Critical Comparison between the Moral Rights Framework in the US and European Copyright Law

Pawanpreet Kaur

Introduction

This paper critically analyses the moral rights framework in the copyright laws of the European Union (EU) and the United States (US). Due to the measures taken toward international standardization of the protection of copyright, especially within the framework of the Berne Convention, the legal principles of copyright in both regions have many things in common, but their differences are also inextricably tied to the actual civil legal systems. As has been mentioned above, the EU approach to copyright is to a larger extent dictated by civil law, hierarchies of rights, and stress on moral rights which protect the personality interests of the author. The US legal structure, on the other hand, is of a different nature – common law – which, as it were, recognizes only economic rights within the limits of moral rights via VARA. This difference is a clear reflection of the difference in the philosophies that have been placed in these jurisdictions with regard to the law of copyright.[1] EU’s moral rights doctrine wishes to offer authors massive protection towards the physique and milking of their work together with the precise to the asset as flawed to their creations regardless of the financial rights being sold. Moral rights in the US are somewhat limited in scope and mainly concern only visual works, so the absence of protection is felt by artists in other disciplines. Such distinctions can be understood by the varying history and culture of copyright in these areas of the world. These differ from the EU where a legal regulation is built on the droit d’auteur, which prescribes a close connection of an author to a certain piece of creation as opposed to the United States where copyright law is mostly reduced to economic encouragement towards creation and innovation. In this article, the author intends to make a comparative analysis of the legislative systems of the US and the EU with references to moral rights. It will examine why some sectors are becoming more similar because of these treaties while there are areas of divergence due to contrasting legal principles and civilizational approaches to copyright.

Moral Rights: an Overview

Accordantly moral rights are one of the intense compositions of the copyright law which professionals the non-economic interest of authors in their creations. While economic rights allow authors to make decisions regarding the commercial use of their work, moral rights concentrate on the physical person of the author and the work, as a physical entity. These rights are not transferable and include four primary components: These are the right of attribution, the right of integrity, the right of divulgation or the right to be informed and the right of withdrawal. The right or liberty of attribution gives authors the legal capacity to state that something is original from them, hence having ownership over their creations. The right of integrity is the right to prevent unauthorized alteration, distortion or derogatory treatment of one’s work in a way that the author’s honour and reputation would be adversely affected. This right of divulgation assists in the determination of when and how the author’s creations are to be disseminated whereas the right of withdrawal allows authors to withdraw their work from the public following certain conditions.[2] Moral rights are of European origin, however, and are most associated with the continental model as represented by such countries as France and Germany. Even after various modifications the Berne Convention on the Protection of Literary and Artistic (1886) continues to remain the spotlight framework for the international copyright which assigned moral rights as significant to the protection of the author’s interests. The Convention directly incorporated the rights of attribution and integrity into one of a minimum set of moral rights that the participating countries must adhere to. Although the aspect of moral rights has not been thoroughly adopted in most countries, its acknowledgement and integration into the different national laws are a clear indication of the status of moral rights in the contemporary copyright systems of the entire world[3].

Moral rights’ importance is in the goal of protecting the personal relationships of authors relating to the works. Even if these economic rights have the potential to incentivize creativity through providing financial rewards, moral rights fill an unaddressed spot in the author’s emotional and reputational cleaving with authorship. The rights themselves embody the fundamental association between author and creation; they testify to the labour, identity, and personal investment that goes into the work of creation. Moral rights theory is based on a 'gut' feeling that an unbreakable bond exists between author and work, a bond that extends to an author's insistent claim on how the work should be presented to or understood by the public. But this is not just a subjective feeling about an individual: it’s a matter shaped in and of broader social and cultural contexts. Its social self-theory suggests that the author’s identity is not constructed through his/her personal experiences, but also through his/her interactions with society. Moral rights, then, are tools for authors to regulate the representation of their social self in their works. Moral rights grant authors the power to determine how to identify and adapt their works, affording them the means with which to retain their narrative and authority over their identity in the public sphere[4].

