Authors' rights
Encyclopedia
Authors’ rights are a part of copyright
law. The term is a direct translation of the French
term droit d’auteur (also German
Urheberrecht), and is generally used in relation to the copyright laws of civil law
countries and in European Union law
. Authors' rights are internationally protected by the Berne Convention for the Protection of Literary and Artistic Works
and by other similar treaties. “Author” is used in a very wide sense, and includes composers, artists, sculptors and even architects: in general, the author is the person whose creativity led to the protected work being created, although the exact definition varies from country to country.
Authors’ rights have two distinct components: the economic rights in the work and the moral rights of the author. The economic rights are a property right which is limited in time and which may be transferred by the author to other people in the same way as any other property (although many countries require that the transfer must be in the form of a written contract
). They are intended to allow the author or their holder to profit financially from his or her creation, and include the right to authorize the reproduction of the work in any form (Article 9, Berne Convention). The authors of dramatic works
(plays, etc.) also have the right to authorize the public performance of their works (Article 11, Berne Convention).
The protection of the moral rights of an author is based on the view that a creative work is in some way an expression of the author’s personality: the moral rights are therefore personal to the author, and cannot be transferred to another person except by testament
when the author dies. The moral rights regime differs greatly between countries, but typically includes the right to be identified as the author of the work and the right to object to any distortion or mutilation of the work which would be prejudicial to his or her honour or reputation (Article 6bis, Berne Convention). In many countries, the moral rights of an author are perpetual.
is not recognised and protected, and the need to provide an income for authors other than patronage
. Both systems provide for a monopoly
right granted to the author for a limited term which can be transferred to another person, which was initially the right to copy or otherwise reproduce the work (hence “copyright”) but has since been expanded to take account of technological developments.
It is an essential feature of authors’ rights and of many copyright laws that the object which is protected must arise from the creativity of the author rather than from his or her simple effort or investment (see Feist v. Rural in the United States
): both French
and German copyright law
s protect “works of the mind” (oeuvres de l'esprit and persönliche geistige Schöpfungen, respectively). This has led civil law systems to adopt a strong link between the rights (at least initially) and the person of the author: the initial ownership rights by a corporation
are severely restricted or even impossible (as in Germany
). Common law jurisdictions are more willing to accept corporate ownership of copyright, as in the U. S. work for hire
principle. Although the following comparison is simplistic and dependent on the exact laws of individual countries, it is difficult to see an effective (economic) difference in the two situations:
Civil law systems have also been forceful in protecting the moral rights of authors, arguing that their creativity deserves protection as an integral part of their personality. The protection of the personality in common law jurisdiction has for long been separate from the law of copyright, embodied in such tort
s as defamation (also passing off
and malicious falsehood
). Moral rights were not, therefore, explicitly mentioned in UK copyright law
until 1988, over a century after the United Kingdom signed the Berne Convention. The difference runs both ways: UK and Irish copyright laws protect the privacy of the subject of certain photographs and films as a moral right under copyright law, while civil law systems treat this as a separate portrait right. The different protections of industrial design rights
cut across the divide between the two systems of law.
to avoid ambiguity, in preference to the more usual translation of droit d’auteur etc. as “copyright”. The equivalent term in British
and Irish law is “copyright (subsisting) in a literary, dramatic, musical or artistic work”; the term in Maltese and Cypriot law is similar, except that dramatic works are treated as a subset of literary works.
(in German
verwandte Schutzrechte), often referred to as neighbouring rights as a more direct translation of the French
Droit Voisins, are property rights granted to people who are not the “author” of the work in the creative sense of the term. Typically these include performers, producers of phonograms (records, CDs, etc.), producers of films (as opposed to directors or scriptwriters) and broadcasting organisations. Related rights are generally more restricted than authors’ rights in civil law
countries, although they may be equivalent in common law
countries where both fall under the same concept of “copyright
”. They are not directly covered by the Berne Convention, but are internationally protected by other treaties such as the Rome Convention
.
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
law. The term is a direct translation of the French
French language
French is a Romance language spoken as a first language in France, the Romandy region in Switzerland, Wallonia and Brussels in Belgium, Monaco, the regions of Quebec and Acadia in Canada, and by various communities elsewhere. Second-language speakers of French are distributed throughout many parts...
term droit d’auteur (also German
German language
German is a West Germanic language, related to and classified alongside English and Dutch. With an estimated 90 – 98 million native speakers, German is one of the world's major languages and is the most widely-spoken first language in the European Union....
