Thesis (M.S.)--Boston University

This thesis is a history of moral rights in Australian law. It traces the historical discourse about moral rights in Australian law and demonstrates how that discourse has shaped the meaning moral rights have come to assume in their current form under the current regime contained in the Copyright Amendment (Moral Rijghts) Act 2000. This history examines the reception and later production of a moral rights discourse in Australian law, and reveals that the historical discourse about Australian moral rights was dominated by the three themes; foreignness, international obligation and economic impact. I contend these three themes fundamentally shaped moral rights as they now appear in the moral rights regime. As the history unfolds, it will become clear that the moral rights regime was organised around a specific repertoire of arguments and imaginings, and it is this discourse that informs this thesis. My argument is pursued in three stages. Section One of the thesis provides the historical detail of the moral rights trajectory in Australian jurisprudence, and reveals, within that history, the emergence of three dominant themes, which are pursued in subsequent detail. In addition to the history, this section also provides detailed discussion of the legislative provisions in order to illustrate moral rights as a product of the history, and it highlights some of the shortcomings of the regime and provides some background for the case study in Section Two. Section Two of the thesis interrogates the structure of the moral rights regime by applying the Act's provisions to the case study of indigenous creators, thus providing a contemporary example of how these rights may work in practice, as the result of the historical discourse. Thus this section sets the scene for final part of the thesis, which delves further into the historical discourse. Section Part Three follows the themes of the moral rights debate as they emerged historically. Reconceptualizing the moral rights discourse in this way helps to explain why the debates about moral rights took a particular course and produced the outcomes it did. The starting point for these discussions is a detailed examination of the themes of foreignness, international obligation and economic impact, and follows these themes as they evolved chronologically. In particular, the discussion reveals that the debates about moral rights effectively fall into two eras. The first era (1928-1988) centred around the question of whether Australia should introduce moral rights and the debates about the appropriateness of the reception. At the commencement of the second era (1988-2000) the question shifted to what form moral rights should take. This then provides a backdrop with which to understand why specific discussions about moral rights were sidelined during the years of debates leading up to the legislation; in particular, the subject and the object; which form the fulcrum of a moral rights action. This is an essential part of the history because it explains why the subject and the object came to be imagined and constructed in such a narrow and limited way and clarifies why the moral rights provisions appear manifestly ineffective, particularly for indigenous creators and their communities. This thesis contributes to legal history in three important ways. First, it provides a detailed account of a discourse about moral rights in Australian law, and in doing so challenges the long held assumptions about their reception and production. Second, it highlights the importance of history to legal discourse. Just as regulatory regimes, institutions, and rules are integral to the law, so too are the informal practices, discourses and contexts on which they were based. Third, it reminds the reader that history is a signpost, and this history of moral rights demonstrates that the way this law was derived, imagined and constructed has significance for the social, cultural and legal context in which that process takes place.

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At first sight in copyright, moral rights seem to form a less significant part compared with economic rights. However, new technology has strongly overwhelmed traditional moral rights regime and consequently, inherent but concealed conflicts between moral rights and other legitimate interests have become increasingly prominent. Notwithstanding recognition of moral rights doctrine shows much unevenness both theoretically and in legislation with different jurisdictions in the world, the rush of economic and informational globalization has prompted the convergence of sentiment on moral rights worldwide. There can be no doubt that the essence of copyright, whether moral part or economic part, is to keep a “balance”. How to strike such a balance in moral rights system is thus becoming the main task of this thesis. Drawing from typical countries’ legislation, this thesis applies a restrictive perspective, to depict the picture of a “balanced” moral rights regime to fit in current trend of globalization.

At first sight in copyright, moral rights seem to form a less significant part compared with economic rights. However, new technology has strongly overwhelmed traditional moral rights regime and consequently, inherent but concealed conflicts between moral rights and other legitimate interests have become increasingly prominent. Notwithstanding recognition of moral rights doctrine shows much unevenness both theoretically and in legislation with different jurisdictions in the world, the rush of economic and informational globalization has prompted the convergence of sentiment on moral rights worldwide. There can be no doubt that the essence of copyright, whether moral part or economic part, is to keep a “balance”. How to strike such a balance in moral rights system is thus becoming the main task of this thesis. Drawing from typical countries’ legislation, this thesis applies a restrictive perspective, to depict the picture of a “balanced” moral rights regime to fit in current trend of globalization.

The thesis is an attempt to find a satisfactorv grounding for universal moral rights. It attempts to ground universal moral rights in a revised version of the framework of moral reasons offered by T.M. Scanlon in What We Owe to Each Oflzer. In doing so it takes on several related projects. It makes a case for why rights generally, and universal rights in particular, are an essential part of a proper moral theory. It then attempts an extended argument in support of why the method of grounding universal rights at which I eventuallv arrive is superior to competitors. The argument encompasses both why I believe that universal rights need to be grounded in an objective meta-ethcs, and why I take the sort of irrealist cognitivism advanced by Scanlon to be the most promising form of moral objectivism. The argument is admittedly defeasible: it is not so ambitious as to try to eliminate every competing rights theory, but it purports to be strong enough to show that my theory enjoys significant adivantages over manv others. In the course of making this argument I align myself with the natural law tradition, and claim that mv position is best understood as a new natural law theory. The thesis goes on to defend many elements of the Scanlonian picture of moral reasons, but also to revise that picture in important ways, particularly by arguing that Scanlon’s contractualism is best understood to be underpinned bv an account of the sacred offered by Ronald Dworkin, and that some moral reasons are reasons we all share. The final chapter of the thesis shows how rights are derived from Scanlonian reasons, and particularly how universal rights are derived from shared reasons.