The details of the content and enforcement of moral rights differ from jurisdiction to jurisdiction, but their universal principles remain coherent. By giving us these rights to protect the author’s voice, integrity, and individual connection to the work, creativity is much more than economics; it is very much a form of expression. As a result, moral rights are needed to keep that balance between authors’ emotional interests and the economic exploitation of their works. The scope and nature of moral rights dialogues are also growing, especially as new technologies and changes to copyright take place. Moral rights implications of broadband proliferation and changes like authorship must be reconsidered.[5] Sharing of work with alteration and its attributions in the digital world has increased the concern of the authors in today’s digital age.

Moral Rights Framework in European Copyright Law

European copyright law's moral rights framework is not only a subject with a multiplicity of factors, but which includes both national and international treaties. The copyright law is not uniform throughout the EU but is formed by a patchwork of national regulations and overarching directives to equalize copyright throughout Member States. In Europe, moral rights largely are based on principles of the Berne Convention which assumes the need for the protection of authors' interests apart from their economic rights.

Moral Rights Components

At the core of the moral rights framework are four principal rights: first, the right of attribution, the right of integrity, the right of disclosure, and the right of retraction. Attribution right represents giving the author the right to attribute or acknowledge his/her authorship of any work. It covers any distortion or change in the work that injures the honour or popular esteem of the author. The right of disclosure is there and the right of retraction provides authors the ability to re-extract their work from circulation under specific conditions. These rights taken together form a protective shield for rightsholders to be able to guard their emotional and personal connection to the creative output they create.

Implementation Across Member States

Although the framework is highly structured, the practical and legal implementation and recognition of moral rights are highly divergent among the EU Member States. For example, France and Germany are so determined to protect moral rights because they have a strong tradition that authors’ rights to control the use of their creations are important. On the contrary, however, Nordic countries – in line with a minimalist approach – restrict themselves to an absolute minimum as prescribed by the 1966 Berne Convention. Its existence further illustrates the difficulty of creating unity in the moral rights patchwork of the EU for the same reason: Member States approach their legal, cultural and social contexts differently.

The absence of harmonization of moral rights has raised the question of whether it may be necessary to introduce EU-wide normative minimum standards. Some scholars support such harmonization, contending that such a thing would simplify, provide a uniform framework that would protect the authors across the EU and help create a more equitable environment for creative expression. But some worry that this might be a bad idea, that authors might misuse moral rights to excessively control their work, stifling creativity and innovation.[6] Indeed, this creates a tension to conflate the protection of the author’s moral rights with the need to create an encouraging creative economy.

In addition, the European Court of Justice (CJEU) has contributed to developing the interpretation and application of copyright as a substantive law, such as moral rights. The originality requirement in copyright, as clarified by CJEU through a series of landmark decisions, requires that works have to reflect the author's 'own intellectual creation' to be protected. Consistent framework that could protect authors across the EU and foster a more equitable environment for creative expression.[7] However, others caution against this approach, suggesting that moral rights could be misused by authors to exert undue control over their works, potentially stifling creativity and innovation. This tension underscores the complexity of balancing the protection of the author’s moral rights with the need to foster a vibrant creative economy.

Moreover, the European Court of Justice (CJEU) has played a crucial role in shaping the interpretation and application of copyright law, including moral rights. Through a series of landmark decisions, CJEU has clarified the originality requirement in copyright, establishing that works must reflect the author's "own intellectual creation" to qualify for protection. Basic to this judicial activism has been not only the progress of harmonization of copyright law at the level of the EU but also the elucidation of the scope of moral rights vis a vis economic right. According to, for example, the CJEU, originality is important, but it also recognizes the economic factors that inform copyright law, in the context of digital technologies and the internet, for instance. Why has the EU introduced specific exceptions and limitations to copyright as certain balancing of the interests of authors with public access to creative works? The provisions include provisions which allow unauthorized use of the material under specified circumstances, like for education purposes or for the public interest. In fact, the moral rights framework sets itself apart from such economic rights and exceptions, for it is founded on the special connection between authors and their works. The challenge is between economic interests and moral rights: protecting authors’ integrity and reputation but also working in a market with flexibility and access requirements.

