Argentine Judge Says Community Rights To Access Works Can Outweigh Creator's Moral Rights

from the now-that-would-be-interesting dept

Even though they don't figure much in the US legal landscape, moral (non-economic) rights such as the right of attribution are an important aspect of copyright law in many other countries. Intellectual Property Watch has a fascinating account of a case from Argentina, where a judge decided that an individual's moral rights could be overridden by the rights of the community.

The tale is rather complicated, so you'll need to read the original article to follow all the twists and turns, but it concerns the works of Roberto Fontanarrosa, a cartoonist and writer who died in 2007. His widow signed a contract with a publishing house to bring out a posthumous collection of his unpublished short stories, but Fontanarrosa's son by a previous marriage objected on the grounds that his father's moral rights were being harmed:

he argued he was not sure his father was actually the author of the work subject to the publishing agreement and his motivation was to avoid damaging his father's reputation by allowing the print of a work of an unknown author under his name.
The judge was therefore asked to decide whether the publication should go ahead or not.
In the end, the judge in charge of the Court of First Instance, Fabián Bellizia, decided the contract signed between the publisher and the widower was valid, thus authorising the publication of the work. Moreover, he deemed the moral rights argued by the son of the author were abusive. The judge stated that the tension between author's copyright and community interest and explicitly favoured the latter over the former.
As the Intellectual Property Watch post notes, this is perhaps the first time that an Argentine court has limited the exercise of moral rights of an author by taking into account the interest of the community in gaining access to unpublished works. Moreover, the judge arrived at that remarkable decision that in some circumstances moral rights could be "abusive", not by reference to Argentina's Copyright Act, as might be expected, but to international treaties:
the American Convention on Human Rights, also known as the Pact of San José de Costa Rica, Art. 21, subsection 1 (the law can subordinate individual rights to social interests, i.e., the so-called doctrine of the social function of property), and the International Covenant on Economic, Social and Cultural Rights (adopted by the United Nations General Assembly on 16 December 1966), Art. 15, subsection 1 (right of every person to take part in the cultural life).
That judgement is not yet definitive, since the Argentinian Appellate Court now needs to consider the case. But it would set a remarkable precedent for considering the impact of copyright in a wider social contract, and weighing the rights of the creator against those of the community:
It seems this decision is a reaction against the perceived misbalance between incentive and access trade-off in contemporary copyright law. In any case, the ruling opens the door to many challenging interpretations. If the rights of the heir, as successor of the author, can be deemed abusive in a court of law, could the moral rights of a living author be considered abusive as well?
Now there's a thought.

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Reader Comments (rss)

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  1.  
    identicon
    Anonymous Coward, Apr 17th, 2013 @ 7:49am

    Vulcan logic?

    It seems the needs of the many, outweigh the needs of the few.

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Apr 17th, 2013 @ 8:00am

    Re: Vulcan logic?

    Not in America, it doesn't.

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Anonymous Coward, Apr 17th, 2013 @ 8:03am

    I think part of cultural life takes place on the internet, partly in the form of downloading. That's interesting given the International Covenant on Economic, Social and Cultural Rights (adopted by the United Nations General Assembly on 16 December 1966), Art. 15, subsection 1 (right of every person to take part in the cultural life).

     

    reply to this | link to this | view in thread ]

  4. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Apr 17th, 2013 @ 8:06am

    The creator is DEAD, this is secondary squabbling..

    First, your headline is totally misleading. It's yet another ANOMALY with NO broader implications.

    2nd, since when have Mike or Minions, let alone fanboys, here at Techdirt been recognizing the MORAL right that is the basis of copyright? You just tacitly admitted that pirating is immoral.

     

    reply to this | link to this | view in thread ]

  5.  
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    PaulT (profile), Apr 17th, 2013 @ 8:11am

    Re: The creator is DEAD, this is secondary squabbling..

    What does anything in the article have to do with piracy? Once again, ootb has to make up his own reality in order to make any sort of point.

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, Apr 17th, 2013 @ 8:11am

    Re: The creator is DEAD, this is secondary squabbling..

    Recognising that something exists != recognising that it should apply.

