AIPPI Q282-SGL-C-2022 – Moral Rights

Members of the working group: Reinhard Oertli, Hugh Reeves, Fabian Wigger and Marc Wullschleger (Chair).

Please answer the below questions with regard to your Group’s current law and practice.

References to «moral rights» below are used to encompass all legal rights and concepts used to provide protection to the non-economic rights of authors, regardless of whether they are referred to as «moral rights».

References to «moral rights» cover only moral rights in copyright law and not moral rights in related rights/neighbouring rights laws (e.g., rights on the performance), unless expressly stated otherwise⁵.

a) Does your legislation and/or case law regarding copyright recognize moral rights?

b) Are moral rights recognized outside copyright law?

c) What is the purpose of moral rights (the philosophy behind moral rights), e.g., to protect the work itself, the author, the public, etc.?

Are all types of works protected by moral rights or are moral rights restricted and/or excluded for certain categories of works (software, databases, architecture, etc.)?

Moral rights apply to all types of works which are recognized by Swiss copyright law.

What are the different categories of moral rights, e.g., right of attribution, rights of integrity (distortion or modification), rights of disclosure, rights of withdrawal, right to prevent use in association with a product, service, cause or institution, etc.? Please give a short definition of each category.

– Right of first disclosure («Erstveröffentlichungsrecht»; Art. 9 paragraph 2 CopA): The right of first disclosure of a work includes the right to publish a work for the first time. This right enables the author to decide if, or under which circumstances, his or her work will be made available to the public.​⁴

– Right to claim authorship («Recht auf Anerkennung der Urheberschaft»; Art. 9 paragraph 1 CoPA): This right enables the author to claim authorship of his or her work and therefore protects the relationship between author and work.​⁵

– Right of distortion («Entstellungsschutz»; Art. 11 paragraph 2 CoPA in line with Art. 6^bis Berne Convention​⁶): The right of distortion enables the author to «oppose any distortion of the work that is a violation of his personal rights» (Art. 11 paragraph 2 CopA).​⁷ Some Swiss scholars go further and qualify as a «moral right» the right of integrity (Art. 11 CopA) as a whole (i.e., not limited to actual distortions, but covering any direct or indirect alteration of a work).​⁸

Does your legislation and case law provide exceptions and/or limitations to moral rights, e.g., for specific categories of works, for the exercise of moral rights by author’s heirs, in case of minor modifications of a work or in the absence of the name of the author for specific exploitations, in case of abuse of rights, etc.?

It depends on how moral rights are defined (e.g., the right of integrity underlines many statutory exceptions). Several of the general limitations of copyright law also cover the personality rights of the author. For example the right (limitation) to use a work to create a parody (Art. 11 paragraph 3 CopA) overrides the right of the author to prohibit distortions. Also the right (limitation) for private use (Art. 19 paragraph 1 lit. a CopA) covers acts which in another context would be viewed as violations of the moral rights of the author. If the right of integrity as a whole is considered part of the moral rights of the author, many limitations must be considered. In addition, the general rule that the manifest abuse of a right is not protected by law (Art. 2 paragraph 2 CC) applies in the copyright context as well.

Of course, the general rule applies and provides that the manifest abuse of a right is not protected by law (Art. 2 paragraph 2 CC).

What is the duration of moral rights?

The general terms on the protection of copyrights apply also to moral rights.​⁹

a) Who is the initial owner of moral rights, e.g., the author, co-authors, investor, publisher, movie producer, etc.?

b) Can legal entities, such as an association, a foundation, collective rights organizations, a corporate company, etc., be the initial owners of moral rights?

c) Do the circumstances of the creation of the work influence who the initial owner is of moral rights (e.g., work made for hire, collective work, work created by employees, etc.)?

d) If the duration of the moral rights exceeds the duration of the author’s life, who is the owner of the moral rights after the death of the author/owner?

e) Who is the owner of moral rights of orphan works?

a) Can moral rights be subject of contracts?

b) Can the initial owner of moral rights transfer (e.g., through a contract for valuable consideration or free of charge) these to third parties?

c) Can the owner of moral rights renounce or waive them?

d) Can the law relating to moral rights be overridden by contractual provisions?

Is infringement of moral rights qualified as a copyright infringement?

Yes.

What are the conditions for an infringement of moral rights to be recognized, e.g., proof that the infringement violates the honour, reputation, dignity, legitimate interests of the author, etc.?

In general, there are no special requirements. However, at least for the right of distortion («Entstellungsschutz»; Art. 11 paragraph 2 CoPA), it would be necessary that the distortion has a sufficient impact to violate the author’s personality. Thus, not every alteration of a work is at the same time a distortion.

a) Does your related rights legislation recognize moral rights, for example for performers?

b) If YES, please indicate if moral rights in related rights legislation are identical to moral rights in copyright law?

c) If they are not identical, please indicate the main differences from moral rights in copyright law.

Could your Group’s current law or practice relating to moral rights be improved? If YES, please explain.

Yes.

We see a particular need for improvement regarding the question of how moral rights can be validly disposed of.