Moral Rights Framework in US Copyright Law

One of the features of moral rights in the U.S. Copyright law is quite developed and at times is the complete opposite of the moral rights in other jurisdictions particularly the European Countries. While the U.S. system is predominantly a system of Industrial Property, being motivated more by an economic right and aimed at protecting and encouraging the progress of artists and authors; the moral rights however are given very little consideration under this system.[8] This absence of emphasis on moral rights argues well for the historical, cultural and legal development of copyright in the United States of America.

Historical Context

The origins of American copyright legislation can be dated within the umbrella of the U.S Constitution which empowers U.S Congress to frame copyright laws. The first enactments, starting with the Copyright Act of 1790, focused on the economic rights of writers and paid scant attention to the personal rights of writers, which are regarded as the key component of moral rights in the other jurisdiction. As with most Western countries, the philosophy which guides US copyright law is a utilitarian one, its purpose being to promote the progress of knowledge and useful arts. This has traditionally therefore masked the natural rights approach, which supports the protection of the author’s ownership interest in the work.[9] The US joined the Berne Convention in 1989, only to recognize the legal status of moral rights, which is guaranteed under this international treaty. Nevertheless, when the United States ratified the Convention, the Congress cautiously stepped back from asserting moral rights claiming that the current laws of the USA complied with the requirements of Article 6bis. This reluctance shows a historical perspective that moral rights have always been less important than economic rights. Nevertheless, the concept is used, and consequently, there is some protection of moral rights but much less than is seen in various European countries and is fragmented and limited by the laws of the United States and specified by such laws as the Visual Artists Rights Act of 1990.[10]

Current Legal Framework

According to the act passed in 1976, copyright law of the United States provides the author the ownership of his or her work, it chiefly addresses the commercial aspects of the copyright ownership, which includes reproduction and distribution. The moral rights acknowledged in the U.S. are rudimentary and apply exclusively to the area of art. As for the artists’ rights, VARA grants artists the right of attribution, and the right of integrity; nonetheless, the application of the two rights is restricted only to certain particular kinds of artwork, which is visual art in this case, and are also limited in ways.

The right of attribution partially correlates with the European approach to moral rights. However, it has been seen that the U.S. framework in general does not have a proper recognition of the right to integrity. For instance, under the VARA, owners cannot allow distortions or mutilation of a work if they are intentional but other alterations cannot be prohibited even if they could be deemed commercially desirable by other stakeholders. This highlights a significant distinction: whereas, European law considers the view that it is important for the author to safeguard the work from mutilation, truncation or distortion, U.S law protects the commercial use of such work. In addition, the shape of moral rights in the United States has been affected by the critique of the natural rights tradition. The current issue of legalism is that the romanticist approach means that the individual author and his or her rights are over-represented, a point made by Peter Jaszi. From this point of view, it is argued that the contemporary market requires a rationalist attitude in which people do not identify with articles and products in the way that they used to do with creative assets. Though this perspective provides one approach to analysing the work-oriented aspects of authorship in a capitalist world, it does not address possible dispositional urges that may compel authors. Under these circumstances, it may be seen that though the US has some provisions concerning moral rights under its Copyright Law; these provisions are quite restricted and cannot be regarded as fully effective. This non-systematic structure of moral rights is in contrast with the strong legal protection of the authors in the majority of the European states where moral rights doctrine is an inherent part of the copyright legislation. These are important questions that a current lack of adequate legal protection for authors’ moral rights to their creations poses on social media and as a result, in contemporary America.

Comparison of the Moral Rights Framework

These moral rights in the copyright law play a crucial role as one of the tenets of protectors of authors, and their personas as well as reputation in regard to their work. This article focuses on comparing the treatment of moral rights in the United States and the European Union as a way of drawing out the essential historical, philosophical, cultural and statutory differences that exist between the two legal systems.

