Article by Nicola Solomon published in The Author of Summer 1994. Leading literary lawyer Nicola Solomon, a Deputy District Judge and Partner of Finers Stephens Innocent (179 Great Portland Street, London W1W 5LS, tel. 020-7344-7652) has kindly given AKME permission to reproduce this article. She can be e-mailed at nsolomon@fsilaw.co.uk.
The article is reproduced without any comment or editing by AKME.
You receive the advance copies of your book entitled 'Welsh Independence'. To your horror it is so full of errors, misprints and typos that you are embarrassed to be the author, and the final sentence reads 'the English are now ready to give the Welsh Independence' when the 'now' should be 'not'. In the second post comes the sub-licensed Welsh language edition, which you had hoped would give you wide exposure and publicity as an author in Wales as well as pave the way for your new book on Welsh history and enhance sales. However, the cover bears the translator's name and not your own. You look at your publishing contract, which you signed without reading on being told by the publishers that it was the standard form. You find that you assigned the publisher copyright of your book and total control of all details of production. What can you do? The traditional answer would be 'nothing'.
English law used to treat creative work like any other property; you could sell the physical work (the manuscript) and you had in addition a separate right (copyright) which you could sell or license to allow others to copy your work. However once you had sold the copyright and the manuscript you were regarded as having no further interest in the work. In other jurisdictions, notably France, the law recognised much earlier that, apart from its financial value, creative work also has an emotional value, and sought to recognise this in a series of personal rights which cannot be given away or sold. With the advent of a global market the UK has reluctantly been forced to recognise these rights, and from August 1989 four moral rights were brought in under the Copyright Designs and Patents Act 1988 ('the Act').
Integrity
The right of integrity might give you some grounds for complaint against the publisher who makes errors in your work. It allows you to object to derogatory treatment of your work. 'Treatment' means adding to, deleting from or alteration of the work and the example most commonly given is drawing a moustache on the .Mona Lisa. While this right cannot be used to object to minor editing changes, it can be relied on if the mistakes and changes are so bad that they amount to a distortion or mutilation of the work or make the work 'otherwise prejudicial to one's honour or reputation'. Clearly the missing 'not' might open you to ridicule, and you could rely on moral rights to obtain amendments to the book. It is possible that the right can also be used if your work is taken out of context. In the case of Shostakovitch v 20th Century Fox Film Corporation (1948) several Russian composers complained that 20th Century Fox had played faithful recordings of their work as background music for a film derogatory of the Soviet Union. They objected, claiming this implied their approval of the film's political stance. The claim failed in the United States, where there are no moral rights, but succeeded in France. The right of integrity applies to most book authors but there are exceptions, particularly when writing for a journal or collective reference work.
Unscrupulous publishers sometimes ask you to waive rights in respect of all future works. It is important not to give away your right of integrity without thinking about it very carefully. You may not have a problem now, but your publisher may change, and this right is valuable to help you to ensure your work appears as you would wish.
Paternity
You could object to your name being left off the Welsh edition if you had asserted your right to be identified as the author. This right is commonly called the right of paternity (although it probably should be called maternity, knowing the pain and time taken to produce one's brainchild). It gives the author of a literary, musical or dramatic work the right to be identified whenever the work is published, commercially performed in public or broadcast, but only if one has specifically asserted the right. The fact that your name is prominent on every copy of the English edition and is mentioned in the sub-licence with the Welsh publisher does not amount to assertion. The English edition and the sub-licence should bear a specific assertion referring to the Act in order to force the sub licensee to put your name on their edition. The assertion must be in writing and signed by you. Although you can assert your right at any time, you should do it when signing the original publishing contract, because a delay can be taken into account when asking for a remedy. Most reputable publishers will now agree to an assertion of rights, and many contracts include assertion clauses, but some do not - so you should check carefully. You should ensure that the assertion is wide enough to cover all sub licensed and broadcast extracts as well as the original edition. The Society of Authors recommends the form drafted by the Publishers Association which is reprinted in the Society's Quick Guide to Publishing Contracts.
The UK's reluctance to adopt moral rights shows in the Act; all the rights are hedged about with exceptions. Apart from the need to assert the right for it to be valid, other exceptions to the right of paternity exclude people who create a work while in employment unless the employer has given permission. Computer-generated works are not subject to this right, on the basis that there is no human author (although this is of course very arguable) and the other main exception is that the right does not apply in relation to publication in a newspaper, magazine or encyclopedia, dictionary, year book or other collective work of reference where the work was created for that purpose or is used for it with the author's consent. The reason for this exception has some logic; newspapers and textbook publishers do not wish to have to publish long lists of separate authors' names on work they wish to hang together as a single composition. However it is far wider than necessary to achieve those aims; it covers encyclopedias and dictionaries compiled by one author and contributors to newspapers or magazines who may well wish to be identified so they can further their reputation. Of course such authors can arrange for proper credit to be given under the terms of the publishing contract.
Right to object to False Attribution
In our example the Welsh translator could object to being named as author of your work by claiming false attribution. In some ways this is the obverse of the right to be identified. It prevents people from wrongly using famous names to sell a book. It also allows you to object to being falsely called the joint author or any other false statement as to the author of a work of joint authorship.
Privacy
If someone commissions the taking of photographs for private or domestic purposes, that person has the right not to have copies issued to the public or the work exhibited in public. Although this right is not relevant to literary work I include it here because so many authors do use or provide photographs for books. If you are given photographs for a biography by the photographer, it is not enough that the photographer guarantees that she is the copyright owner. You also need to know whether the photographs were taken for the subject's private use. If they were, then the subject can prevent you from publishing them. Incidentally you cannot be stopped on privacy grounds from writing down facts you heard or were told privately (but beware of the law of confidentiality).
Ownership and Duration
Who owns moral rights? If the author was alive when the 1988 Act came into force, all his or her work, whether written before or after the Act, will have moral rights. The rights last for the same period as copyright; presently 50 years after the death of the author (to be increased to 70 years from July 1995) except for false attribution which lasts for 20 years after the death of the author. Moral rights cannot be assigned during your lifetime, as they are by their nature personal, but you can bequeath them in your Will. However they will be subject to any waivers you have granted in your lifetime. It is because they are potentially so long-lasting that you should think carefully about giving these rights away wholesale, which may allow publishers to use your work in ways never dreamed of when you signed the contract and took the advance cheque.
Conclusion
Moral rights are valuable. They should not be lightly waived or forgotten. Although litigation can be expensive, the threat of suing over breach of these rights is used every day by lawyers (myself included) to bolster an author's position and gain a quick remedy. If they are boldly asserted they will grow in strength and may pave the way for the new moral rights if they are harmonised within the EC. They also contribute a recognition that an author is not someone to be forgotten once the material has been delivered, but a person who has a continuing and vital interest in it and its quality.
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