It is now widely accepted that the «traditional» reference to the non-transferability and non-waivability of moral rights neither adequately reflects the economic realities nor the actual needs of authors. Accordingly, there is a degree of consensus that this principle needs some adjustments. Nevertheless, the exact manner and extent to which moral rights can be validly disposed of is still not clear.

A sensible approach might look something like this. The first step should be to assume that the transferability as stipulated in Art. 16 paragraph 1 CopA (and thus also the licensability and waivability) also applies to moral rights. In a second step, those moral rights for which a transfer is not possible due to their specific nature would have to be defined. In the latter cases, it would have to be clarified in a third step whether or under which conditions a valid waiver is possible.

Moreover, there are certain inconsistencies regarding the scope of some moral rights. For example, it is questionable whether an integrity right that applies even to minor changes is reasonable. Maybe it would be more reasonable for this integrity right to be limited (e.g., via a provision in copyright contract law) in cases where a user is allowed to use a work.

Could any of the following aspects of your Group’s current law relating to moral rights be improved? If YES, please explain.

a) the definition of moral rights

b) categories of moral rights

– the definition of moral rights > see above Q12 (re scope of integrity right)

– moral rights and contracts > see above Q12 (re non-transferability)

Are there any other policy considerations and/or proposals for improvement to your Group’s current law falling within the scope of this Study Question?

NO.

Please consult with relevant in-house/industry members of your Group in responding to Part III.

Do you believe that there should be harmonisation in relation to moral rights? Please answer YES or NO.

If YES, please respond to the following questions without regard to your Group’s current law or practice.

Even if NO, please address the following questions to the extent your Group considers your Group’s current law or practice could be improved.

Yes

– moral rights and contracts > see above Q12 (re non-transferability)

a) Should moral rights be recognized? Please answer YES or NO.

b) If YES, should this be in copyright law?

a) If YES to question 16), should all types of works be protected by moral rights? Please answer YES or NO.

b) If NO, for which categories of works should moral rights be restricted and/or excluded?

What should be the different categories of moral rights? Please tick the boxes as appropriate and give a short definition of them:

– x right of authorship (this right enables the author to claim authorship with his work and therefore protects the relationship between author and work)

– x right of distortion (the right of distortion enables the author to «oppose any distortion of the work that is a violation of his personal rights»)

– x right of disclosure (the right of first disclosure of work includes the right to publish a work for the first time)

– x right of withdrawal (this right shall apply to works that have been already published and the work no longer is corresponding with the author’s beliefs and the use of the work is no longer acceptable)

a) Should moral rights be subject to exceptions and/or limitations? Please answer YES or NO.

b) If YES, which? Please tick the boxes as appropriate

What should be the duration of moral rights?

The general terms on the protection of copyrights should apply.

a) Who should be the initial owner of moral rights?

b) Should legal entities (i.e. others than natural persons) be able to be the initial own of moral rights?

c) Should the circumstances of the creation of the work influence who the initial owner is of moral rights?

d) If the duration of the moral rights exceeds the duration of the author’s life, who should be the owner of the moral rights after the death of the author/owner?

e) Who is the owner of moral rights of orphan works?

Should the property rights of the owner of a tangible asset integrating a work (painting, sculpture, architecture, etc.) be limited by moral rights? Please answer YES or NO. If YES, please explain how.

Yes. In general there should be a balance of interests in such cases.

a) Should it be possible to contract on moral rights? Please answer YES or NO and explain.

b) Should the initial owner of moral rights be able to transfer these to third parties? Please answer YES or NO and explain.

c) Should the owner of moral rights be able to renounce or waive them? Please answer YES or NO and explain.

d) Should it be possible to override the law relating to moral rights by contractual provisions? Please answer YES or NO and explain.

Should infringement of moral rights be qualified as copyright infringement? Please answer YES or NO.

Yes.

What should be the conditions for an infringement of moral rights to be recognized?

The general rules for a copyright infringement should apply.

a) Should related rights law recognize moral rights, for example for performers? Please answer YES or NO.

b) If YES, should moral rights in related rights laws be identical to moral rights in copyright law?

Please comment on any additional issues concerning any aspect of moral rights you consider relevant to this Study Question.

N/A

Please indicate which industry/cultural sector views provided by in-house counsel are included in your Group’s answers to Part III.

N/A

Summary

Until now the AIPPI has not assessed in-depth the general regime of moral rights within its scientific work. With Q282, the AIPPI has now conducted the first study to discuss moral rights on an international level and to assess possible harmonisation. The report of the AIPPI Swiss Group should support these efforts, especially with respect to a resolution during the annual meeting in San Francisco.

Zusammenfassung

Bislang hat sich die AIPPI im Rahmen ihrer wissenschaftlichen Tätigkeit noch nicht eingehend mit den Urheberpersönlichkeitsrechten auseinandergesetzt. Mit der Q282 hat die AIPPI nun die erste Studie durchgeführt, um Urheberpersönlichkeitsrechte in einem internationalen Kontext zu diskutieren und allenfalls Harmonisierungsbedarf zu identifizieren. Diese Bemühungen unterstützt die Schweizer AIPPI Gruppe mit dem vorliegenden Beitrag, insbesondere auch mit Blick auf eine allfällige Beschlussfassung anlässlich des Jahrestreffens in San Francisco.

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