Differences

Moral rights in the United States are, in essence, more restrictive than in most other industrialized nations. The Legal Background of Copyright The United States legal system is therefore predominantly based on the utilitarian principles that are essentially an economic incentive to the copyright owners. The only federal legislation dealing with the concept of moral rights is the Visual Artists Rights Act (VARA) of 1990, although in this legislation the concept is limited only to a category of artists known as ‘visual artists’. These rights include the right of attribution and the right to prevent the destruction or alteration of their works, but only in respect of a limited category of works of visual art, and do not protect any other genres of creative work. Hence, the area of moral rights recognition in the U.S. still continues to be quite restrained and does not provide for them the juridical protection as in many countries of the world.

As a counterpoint, European trademark rights have been shaped via the droit d’auteur tradition in line with which moral rights constitute a part of trademark protection. In many EU member states moral rights go far beyond the idea of attribution and work for the integrity of the protected work.  These rights are absolute and may remain in force for many years after the author of a particular work has passed on, which reveals the author’s claim over his creation.[11] In EU law, moral rights involve the right of attribution; the right to seek prohibition of the work in certain circumstances; and the right to make a work quit circulation that we consider are broader and more protective of authors This divergence in moral rights frameworks can be explained by the difference in support culture and the law on which copyright is established in these two regions. In the United States the economic approach prevails making copyright PRIMARY feeling that the copyright chiefly serves as a regulating means that stimulates creativity through gain. However, the European approach provides ethical and individual aspects of authorship, proposing that the work is an attribute of the personality. Consequently, with the authorization of moral rights, the EU is closer to recognizing the ontological worth of the creator’s bond with a creation.

Similarities

Notwithstanding these differences, there is quite a lot of similarity between the moral rights frameworks of the U.S. and of the EU. Both jurisdictions pay attention to the principle of attribution: this is evident from the desire to ensure that creators of works can attribute their works to themselves. The right of attribution is one of the moral rights which believed as a part of both legal systems although it has shared different levels of protection and enforcement. Thirdly, both jurisdictions are members of the Berne Union that require the protection of moral rights, at any rate in a limited manner. Though the U.S. has taken a narrow view of these rights, the principles of the Berne Convention remain the basis for continuing debate about moral rights in both areas. The provisions herein guarantee that both the US and EU Members by virtue of the Convention respect the Personal rights of creators despite the fact that the extent and enforcement measures adopted may differ considerably. Both in the U.S. and EU, there are concerns about the relation between economics and moral rights especially in industries where creative investment is monetized. Topical issues such as the rights of creators as well as concerns for the public as well as the market remain an issue to date.

Conclusion

The structure of moral rights in the United States and the loss of moral rights in European copyright law make up a prime point of this interdependence of learners’ cultural values and the doctrines of the law as they progress to meet the demands of society. The US has in the past employed a restrictive and vague concept towards moral rights with a primary concern essentially on economic rights, unlike the European countries that are more protective of moral rights. These questions are central to the unravelling of this paper, pertinent especially with regard to moral rights in the future more so in contexts of recent incidences, globalization, and the impacts of digital platforms. A major problem for the moral rights framework in both of these jurisdictions is the question of how to harmonise past conflicts with modern usage. Since the US is currently the largest provider of works of authorship, it has strong policy grounds to coordinate its moral rights regime with the international one in order to safeguard American authors’ rights.[12] This need is progressively being acknowledged by bills in the U.S. legislature since the foundation on which the new international copyright protection system will be resting in coming years carries a potential for greater creativity, should it be supported by a sturdy moral rights infrastructure. That law is the Visual Artists Rights Act (VARA) and while it is helpful, it is rather limited in scope, which is why the need for greater understanding and enforcement of moral rights is so apparent. Comparatively, there is a very clear shifting of balance in recognising that moral rights are not a hindrance to economic rights but rather the mechanism to protect authors’ basic rights and their interests.

