The Cranky Copyright Book

The Cranky Copyright Book brings you a perspective from outside the U.S., the source of nearly all copyleftism and copyright reform. (American dominance of the copyright discourse is so pervasive that even Canadians think they have “fair-use rights,” sort of the way they think they “get Mirandized” if arrested and can later “take the Fifth” in court.)

• The sole non-American of any note in the debate, Michael Geist of Ottawa, advocates for U.S.-style enhancements to Canadian law (as through the addition of actual fair use).
• The Creative Commons movement started in the United States and exports its American cultural product to other countries. (Isn’t that exactly what the Hollywood movie industry does?)

Because the discussion has been obsessed with U.S. law and practice, it isn’t surprising that individual creators’ rights have been forgotten. That’s because Americans have fewer creator rights than people in other countries. How can this be true in the land of personal freedom?

U.S. copyright law has no actual clause that provides moral rights. Those rights have been read in via other laws, including laws protecting visual artists in some states. But the U.S. has even exempted itself from moral-rights provisions of international treaties. While there are small residues of moral rights to be found here and there in America, they aren’t guaranteed by statute and by custom as they are in other countries.

That means the individual creator, the one protected by moral rights, has been left out.

What are moral rights?

The term, for which we often use the French equivalent droit moral, gives creators the right to retain their authorship of a work or remain anonymous. That means you can’t claim a work was created by somebody else. Crucially, moral rights also allow creators to prevent the desecration or substantial alteration of their works.

Outside the American tradition, a case can be made – I’m going to make it – that preventing people from duplicating your work isn’t the core of copyright; moral rights are. To exaggerate slightly, moral rights are the “right” in the word copyright. Moral rights tell us that not only works are protected by copyright but so are the people who make them.

This distinction effectively does not exist in the land that brought us the two opposing poles of the existing copyright discourse. What’s needed – what Americans especially need – is an outside perspective, one that takes moral rights as a starting point and imagines how copyright law could secure and expand on those rights in the 21st century.