This thesis examines the intersection between authors' moral rights and conflict-of-laws. The research question has been triggered by two important, interlinked factors. The first is that the currently applicable choice-of-law rules to moral rights are the same as those applicable to copyright. The second concerns the fact that moral rights are different from copyright - both in their nature and in the interest they aim to protect. Since these two factors coincide, it is questionable whether it ought to be the case that moral rights are subjected to the same choice-of-law rules as are applicable to copyright. The thesis therefore aims to discover whether the currently applicable choice-oflaw rules available in the context of moral rights are suitable for achieving the goals and objectives of conflict-of-laws. In the course of this thesis, I evaluate the potential validity of detaching moral rights from copyright in conflict-oflaws and instead attaching it to the characterization model of general personality rights. The research question is mainly addressed from the perspective of Rome I and Rome II Regulations. However, as there is no EU harmonization concerning general personality rights in conflict-of-laws, the examination will be directed towards France and England as examples of civil and common law traditions. Moreover, reference will also be made to CLIP and ALI principles by reason of comparison.

This thesis provides an insight into the current position of moral rights of authors and outlines the perspectives of the doctrine of moral rights in international copyright regime of the 21st century. Such survey is particularly urgent at a time when the doctrine of droit moral, one of the most contentious and controversial issues in copyright, is now in an international spotlight again. The recent decade has seen two contradictory trends in the field of international copyright. The 1994 Uruguay Round saw the emergence of new global intellectual property regime, embodied in the TRIPs Agreement, which elevates copyright into a new stage of development by linking it for the first time with international trade and technology and by substantially widening the scope of its governance. However, this new instrument is almost exclusively concerned with protecting the rights belonging to owners, endorsing the 'sanctity of property', but practically eliminating the protection of the original creators' non-economic, moral rights. Against this background, the 1990's have witnessed an unprecedented commitment to the protection of artist's moral rights in countries that in the past were the strongest opponents of any such notion within their copyright regimes. The question of moral rights has always been considered an issue where a wider international consensus is impossible due to the traditional rift between civil law's authors' rights and common law's copyright philosophies. However, in a world where the protection of intellectual property is increasingly viewed on an international basis - of necessity, because of technological and economic developments - a global consensus on this issue is inevitable. By reviewing the justificatory schemata underlying the doctrine of droit moral and by analyzing the recent statutory developments in several common law jurisdictions in this arena, as well as the concession made by moral rights-devout civilian jurisdictions, this thesis shows that the gap between the two systems is no longer insurmountable. The analysis reveals that despite the underlying philosophical differences, a substantial degree of convergence of copyright and author's rights is occurring, and outlines the sites of consolidation which can serve as a basis for a possible future international agreement on this issue.

This thesis provides an insight into the current position of moral rights of authors and outlines the perspectives of the doctrine of moral rights in international copyright regime of the 21st century. Such survey is particularly urgent at a time when the doctrine of droit moral, one of the most contentious and controversial issues in copyright, is now in an international spotlight again. The recent decade has seen two contradictory trends in the field of international copyright. The 1994 Uruguay Round saw the emergence of new global intellectual property regime, embodied in the TRIPs Agreement, which elevates copyright into a new stage of development by linking it for the first time with international trade and technology and by substantially widening the scope of its governance. However, this new instrument is almost exclusively concerned with protecting the rights belonging to owners, endorsing the 'sanctity of property', but practically eliminating the protection of the original creators' non-economic, moral rights. Against this background, the 1990's have witnessed an unprecedented commitment to the protection of artist's moral rights in countries that in the past were the strongest opponents of any such notion within their copyright regimes. The question of moral rights has always been considered an issue where a wider international consensus is impossible due to the traditional rift between civil law's authors' rights and common law's copyright philosophies. However, in a world where the protection of intellectual property is increasingly viewed on an international basis - of necessity, because of technological and economic developments - a global consensus on this issue is inevitable. By reviewing the justificatory schemata underlying the doctrine of droit moral and by analyzing the recent statutory developments in several common law jurisdictions in this arena, as well as the concession made by moral rights-devout civilian jurisdictions, this thesis shows that the gap between the two systems is no longer insurmountable. The analysis reveals that despite the underlying philosophical differences, a substantial degree of convergence of copyright and author's rights is occurring, and outlines the sites of consolidation which can serve as a basis for a possible future international agreement on this issue. / Law, Peter A. Allard School of / Graduate

This thesis aims to describe and evaluate actual state of author's moral rights legislation in Czech republic especially with reference to civil law recodification. The author's moral rights represent a complex of basic juridical institutes, which is the whole copyright structure, derived from. The thesis has an ambition to contribute in a long term discussion about the future development of copyright by a relevant detail analysis, description and evaluation of basic copyright system elements related to author's moral rights. Selected method is based on systematically mapped normative linkage of author's moral rights within international treaties, constitutional law and unit acts. The thesis endeavours to point out some less obvious connections between author's moral rights and other juridical institutes to achieve as complex image of recent state of legislation as possible. Other purpose of this work is to analyse problematic or unclear relationships between copyright and new civil code legislation such as e.g. conception of a work protected by copyright in light of new definition of material and immaterial matter or shared principles of moral rights . After that the thesis offers a base for future relationships arrangement between copyrights and civil law in terms of a revision of a fundamental...