Every so often the question pops up on ASJA’s Forum: “I got a contract that said something about waiving ‘moral rights.’ What are those, exactly, and should I be concerned?”
Actually, yes, and probably, increasingly more so. But even trying to define moral rights can be daunting, although Ronald B. Standler, PhD, JD, in his compellingly titled “Moral Rights of Authors in the USA”, pretty much clarifies it for the jargon-impaired. He describes moral rights as “a bundle of legal rights for the protection of the honor and reputation of the author.”
What exactly is in that bundle is up for grabs, which is why it might easier to start with what might be considered to be moral rights violations. These can range from anything to “all or part of an article, essay or blog post—as well as other works—copied without permission or attribution, and plopped down on a website,” explains Salley Shannon, ASJA past president and advocacy chair and who also serves as ASJA’s volunteer lobbyist in Washington, DC. “Or part of a work is copied and then used to further an argument that may or may not agree with the premise of the author’s original work.” The Internet, “which knows no borders,” she continues, has greatly facilitated ease of copying and plagiarism, so you may not be aware that your scientific article on the mating habits of endangered rhinos ended up on as part of a “dark web” instructional guide on the poaching and hunting of same. This can have serious implications for any writer, not only in terms of misrepresentation, damage to reputation, and lack of control, but also loss of income.
The issue of moral rights for authors is nothing new, and in the United States, harks back as far as 1882, when Samuel Clemens sued a publisher for reprinting an unauthorized collection of his works and the use of his pseudonym, Mark Twain. Standler’s booklet details this and other cases that followed, including those rejected by the courts. He also covers, among other things, the implications of author vs. publisher and vs. plagiarists and “Why the USA hates ‘moral rights.’” (“The phrase in English suggests that the rights are somehow not moral or ethical…The continuing use of a literally inaccurate phrase…has probably hindered the adoption of the rights in the USA.”)
Regardless of semantics and despite the fact that the two major treaties covering worldwide intellectual properties—the Berne Convention for the Protection of Literary and Artistic Works and the World Intellectual Property Organization (WIPO)—have been signed by the United States, “they aren’t specific enough to sufficiently protect American writers, especially now,” emphasizes Shannon. “Currently in the United States, if the rights to the work have been licensed or sold, the author has no standing when asking that he or she be acknowledged as the original author. If the meaning of the work has been distorted, the author similarly has no right of redress nor means of obtaining it.”
Even if the author retains the rights to the pirated work and can thus employ the Digital Millennium Copyright Act (DMCA), “the burden of proof of ownership is on the author, who also must track down the administrator of the offending website and initiate contact,” Shannon goes on. “Piracies are so frequent that members could spend a day or more each week on these notices alone.”
So, on March 30, ASJA provided a response to the U.S. Copyright Office’s call for input regarding moral rights for writers. In it, ASJA proposed that U.S. law be codified to protect:
- The right of attribution (the author’s name is always associated with a work)
- The right of integrity (changes to a work without the author’s express permission are prohibited)
- The right of withdrawal (the ability to keep a work with the author’s name on it from being published, if the author and publisher cannot agree on the contents)
Also included are suggestions for automating the protection of authors, including pop-up messages such as “Hey! You didn’t say where this passage originated!” or “Author name required before publication” and passing legislation defining the moral rights of authors and providing for redress.
Then we can concentrate on what we do best—write, not litigate.