A recent article by Professor Emir Mohammed from the University of Windsor Faculty of Law challenges the Continental notion that moral rights, as granted by Canada’s Copyright Act, are solely personal rights innate to just “flesh and blood” authors. The article, entitled “Moral Rights and Mortal Rights in Canada”, was published in the April 2009 issue of the Oxford Journal of Intellectual Property Law & Practice.

Throughout the article, Professor Mohammed relies on two provisions within the Copyright Act that provide convincing proof the legislature may have intended moral rights to transcend mere “flesh-and-blood” authors.  The first provision is s. 10(2) and it states that the initial owner of a photograph is deemed to be the author of the photograph. Professor Mohammed points out that the Act does not restrict a corporation from being an author. The effect of this section, combined with s. 14.1 implies that a corporation as the author, may also in-fact have moral rights in a photograph.

The second section within the Copyright Act that may also grant corporations moral rights is s. 14.2. This section expressly provides that upon the death of an author the moral rights pass to the author’s estate and are bequeathed to a “person” for a period of 50 years. Again Professor Mohammed emphasizes that the Act does not exclude corporations from being considered a “person”.

For those with a Continental understanding of moral rights – believing them to be an extension of the author’s personality – Professor Mohammed’s arguments may be challenging to accept. The first difficulty is with regard to moral rights not being solely personal in nature:

Moral rights are not intended to be entirely personal in nature under Canada’s Copyright Act, since the economic owner of copyright on succession is clearly a different ‘person’ to the author, and may even be a body corporate.

Even though moral rights are not entirely personal in nature on account of succession, it would seem that the moral rights are still those of the original author of the work and not the successor. While a successor may not be ideal and may enforce the author’s moral rights differently than the original author, this is likely the only effective way to enforce an author’s moral rights.  The successor is merely acting on behalf of the original author to enforce their moral rights because the original author cannot. In pointing to these difficulties in footnote 24, Professor Mohammed seems to implicitly recognize that the purpose of succession is really to provide a mechanism to protect the original author’s moral rights after their death:

The enforceability of bequeathed moral rights raises interesting issues. If the moral rights are said to be ‘personal’ rights, how would the executor of an estate truly know when such rights are being infringed?

Assuming this understanding of the successor’s role to be correct, if moral rights could indeed be bequeathed to a corporation should they truly be considered to be the corporation’s moral rights? Is the corporation really not just acting on behalf of the original author to enforce their moral rights?

This argument is further supported by other provisions within the Act. For example, s. 14.1(2) states that moral rights may not be assigned but may be waived in whole or in part. This restriction on inter vivos transfers of moral rights is strong proof that the moral rights are those of the author, and that except for death, they should be the only person who can enforce those rights. Similarly, s. 14(1) provides that where the author is the first owner of the copyright, and despite any agreement to the contrary, copyright devolves on their legal representatives as part of the estate of the author 25 years after the author’s death. Both of these provisions indicate that moral rights should only be exercised by the original author of the work, and that upon the author’s death, moral rights should be exercised by the legal representatives that arguably must ‘represent’ the author’s interests.

Professor Mohammed’s argument that corporations could have moral rights in a photograph is convincing, however. The Act explicitly allows corporations to be an author of a photograph, no provision explicitly bars corporations from being granted moral rights, and corporations are recognized as separate legal persons.

While the Act may support a reading that corporations can only hold moral rights in photographic works, it still remains to be seen what the effect is of such a reading on all stakeholders in copyright.

Posted in Copyright, IP