Urheberrecht), and is generally used in relation to the copyright laws of civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
countries and in European Union law
Copyright law of the European Union
The copyright law of the European Union has arisen in an attempt to harmonise the differing copyright laws of European Union member states. It consists of a number of directives, which the member states are obliged to enact into their national laws, and by the judgments of the Court of Justice of...
. Authors' rights are internationally protected by the Berne Convention for the Protection of Literary and Artistic Works
Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...
and by other similar treaties. “Author” is used in a very wide sense, and includes composers, artists, sculptors and even architects: in general, the author is the person whose creativity led to the protected work being created, although the exact definition varies from country to country.
Authors’ rights have two distinct components: the economic rights in the work and the moral rights of the author. The economic rights are a property right which is limited in time and which may be transferred by the author to other people in the same way as any other property (although many countries require that the transfer must be in the form of a written contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
). They are intended to allow the author or their holder to profit financially from his or her creation, and include the right to authorize the reproduction of the work in any form (Article 9, Berne Convention). The authors of dramatic works
Drama
Drama is the specific mode of fiction represented in performance. The term comes from a Greek word meaning "action" , which is derived from "to do","to act" . The enactment of drama in theatre, performed by actors on a stage before an audience, presupposes collaborative modes of production and a...
(plays, etc.) also have the right to authorize the public performance of their works (Article 11, Berne Convention).
The protection of the moral rights of an author is based on the view that a creative work is in some way an expression of the author’s personality: the moral rights are therefore personal to the author, and cannot be transferred to another person except by testament
Will (law)
A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his/her estate and provides for the transfer of his/her property at death...
when the author dies. The moral rights regime differs greatly between countries, but typically includes the right to be identified as the author of the work and the right to object to any distortion or mutilation of the work which would be prejudicial to his or her honour or reputation (Article 6bis, Berne Convention). In many countries, the moral rights of an author are perpetual.
Distinction between common law copyright and civil law authors’ rights
It is common to draw a distinction in the treatment of authors and other interested parties between common law jurisdictions and civil law systems. Although there are certainly differences between national laws, the differences in effective protection should not be overstated. Both copyright and authors’ rights arose in the eighteenth century to address identical problems: the inequality in relations between authors and publishers (and between publishers themselves) if intellectual propertyIntellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
is not recognised and protected, and the need to provide an income for authors other than patronage
Patronage
Patronage is the support, encouragement, privilege, or financial aid that an organization or individual bestows to another. In the history of art, arts patronage refers to the support that kings or popes have provided to musicians, painters, and sculptors...
. Both systems provide for a monopoly
Monopoly
A monopoly exists when a specific person or enterprise is the only supplier of a particular commodity...
right granted to the author for a limited term which can be transferred to another person, which was initially the right to copy or otherwise reproduce the work (hence “copyright”) but has since been expanded to take account of technological developments.
It is an essential feature of authors’ rights and of many copyright laws that the object which is protected must arise from the creativity of the author rather than from his or her simple effort or investment (see Feist v. Rural in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
): both French
French copyright law
The droit d'auteur developed in the 18th century at the same time as copyright developed in the United Kingdom. Based on the "right of the author" instead of on "copyright", its philosophy and terminology are different from those used in copyright law in common law jurisdictions...
and German copyright law
German copyright law
German authors' right or Deutsches Urheberrecht is codified in the Gesetz über Urheberrecht und verwandte Schutzrechte ....
s protect “works of the mind” (oeuvres de l'esprit and persönliche geistige Schöpfungen, respectively). This has led civil law systems to adopt a strong link between the rights (at least initially) and the person of the author: the initial ownership rights by a corporation
Corporation
A corporation is created under the laws of a state as a separate legal entity that has privileges and liabilities that are distinct from those of its members. There are many different forms of corporations, most of which are used to conduct business. Early corporations were established by charter...
are severely restricted or even impossible (as in Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
). Common law jurisdictions are more willing to accept corporate ownership of copyright, as in the U. S. work for hire
Work for hire
A work made for hire is an exception to the general rule that the person who actually creates a work is the legally recognized author of that work...
