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Copyright issues are ubiquitous in the digital environment, yet the moral rights of authors, a historic and significant aspect of copyright law in almost every part of the world, remain in the shadows. The reasons for this may be found in the nature of the rights. Debates about copyright typically focus on the immense economic interests at stake. In contrast, moral rights are personal rights of authorship, concerned with the attribution and integrity of works, and generally involve only indirect commercial consequences. Indeed, in many ways, moral rights represent a fundamental challenge to established ways of thinking about copyright law. They offer a fascinating counterpoint to the powerful economic considerations that dominate modern copyright discourse – and, perhaps, the prospect of new approaches to the resolution of copyright conflicts.
This special issue of the Journal of Intellectual Property Law & Practice explores the moral rights of authors – the current law and practice in various jurisdictions, as well as the crucially important question of the relevance of moral rights in an increasingly technological environment. The papers published here represent a selection of the presentations given at a conference which I organized in April of 2017, with the involvement of the United States Copyright Office, while teaching at Glasgow University. 1
The conference aimed to bring together a richly diverse group to explore this unduly neglected branch of copyright law. Accordingly, the conference participants included academics as well as legal practitioners and in-house counsel; leading copyright experts from a variety of jurisdictions in Europe and around the world, as well as new researchers, many of whom were interested in the interface between moral rights and technologies such as artificial intelligence and 3D printing; and, crucially, artists and those involved in the arts, from musical performance and sound engineering to museum direction.
The theme that proved to unite many of these diverse points of view was an underlying intuition about the importance of moral rights in the technological context. While the economic aspects of copyright law have faced overwhelming challenges in this environment, moral rights have gradually emerged as a distinct area of interest in their own right, and one with unexpected implications.
As digital technology has led to an explosion of matter available online, the manifest ease of manipulating these materials has generated unprecedented concerns about preserving the integrity of culture and knowledge – composed, to a significant extent, of works in the copyright sense of that term.
Individuals increasingly depend on reputation to earn a living, and to make a social impact – a situation that has only intensified as copyright, as a whole, has become more difficult to protect – and the preservation of authors’ reputations lies at the heart of international provisions on moral rights.
Meanwhile, the public faces a growing need for access to reliable information. Maintaining the integrity of digital information is also a crucial prerequisite for the effectiveness of text and data mining and, at a far more sophisticated level, for the integrity of artificial intelligence technologies.
Simultaneously, in an environment where machine learning is increasingly commonplace and machine “creativity” is of growing interest,2 the moral rights of authors may help to distinguish and protect the rights of human individuals.3
Finally, in contrast to copyright as a whole, moral rights, while facing the obvious challenges of digital technologies, have simultaneously become easier to protect. For example, services such as Apple’s iTunes help to maintain the accurate attribution of recorded music.4
It is in the technological context that a slow but steady resurgence of interest in the moral rights of authors has become apparent. Among recent initiatives exploring moral rights, one of the most interesting has been a study process initiated by the United States Copyright Office,5 beginning with a symposium on “Authors, Attribution, and Integrity,” held in Washington D.C. in April of 2016.6 Since moral rights have not been widely discussed in the United States since the early 1990s, this process of inquiry was a historic one. The format of the symposium was innovative in a further sense: the Copyright Office invited artists and authors to participate in the discussions alongside legal experts. The UK conference of the following year sought to continue and extend this inquiry on the broader international stage.
Can moral rights pave the way for a richer understanding of the challenges confronting knowledge, culture, and truth in a technological society, and, in the process, offer new and creative solutions to modern copyright problems? The papers in this special issue of the Journal of Intellectual Property Law & Practice hope to convince readers, at least, that these possibilities are worth exploring.
The conference was funded by an ESRC Impact Acceleration Account grant, and enjoyed the support of numerous public and private sector partners. The papers have been edited by myself and by Sarah Harris, the Managing Editor of the JIPLP. On behalf of myself and the contributors, I would particularly like to express our gratitude to Sarah, whose extraordinary support made the publication of this special issue possible. All errors, of course, remain our own.