Given the ease of manipulation of works in a digital environment,what is the impact on moral rights, particularly the right of integrity? Should the right of integrity be made subject to a waiver?
The SubCommittee uses the example of a photograph in digital form and questions whether authors will refrain from authorising reproduction of works in digital format. Much photography and illustration is already conducted in digital form. No film or canvas needs to be reproduced in digital form.
As pointed out, every digital copy is by any practical test, an original. It is precisely this concept which causes such lack ofunderstanding in some communities not currently working with today's technology.
Clearly the ease of manipulation can be an advantage to creators and users in the rapid and controlled dissemination ofinformation.
Right of Integrity
Court actions related to the right of integrity have been rare. This reflects the extreme difficulty experienced by creators in utilizing current legislation to defend the integrity of theirwork. It does not reflect a "sense of security" in the provisions of the current Copyright Act. We anticipate this will become clear when the SubCommittee incorporates the experience of creators in their final recommendations.
The problem facing creators today is that granting a right to reproduce can result in the reproduction of a grossly changed version of their work. Until the introduction of digital technology this was somewhat controllable because only one "original" existed.
The difficulty of demonstrating prejudice of reputation has resulted because the courts are a poor vehicle to judge the merit or notoriety of an artist. Creators are concerned about modification of their images. A hyper-realist whose work is modified to resemble a Renoir has suffered grievous harm to his/her professional identity, yet a court would naturally struggle with addressing the issue as a prejudice of reputation or an action akin to defamation.
With the introduction of digital technology and the fact that each copy is equivalent to original, the creator may be faced with a 1000 different modifications to the integrity of a work bya 1000 different infringers.
In the schoolroom game of passing a message verbally from person to person, we learn that the message becomes garbled and distorted beyond recognition. The same will be true of digital works as each copy is both an original and a potentially altered copy.
Although preservation of the history of art is another valid reason for the right of integrity, copyright is time limited and becomes of no effect on the majority of works which constitute art history. The true spirit of the 1988 amendment is that the artist's message be preserved. Creators (especially those inapplied arts) are concerned about the integrity of their work today.
The current right of reproduction is inadequate to deal with digital technology.
The integrity of message is an important issue to creators. A creator with a strong message regarding a social issue may desire wide distribution and reproduction of a work. The creator will be unwilling to grant wide reproduction rights if the right of integrity is not secure.
Artists are not adverse to the usage of technology to modify works with their knowledge or approval. A strengthened right of integrity can be licensed (in whole or in part) in writing for publication or reproduction in any medium.
Moral Rights
Waiver of moral rights is at best an oxymoron. There may be a reason for the waiver of the right to be associated with a work.Certainly governments have been including waiver of rights as standard contractual clauses. CAPIC is unaware of what that reason could be.
Current law permits waiver but does not provide for assignment. CAPIC has consistently held that improved protection and knowledge of all elements of copyright can be obtained through "paper trails" and the requirement that the paternity of the copyright holder be identified in all reproduction.
Much of the difficulty associated with rights clearance is the difficulty of tracking copyright owners. Where an uncredited photograph or illustration is published in a magazine, a multimedia producer seeking reproduction rights is confronted with a lengthy search for the copyright holder.
Mandatory inclusion of the author's name in any reproduction will help to educate the public on the concept and importance of the presumption that there is an author and copyright holder for all works. This will also alleviate much of the difficulty associated with locating copyright holders for rights clearance for multimedia projects.
Recommendation The right of integrity should be strengthened to limit or remove the requirement to prove "prejudice of the honour or reputation of the artist." A license to modify a work should be permitted and required under the Copyright Act. The Copyright Act should require full credit to the copyright holder be published in conjunction with or internally with every reproduction of a work.