principle. Although the following comparison is simplistic and dependent on the exact laws of individual countries, it is difficult to see an effective (economic) difference in the two situations:
- Common law: employer owns the copyright in work created by employees
- Civil law: employer enjoys an exclusive licence to the economic rights in work created by employees
Civil law systems have also been forceful in protecting the moral rights of authors, arguing that their creativity deserves protection as an integral part of their personality. The protection of the personality in common law jurisdiction has for long been separate from the law of copyright, embodied in such tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
s as defamation (also passing off
Passing off
Passing off is a common law tort which can be used to enforce unregistered trademark rights. The tort of passing off protects the goodwill of a trader from a misrepresentation that causes damage to goodwill....
and malicious falsehood
Malicious falsehood
Malicious falsehood or injurious falsehood is a tort. It is a lie that was uttered with malice, that is, the utterer knew it was false or would cause damage or harm....
). Moral rights were not, therefore, explicitly mentioned in UK copyright law
Copyright law of the United Kingdom
The modern concept of copyright originated in the United Kingdom, in the year 1710, with the Statute of Anne.The current copyright law of the United Kingdom is to be found in the Copyright, Designs and Patents Act 1988 , as amended...
until 1988, over a century after the United Kingdom signed the Berne Convention. The difference runs both ways: UK and Irish copyright laws protect the privacy of the subject of certain photographs and films as a moral right under copyright law, while civil law systems treat this as a separate portrait right. The different protections of industrial design rights
Industrial design rights
An industrial design right is an intellectual property right that protects the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three...
cut across the divide between the two systems of law.
Use in European Union law
The term “authors’ rights” is used in European Union lawCopyright law of the European Union
The copyright law of the European Union has arisen in an attempt to harmonise the differing copyright laws of European Union member states. It consists of a number of directives, which the member states are obliged to enact into their national laws, and by the judgments of the Court of Justice of...
to avoid ambiguity, in preference to the more usual translation of droit d’auteur etc. as “copyright”. The equivalent term in British
Copyright law of the United Kingdom
The modern concept of copyright originated in the United Kingdom, in the year 1710, with the Statute of Anne.The current copyright law of the United Kingdom is to be found in the Copyright, Designs and Patents Act 1988 , as amended...
and Irish law is “copyright (subsisting) in a literary, dramatic, musical or artistic work”; the term in Maltese and Cypriot law is similar, except that dramatic works are treated as a subset of literary works.
Related (or neighbouring) rights
Related rightsRelated rights
Related rights is a term in copyright law, used in opposition to the term "authors' rights". The term neighbouring rights is exactly equivalent, and is a more literal translation of the original French droits voisins. Related rights in civil law are similar to authors' rights, but are not connected...
(in German
German language
German is a West Germanic language, related to and classified alongside English and Dutch. With an estimated 90 – 98 million native speakers, German is one of the world's major languages and is the most widely-spoken first language in the European Union....
verwandte Schutzrechte), often referred to as neighbouring rights as a more direct translation of the French
French language
French is a Romance language spoken as a first language in France, the Romandy region in Switzerland, Wallonia and Brussels in Belgium, Monaco, the regions of Quebec and Acadia in Canada, and by various communities elsewhere. Second-language speakers of French are distributed throughout many parts...
Droit Voisins, are property rights granted to people who are not the “author” of the work in the creative sense of the term. Typically these include performers, producers of phonograms (records, CDs, etc.), producers of films (as opposed to directors or scriptwriters) and broadcasting organisations. Related rights are generally more restricted than authors’ rights in civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
countries, although they may be equivalent in common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
countries where both fall under the same concept of “copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
”. They are not directly covered by the Berne Convention, but are internationally protected by other treaties such as the Rome Convention
Rome Convention
The Rome Convention may refer to one of the following conventions:* Rome Convention of 1980 on contractual obligations* Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations...
.
Further reading
- French droit d’auteur is defined in the first book of the Code of intellectual property. A good introduction is Droits d’auteur et droits voisins by Xavier Linant de Bellefonds, DallozDallozDalloz is a French publisher specialized in legal matters.The company was founded in 1845 by Désiré Dalloz, and notably publishes the Recueil Dalloz.-External links:...
, 2002, 2247047408.