rights may not
always be the same person, or the author of the work.
Both the moral rights and the economic rights are limited in time. The moral rights last in most
cases for the duration of the economic rights.4 The term may vary from country to country, but in
most national laws it is limited to the lifetime of the author plus fifty years.5 Having this said, in
some countries the term of protection of the moral rights can be perpetual.

International Conventions
An effect of the territorial nature of the copyright law is the difficulties to maintain the level of
protection of such rights when the copyright protected work is transferred outside of the country
of origin. To safeguard the economic and moral rights of such works also in these situations the
Berne Convention for the Protection of Literary and Artistic Works from 1886, hereinafter
referred to as the Berne Convention, was adopted.

                                                            
1
The term “moral right” derives from the French “droit moral”.
2
 United Kingdom does, however, by law provide for a possibility for the author to waive his/her right to
integrity by way of agreement. See further Lionel Bently and Brad Sherman, ”Intellectual Property Law” p. 258.
3
Henry Olsson, The legal protection of copyright and neighbouring rights its relation to the freedom of
expression, p.11.
4
This is also reflected in the Berne Convention, article 7(1), which contains some general provisions of the term
of protection of the moral rights, which shall be maintained at least until the expiry of the economic rights,
which is lifetime of the author plus fifty years. 
5
A longer time frame has been introduced in the EU, through the Protection Directive 93/98/EEC, article 1(1),
where the works protected by article 2 of the Berne Convention shall be protected for seventy years after the
death of the author.

 
 
Seminar 1 – COPYRIGHT LAW Cecilia Sternius

The Berne Convention

The Berne Convention is the first international convention, and also the most important in this
area of law. It covers all the essential aspects of the protection of copyright, including the moral
rights. The provision covering moral rights is found in article 6bis, which in the first paragraph
stipulates:
“Independently of the author’s economic rights, and even after the transfer of the said rights,
the author shall have the right to claim authorship of the work and to object any distortion,
mutilation or other modification of, or other derogatory action in relation to, the said work,
which would be prejudicial to his honor or reputation.”

However, the Berne Convention does not provide for any specific provisions of enforcement or
sanctions, but refers instead the legislation of the country where the protection is claimed.6

The Agreement on Trade-Related Aspects of Intellectual Property Law (TRIPS)

Another important international convention is the TRIPS agreement, which by reference has
incorporated the articles about protection of copyright in the Berne Convention. But the
provisions covering moral rights are explicitly excluded.7 Hence, only the economic rights of
copyright are protected under TRIPS agreement. Provisions such as the most favoured nation
principle, obligations to have enforcement procedures available under local law, as well as
remedies such as damages for breach, provisional measures etc., are not applicable. All which
could have been beneficial for the safeguarding of the author’s moral rights.

EU Directives
Whereas the principle of national treatment in the Berne Convention provides a vehicle for
international protection of copyright, it does not as such aim for harmonisation of the national
copyright laws. On an European level, however, efforts have been made to obtain more a
harmonised legislation to prevent that national rules on copyright and related rights create barriers
for and efficient trade within the internal market. One of the more important ones within this area
is the Protection Directive.8 But also here the “moral rights” are explicitly excluded from the
scope of the directive.9 The INFOSOC Directive is another important directive in the copyright
area.10 Again the moral rights remain outside of the scope of the directive.11

Conclusion
There are very few provisions on an international level that regulates the content and protection
of moral rights. For protection and enforcement of moral rights recourse has to be made to
national copyright laws. Far more provisions cover the safeguard of the economic rights. Also
when it comes to the harmonisation of moral rights this is still an area where such work of
harmonisation remains to be done.
                                                            
6
Article 6bis (3).
7
Article 9(1) TRIPS.
8
Directive 93/98 EC.
9
Article 9.
10
Directive 2001/29 EC. Preamble 1 of this directive emphasises that the harmonisation of the laws of the
member states on copyright and related rights contributes to the achievement an internal market where
competition on such market is not distorted
11
Preamble 19 of the directive stipulates: ”The moral rights of rightholders should be exercised according to the
legislation of the Member States and the Provision of the Berne Convention for the protection of the moral
rights (…). Such moral rights remain outside of the scope of this directive.”.