    And, being dead has never stopped copyright enforcement. How else do you explain "life + 70 years", AND the fact that performance rights organisations have demanded payments for performing traditional folk songs, despite the original creators being several centuries dead? This isn't an anomaly; it's happened multiple times in Russia and Europe.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Anonymous, Apr 17th, 2013 @ 8:17am

    Prior Treaty Impact on New Treaties

    "the American Convention on Human Rights, also known as the Pact of San Josť de Costa Rica, Art. 21, subsection 1 (the law can subordinate individual rights to social interests, i.e., the so-called doctrine of the social function of property), and the International Covenant on Economic, Social and Cultural Rights (adopted by the United Nations General Assembly on 16 December 1966), Art. 15, subsection 1 (right of every person to take part in the cultural life)."

     

    reply to this | link to this | view in thread ]

  8.  
    icon
    Rikuo (profile), Apr 17th, 2013 @ 8:17am

    Re: The creator is DEAD, this is secondary squabbling..

    Yet again, you argue as if the moral implications of copyright are an absolute, with no other viewpoint even possible. Me, I believe copyright to be immoral, in that it takes away my ownership rights over my equipment (since I'm being told I can't use my computer to copy certain files, I might as well not be the owner, despite having paid full price for it). And no, don't bother trying to equate it to say paying for a car and not being allowed to drive at whatever speed I want: in that case, there is a provable harm that anyone can point to, lives have been lost through speeding. Copyright infringement though doesn't.

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Anonymous Anonymous Coward, Apr 17th, 2013 @ 8:21am

    Prior Treaty Impact on New Treaties

    "the American Convention on Human Rights, also known as the Pact of San Josť de Costa Rica, Art. 21, subsection 1 (the law can subordinate individual rights to social interests, i.e., the so-called doctrine of the social function of property), and the International Covenant on Economic, Social and Cultural Rights (adopted by the United Nations General Assembly on 16 December 1966), Art. 15, subsection 1 (right of every person to take part in the cultural life)."

    So, we have an existing treaty that requires the right to take part in cultural life. What is the impact of that treaty on subsequent treaties, like TPP and ACTA? Could it be prior restraint so to speak? Could it invalidate subsequent agreements? Could a new treaty overcome this prior agreement without directly addressing the issue?

    Non legal minds want to know.

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Digitari, Apr 17th, 2013 @ 8:23am

    Re: Re: Vulcan logic?

    in America, then needs of the many (Dollars)out weight the needs of the few (dollars)

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    cpt kangarooski, Apr 17th, 2013 @ 8:32am

    Re: The creator is DEAD, this is secondary squabbling..

    2nd, since when have Mike or Minions, let alone fanboys, here at Techdirt been recognizing the MORAL right that is the basis of copyright? You just tacitly admitted that pirating is immoral.

    No, you've misunderstood. In many countries outside of the US, there are two types of authorial rights: copyrights, which are viewed as an economic right to exploit a work in order to make money, and which can be assigned or licensed; and moral rights, which have nothing to do with morality, but instead consist of non-assignable rights of the author to control whether or not a work is attributed to him as the author, and to control whether and how works are modified by third parties.

    In the US, we only have an utilitarian basis for copyright (indeed, that's the only one that makes a lick of sense), and only grant what would be considered to be economic rights. When we joined Berne, we created a thin moral rights system (it almost never applies) to let us claim that we had complied with the treaty.

    In any event, while there's nothing actually moral about moral rights, piracy doesn't usually infringe on them. Piracy is an infringement of economic rights, and is just as amoral as copyright is to begin with. Though you could argue that some piracy is more moral than copyright, when pirates share cultural works freely, promoting learning and the preservation of works, as opposed to authors or publishers, who are apt to lock up culture in order to wring money to satiate their merely pecuniary greed.

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Anonymous Coward, Apr 17th, 2013 @ 8:47am

    Re: Vulcan logic?

    we're talkin humans here. Whoever accused the human race of being logical?

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, Apr 17th, 2013 @ 6:01pm

    Re: The creator is DEAD, this is secondary squabbling..

    An anomoly, that is in line with the original intent and beliefs behind copyright law in the us

    It's why the copyright clause is set up in such a way that congress is allowed to enact or abolish copyright law but unlimited copyright is unconstitutional

    It's also why it's worded "congress shall have the power to promote the progresss of science" as in, congress shall have the power when granting copyright aligned with that goal

     

    reply to this | link to this | view in thread ]


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