Is Mira Rajan Wrong or Right About Moral Rights and Whether Creative Commons “Gets it wrong”?

Ms. Rajan is once again extending her unique perspective and preoccupation with moral rights to realms few would understand and reaching conclusions with which few would agree. She has received some harsh criticism concerning her views on Creative Commons ("CC") recently posted on Jeremy’s 1709 blog and has now published a “rejoinder”.   While she is to be commended for her prolific and passionate writings on moral rights, culminating in a 572 page book published by Oxford in 2011, her views are indeed nevertheless controversial, unorthodox, and arguably, in many instances, simply wrong.

In a remarkable new post on Jeremy Phillips's 1709 Blog, she attacks the Creative Commons movement as another incursion on moral rights and an author’s “right of getting paid”, which she says is a moral right. Concerning the CC movement, she says:

Today the United States has less legal protection for moral rights than ever. But there is a new alternative venue for moral rights in the United States: Creative Commons. The shortcomings of this alternative are so striking that the Creative Commons phenomenon should be a new and powerful reason for the American government to re-examine the possibility of introducing federal legislation on authors’ moral rights – not because Creative Commons has failed to recognize moral rights – but because it fails to recognize an artist’s right to be paid for his or her work. (Emphasis added)

Getting paid is a fundamentally important economic right in copyright law, but the enjoyment of this right it is subject to two perfectly obvious qualifications – indeed obvious copyright laws of gravity. The first is that there must be one or more parties that are willing to pay. The second is that an author is perfectly free to not exercise the right to its full extent, or even at all. The author could be J.K. Rowling, or an unknown aspiring poet or a professor.  In other words, some authors can be generous and choose not to get paid; others have little or no choice.

Mira presumably let Jeremy publish this piece without payment. Presumably this could have been because she believes in open access, desires the prestige of this fabled forum, or just wants to be helpful. Or any other good or even bad reason or combination thereof. Whether or not she could have been paid for this in another forum, I have no idea.

The right to get paid or not to get paid is an economic right.  It has NOTHING  whatsoever to do with moral rights. Nada. Niente. Nihil. Rien.

And this is the basis of how Creative Commons works. CC may actually bolster moral rights in the USA by encouraging users to show respect for moral rights beyond what is explicitly required in 17 USC, which is basically nothing, other than for visual artists. This is not some sort of compelled sacrifice or deal with the devil. Nobody is forcing anyone to use CC – and authors such as J.K. Rowling or Stephen King are not exactly rushing to do so. However, some very successful authors such as Larry Lessig are indeed embracing it – and are still able to deal with commercial publishers with apparently great success. Indeed, one can specify that the CC license is only for non-commercial use, thereby retaining the right to license the work for commercial use. To see how this works in practice, see www.lessig.org

 

In any case, even if the USA has an obvious lacuna in its Copyright Act regarding moral rights, there is a readily available and much more potent remedy available for the failure to attribute – which is probably the most important moral right and the one she seems to be most concerned about. This is the “P” word –  i.e. plagiarism. Any student, academic or journalist who fails to attribute even short quotations from another person – and even ideas where they are clearly “original” – may face allegations of plagiarism. This can have career ending consequences. In the academic context, "plagiarism" is and should be a far more serious allegation than that of merely non-commercial copying, which happens frequently in de minimis non-commercial ways that are often fair dealing or fair use and which virtually nobody cares about, except Access Copyright, which is beginning to resemble a "troll" in its business model.

Moral rights can be waived, explicitly and even implicitly – in Canada at least. If she is “not sure” that implicit waivers of moral rights are recognized in Canada, she had better re-read the Canadian Copyright Act, as well as David Vaver’s writings on Canadian copyright law. He is very authoritative on matters such as this and is quite definitive and explicit that moral rights can be implicitly waived in Canada. 

This is not the first time that her pronouncements on moral rights have evoked confusion, disbelief and even incredulity. In her Fordham paper that she cites in her blog here from June 6, she says, quite astonishingly, concerning the Google Books project, that:

In fact, the Google Books decision is of immense significance, not only for U.S. copyright law, but also for moral rights. If the display of snippets was a violation of copyright law, there can be no doubt that it could also violate the author‘s moral right to maintain the integrity of his or her work. (Footnote omitted).

In fact, Judge Chin never ruled that “the display of snippets was a violation of copyright law”. The case and decision to which she refers dealt with far more than mere snippets; it was also about the scanning of entire books.  And Google wanted the settlement to cover the display of far more than mere snippets. 

In any event, the copying of a snippet (presumably meaning short excerpts out of an entire book) is rarely going to constitute a copyright violation of economic rights. Only in a very hypothetical sense would a moral rights issue arise, and then very rarely. That might be the case, perhaps, if someone were to quote a passage completely out of context with the intention of distorting the author’s intended meaning. Once again, there are real world sanctions against such behavior that are much more effective than any moral rights legislation.  In any case, good writers are constantly on guard about writing sentences that cannot stand on their own, if so quoted. 

My choice to copy the foregoing snippet from Mira’s published paper would not violate her moral rights merely because she might not approve my choice of this particular snippet or the way I use it. She has no basis in copyright law to deny my right to make use of such a quote. Her theory would mean that virtually every essay, newspaper, magazine, and every scholarly paper and book ever written that contains quotations potentially violate several persons’ moral rights because the quoted persons didn’t get to approve the choice of quote. If that’s what she means, that is absurd. 

If what she means is rather that one cannot take a quote out of context in a way that its meaning becomes distorted or it becomes part of an act of defamation or becomes associated with a product or cause against the wishes of the author, that is simply trite law and common sense and is hardly worth writing a blog about. I think that we would all agree that, even under American law, nobody could get away with taking an excerpt from the Rolling Stones or the Beatles and using it, without permission, in a Viagra or Victoria’s Secret commercial. Moreover, basic tenets of journalism and academic protocol require attribution, even in the USA. This is entirely independent of moral rights.

Mira is right about one thing, which that it would be better if the USA explicitly recognized moral rights beyond those of visual artists. But that is hardly a new insight and indeed has been old news since 1988 when Dr. Bogsch turned a blind eye to the lacuna in 17 USC and welcomed the USA into the Berne convention.

I’ve now had a quick look at her 2011 book. It’s long and full of footnotes, as one might expect from Oxford. But it contains such statements as “In relation to orphan works, if nothing else, Google’s approach clearly undermines the author’s right to decide whether or not his work should be part of the Google Books archive — the moral right of disclosure.” (p. 524). The right of “disclosure” or “divulgation”, as the French call it. relates only to “first publication”.  Ms. Rajan gets this right at p. 55 of her book, but she gets it wrong in the aforesaid reference to Google and orphan works. In so doing, she muddles and confuses the already sufficiently difficult reconciliation between civil and common law conceptions of copyright (both economic and moral rights), and is even incorrect with respect to common law. An author’s right to prevent disclosure of a work is axiomatically protected by the overarching right as stated, for example, in s. 3 of the Canadian statute: “…if the work is unpublished, to publish the work or any substantial part thereof”. That is an economic right that has nothing to do with moral rights, at least in common law countries. Once a work is published, there is no right to recall it or control the quotation of insubstantial excerpts or even substantial parts, provided that the quotation or reproduction can be justified as fair dealing or fair use.

In Jeremy’s calm and understated Englishman’s words, Mira’s posting of June 6, 2012  has “become more or less instantly one ofthe most controversial pieces to appear on the 1709 Blog".  That, at least, is easy enough to understand. What follows, not so much.

HPK