Are Moral Rights Human Rights? Event review – Part II

by Josh Jaskiewicz

The second speaker at the “Are Moral Rights Human Rights?” event was Graham Smith, partner at Bird & Bird and IT/ IP specialist. Following on from Eleonora Rosati’s black letter analysis of the factors that precluded moral rights as human rights, Graham Smith took the stand on how moral rights could be construed as a convention right. Interestingly, his presentation started with the added question “does it matter?“. This certainly alluded to some of the difficulties in applying a black letter approach, as the question prompts a wider appreciation of factors concerning moral rights as a human right.

In order to understand to what extent moral rights may be construed as a human right, Smith started by looking at some of the sources of human rights legislation, both binding and non-binding[1]. Unlike Rosati’s analysis of the substantive elements of human rights, Smith focused on the obligations imposed by human rights. These are: 1. To abstain from acts of interference 2. Impose an obligation to act between the state and individual and 3. Impose an obligation to act to secure rights as between individuals.

From the moment an author or artist creates a work he or she has various rights in it under traditional property law and intellectual property[2]. The control over the work is normally lost or diminished after it is sold[3], however. Moral rights protect the work even after it is sold namely through the rights of attribution, integrity, divulgation and modification. Under this premise, Smith pointed out that this relationship might allow for moral rights to be construed as a ‘possession’ for the purposes of protection under Article 1 Protocol 1 of the of the ECHR[4]. This was supported by reference to a case concerning a photograph which had been used by the state as a background to when issuing national identity cards without the permission of the photographer. The court held that the photographer had possession of the photograph within the meaning of Article 1 Protocol 1 and thus such use by the state amounted to an infringement[5]. In this scenario the function of the moral right of the author could be construed to have a negative obligation to abstain from interference.

Smith pointed out that similar obligations arise under the prescription of Article 8 ECHR – the right to private and family life. Under this provision, it was noted that although the objective of Article 8 was to protect the individual from arbitrary interference[6], a positive obligation may be implied to protect a person’s right to reputation[7]. At this point, the speaker took the opportunity to compare the language employed between the meaning of reputation with respect to the expanding nature of Article 8 and moral interest in regard to ICESR 15.1(c), highlighting the noticeable similarities[8].

Additionally, with regard to the Article 10 ECHR – the right to freedom of expression, Smith referred to a scenario where an author’s moral right might also impose a positive horizontal obligation to protect from interference with expression. This was supported by reference to the case of Özgür Gündem[9], where certain editions of a newspaper, and consequently the moral rights of the journalist had been unlawfully restricted by virtue of article 10 ECHR.

It follows that the moral rights of authors, in these circumstances, have imposed the same obligations as required by human rights conventions. However, does this then qualify them as a human right? Smith’s response was that all roads lead to Article 10 ECHR. He explained this in the following manner:

  • In so far that the protection of moral and material interests are required by Article 15.1.C ICESCR[10];
  • and the protection against unlawful attack on honour and reputation are required by Article 17 of the ICCPR[11] ;
  • which is also reflected by virtue of Article 8 ECHR[12];
  • that is balanced with Article 10 ECHR[13];
  • then to the extent that moral rights are required by the Berne Convention[14] the conclusion is that there is no such conflicting interpretation as to why moral rights cannot be construed as a human right.

Smith concluded by making reference to the seminal cases Ashdown v Telelgraph Group Ltd[15] and Ashby[16] saying that we could no longer ignore freedom of expression in Europe, and perhaps this is also applies to the status of moral rights either. Whilst we may not be able to call moral rights human rights per se, thanks to Graham Smith’s presentation, it is certainly possible to construe moral rights of the author as an underlying human right present in the work, or better yet a quasi-human right.

The event finished with a good Q&A session followed by a drinks and canapé reception. Altogether a very interesting evening to say the least, both speakers offered great insight and certainly clarified what is otherwise quite a difficult question, on that note, I dare to ask what a quasi-human right is.

Joshua Jaskiewicz is an LLM Candidate at Queen Mary, University of London, Student Fellow of the Queen Mary Intellectual Property Research Institute and Assistant Editor, Queen Mary Journal of Intellectual Property.

[1] For the purposes of this presentation, the speaker looked at: The Universal Declaration of Human Right 1948; European Convention on Human Rights 1952; International Covenant on Civil and Political Rights 1966; International Covenant on Economic, Social and Cultural Rights 1966; EU Charter of Fundamental Rights 2009.

[2] Moral Rights and Real Obligations: A Property-Law Framework for the Protection of Author’s Moral Rights, Dane S. Ciolino, March 1995, 69. Tul. L. Rev. 935

[3] See Generally, A.M. Honore, Ownership, in Oxford Essays in Jurisprudence 107(A.G. Guest ed., 1961) – on rights comprising owner

[4] Article 1 Protocol 1 prescribes that (1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

(2) The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

[5] Balan v Moldova, application number. 19247/03

[6] Mosely v UK [2011] 53 E.H.R.R. 30

[7] Pfeifer v. Austria, applicaton number 12556/03 – reputation is encompassed by article 8 as being part of the right to respect for private life.

[8] Words like personality, reputation, respect for private life were in Pfeirfer are resonant with personal character, personality of their creator, moral interest in General Comment 17 on ICESR 15.1(c).

[9] Özgür Gündem v. Turkey, application number 23144/93

[10] General comment 17 reflects Berne Convention considered that moral interests under art. 15.1(c) included the right to be recognised, right to object, inter alia, to derogatory action, which would be prejudicial to their honour and reputation.

[11] “No one shall be subjected to… unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

[12] “Everyone has the right to respect for his private and family life, his home and his correspondence”

[13] “Everyone has the right to freedom of expression…”

[14] Article 6bis. “…right to claim authorship, object to distortion, modification of, or other derogatory action which would be prejudicial to the author’s honour or reputation”.

[15] “…copyright is antithetical to freedom of expression. It prevents all, save the owner of the copyright, from expressing information of the literary work protected by the copyright” – Lord Phillips at the Court of Appeal, [2001] EWCA Civ 1142; [2001] 4All ER 666; [2001] 3 WLR

[16] Conviction for copyright infringement held to be an interference with freedom of expression. Ashby Donald and Others v. France 3676/08