HAVE THE BERNE CONVENTION’S MORAL RIGHTS PROVISIONS BEEN ACCURATELY IMPLEMENTED IN NATIONAL LAWS? A COMPARATIVE STUDY OF THE UNITED KINGDOM, INDIA, AND THE UNITED STATES

Abstract

Historically, in civil law jurisdictions, an attack on a creator’s work was deemed to be an attack on the creator’s personality. Hence, in such jurisdictions, copyright law aims to protect a creator from attacks to their personhood. However, in common law jurisdictions, many academics argue that copyright law has been used as an incentive to urge creators to generate creative content. Hence, in contrast to the civil law custom, common law copyright customs primarily aimed to facilitate the dissemination of content to the public. This lack of focus on authors’ rights in common law jurisdictions has witnessed change over the past century. Notably, during the development of the Berne Convention, starting in 1886, followed by successive amendments, common law jurisdictions have absorbed the focus on authors from civil law sources. These have later morphed into the modern law of moral rights. 

Moral rights have been broadly described as the legal link that allows authors to retain control over the integrity of their work. The moral rights provisions of the Berne Convention 1886 have been repeatedly noted in academia for its improper harmonisation in national laws. While the Convention establishes a standard of minimum rights, it is visible that the threshold for moral rights in some key common law jurisdictions is disproportionately high. This results in greater obstacles for authors/creators to claim moral rights, notably that of integrity and paternity. This paper notes these shortcomings with special reference to some key common law jurisdictions and advocates the only solution to a discrepant national system — greater harmonisation at a local level.