Do Writers Have “Moral Rights”?

The idea that writers have “moral” rights with respect to our written work may seem strange to those who think of copyright in purely propertarian terms. They might wonder: What does morality have to do with property ownership? But our writing is more than intellectual property, and our rights to our work are more than about earning a livelihood.

Writers’ rights are human rights, and include both economic and moral rights. That’s not just a good idea; it’s international black letter law, which is binding on the USA.

The Berne Convention for the Protection of Literary and Artistic Works—the fundamental international copyright treaty—recognizes and requires all countries that are party to the treaty to protect and provide means to enforce writers’ moral rights. These include the right of attribution (to be named, or not, as the writer chooses, as the author of the work). It also includes the right of integrity (the right to prevent “any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his [sic] honor or reputation”).

Even if a writer has sold or given away all economic rights to revenues from the work, or when someone is allowed to make “fair use” of the work without payment (a brief quotation in a review, for example), the Berne Convention requires that “mention shall be made of the source, and of the name of the author if it appears thereon.”

It’s also one’s right not to have writing stolen and published as if were the work of another. Thus “moral rights” guaranteed by treaty protect writers against plagiarism, which is not a matter solely of journalistic or academic ethics or professional norms.

Today, the moral rights of authors are more important than ever. Excerpting and “sharing” (copying) without attribution, or in altered or out-of-context form, are key tools for the creation and propagation of “fake news,” and for making it harder for readers to assess the credibility of what they read.

Unfortunately, the provisions of the Berne Convention on moral rights are among those the US still hasn’t implemented, even though the US ratified the Berne Convention more than three decades ago in 1988.

We’re pleased that Congress recently expressed interest in this longstanding issue, and requested the US Copyright Office conduct a study to determine whether the US has done enough to live up to its commitments to both international treaty partners and to domestic and foreign writers.

The short answer is “no.” The long answer is detailed in the comments on the (lack of) protection of writers’ moral rights submitted to the Copyright Office by the National Writers Union and the Science Fiction and Fantasy Writers of America. Some of our international allies, including the International Federation of Journalists, have experience in countries where the laws do protect moral rights, and they also weighed in with the Copyright Office.

We’re still a long way from federal legislation to protect our moral rights as writers. But we’re moving in the right direction. The next step will be another round of written reply comments, probably followed by hearings by the Copyright Office and then, we hope, by legislative proposals.

 

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