In Europe, what we observe is a holistic policy approach towards moral rights that is rooted in a cultural focus of creators on the work. The droit d’auteur culture recognises authors’ rights in addition to giving considerable importance to authors’ moral rights, including the right to paternity and the right to moral integrity. As the intermediary instrument used by the Europeans to protect moral rights for future generations of artistic works, the copyright law strives to address the emergence of new digital platforms and apply them to the newest forms of creative production.[13] This change has also prompted new thinking on how individuals seek to protect and enforce moral rights, especially with the increased use of social media by artists in sharing their work. 

This is the case for both globalisation and cross-border copyright concerns, which are both threats and opportunities to moral rights’ set-up. With the globalization of the world, there is every possibility of increased convergence between the US and European models. New legal enactments adopted during the past few years in both zones suggest readiness to reevaluate prior paradigms in light of global synchronizations. The continuous debate of moral rights implies that regulation of copyright must consider the interests of the creators, the largest body of the public, and commercial entities. In the past, the U.S.’ concentration has been largely on economic consideration but progressively people have realised that moral rights could also exist with public interest hence the possibility of merging systems in future time periods. Second, the comparison of moral rights based on the results of the analysis of global copyright systems shows that differences are a result of cultural, economic, and legal beliefs. The differing focus on the importance of industrial versus artistic form in the USA and Europe relates to the rest of society’s view of creativity and Authorship. Given that digital platforms are gradually transforming work creation, distribution, and consumption, the moral rights discourse should also gain the theoretical framework capable of capturing the dynamics of authors’ rights relation with the works and the public.

[1] Guide to the Berne Convention (1978) 2.3; Agreement on Trade-Related Aspects of Intellectual Property Rights (Marrakesh, Morocco, 15 April 1994)

[2] Cyrill P. Rigamonti, The Conceptual Transformation of Moral Rights, 55 AM. J. COMP. L. 67, 76-77 (2007)

[3] Nikhil Agarwal and Vinayak Ojha, Moral Rights: International Framework and Indian Approach, 6, Christ University Law Journal, 1-19 (2017)

[4] Sundara Rajan, Mira T., 'Moral Rights in the International Copyright Regime', Moral Rights: Principles, Practice and New Technology (New York, 2011; online edn, Oxford Academic, 20 Apr. 2015), https://doi.org/10.1093/acprof:osobl/9780195390315.003.0004, accessed 3 Oct. 2024

[5] John Coldham, What Are Moral Rights In Copyright Law?, Mondaq.com (2023),  (last visited Oct 3, 2024).

[6] Varun Sharma, European Union Directive On Copyright, Mondaq.com (2019),  (last visited Oct 3, 2024).

[7] Bird, Robert & Ponte, Lucille. (2006). Protecting Moral Rights in the United States and United Kingdom: Challenges and Opportunities under the UK's New Performances Regulations. Boston University International Law Journal. 24.

[8] Copyrightlaws.com Editor, Moral Rights in U.S. Copyright Law, Copyrightlaws.com: Copyright courses and education in plain English (2023),  (last visited Oct 3, 2024).

[9] Laura Moscati, Some considerations on moral rights in the USA and in the EU today, aggi – DPCE online, 2020/1

[10] Sotiris Petridi, Comparative Issues on Copyright Protection for Films in the US and Greece, 19, Journal of Intellectual Property Rights, 282-292 (2014)

[11] Bridger - The differences between the US, UK and European music rights systems, Bridgermusic.io (2024),  (last visited Oct 3, 2024).

[12] Remarks of President Ronald Reagan on Signing the Berne Convention Implementation Act of 1988, 24 Weekly Comp. Pres. Doc. 1405 (1988)

[13] Simon, David A., Copyright, Moral Rights, and the Social Self (June 4, 2023). Yale Journal of Law and the Humanities, Vol. 34, 2023, Northeastern University School of Law Research Paper No. 458, Available at SSRN: https://ssrn.com/abstract=4468931