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 His widow signed a contract with a publishing house to bring out a posthumous collection of his unpublished short stories, but Fontanarrosa's son by a previous marriage objected on the grounds that his father's moral rights were being harmed: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the exercise of moral rights of an author by taking into account the interest of the community in gaining access to unpublished works.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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Filed Under: access, argentina, copyright, culture, moral rights, roberto fontanarrosa

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  1. identicon
    cpt kangarooski, 17 Apr 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.

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