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copyright:moral_rights

Moral rights

Moral rights are a type of right granted to the author of a work, as distinguishable from the “economic” rights of copyright. “They treat the artist's œuvre as an extension of his or her personality, possessing a dignity which is deserving of protection.”1 Moral rights descend from the civil law tradition, and protects the “integrity” of a work. These rights are not assignable or transferrable, and may only be exercised or waived by the author.

Statutory basis

S. 14.1(1) of the Copyright Act provides the basis for moral rights:

14.1 (1) The author of a work has, subject to section 28.2, the right to the integrity of the work and, in connection with an act mentioned in section 3, the right, where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous.

Infringement of moral rights is defined in ss. 28.1 and 28.2:

Infringement generally

28.1 Any act or omission that is contrary to any of the moral rights of the author of a work or of the performer of a performer’s performance is, in the absence of the author’s or performer’s consent, an infringement of those rights.

R.S., 1985, c. 10 (4th Supp.), s. 6; 2012, c. 20, s. 19. Nature of right of integrity

28.2 (1) The author’s or performer’s right to the integrity of a work or performer’s performance is infringed only if the work or the performance is, to the prejudice of its author’s or performer’s honour or reputation,

(a) distorted, mutilated or otherwise modified; or

(b) used in association with a product, service, cause or institution.

Where prejudice deemed

(2) In the case of a painting, sculpture or engraving, the prejudice referred to in subsection (1) shall be deemed to have occurred as a result of any distortion, mutilation or other modification of the work.

When work not distorted, etc.

(3) For the purposes of this section,

(a) a change in the location of a work, the physical means by which a work is exposed or the physical structure containing a work, or

(b) steps taken in good faith to restore or preserve the work

shall not, by that act alone, constitute a distortion, mutilation or other modification of the work.

It appears that prejudice to honour or reputation must be based on some objective evaluation based on public or expert opinion - subjective belief of the author alone is not enough.2

Jurisprudence

In the famous case of Snow v The Eaton Centre et al,3 the author of the sculpture known as “flight stop” consisting of 60 geese, mounted at the Toronto Eaton Centre, sued for moral rights infringement when ribbons were attached to the necks of the geese during Christmas time. The author believed that “his naturalistic composition [was] made to look ridiculous by the addition of the ribbons and suggest[ed] it [was] not unlike dangling earrings from the Venus de Milo”. Evidence from other artists and knowledgeable people was apparently led which supported the author's view. The Court ruled, with very brief reasons, that this did distort or modify the work and that it was reasonable for the author to be concerned that it would be prejudicial to his honour or reputation. Thus, the ribbons were ordered to be removed.

In Prise de Parole Inc v Guerin Editeur Ltee, 4 the defendant adapted the plaintiff's novel, La vengeance de l'orignal, for a set of elementary school level educational books, in the process omitting significant portions of the work including descriptions of the setting and an entire subplot. The plaintiff claimed moral rights infringement, and testified that he was frustrated, disappointed, shocked, and distressed by the modifications to his book. However, the Court dismissed the moral rights claim because there was no objective evidence to show that there was prejudice to his honour or reputation.

Further reading

  • Ysolde Gendreau, “Moral Rights” in Gordon F Henderson, ed, Copyright and Confidential Information Law of Canada (Scarborough: Carswell, 1994) at 161.

1 Théberge v Galerie d'Art du Petit Champlain inc, 2002 SCC 34 at para 15.
2 Prise de Parole Inc v Guerin Editeur Ltée, [1995] FCJ No 1583 at paras 26-28.
3 [1982] OJ No 3645.
4 [1995] FCJ No 1583.
copyright/moral_rights.txt · Last modified: 2015/08/21 19:50 by KPS