Research On Moral Rights

Moral Rights in works are ones of the indispensable and theoretical problems in the field of copyrights legal system. The international study in this area has experienced hundreds of year’s accumulation. However, there are less systematical research and interpretation in China since our studies lag behind the paces of other countries. It is a pity to find that most scholars insist on discussing certain questions from the view of copyrights’particularity, and departing the character of moral rights from that of general personality rights.In my opinion, these achievements incline to garble of a statement, which limits their explanatory effect and cannot provide good guide for the practice. In order to make up of these defects, besides considering the copyrights’particularity, this dissertation is trying to study moral rights based on the basic theories of civil law. Among the whole paper, the author uses comparative analysis, empirical analysis, historical analysis and case analysis to give an omnibearing view of moral rights.In addition to the foreword, there are six parts and the total amount is about 200,000 words.PartⅠinvolves in the origin and development of moral rights. In civil law system countries, moral rights are kinds of authors’rights and the works are considered as creation of authors’inner spirits or externalization of authors’personalities. In the meantime, the author can earn property interests from the rights. This is the reason that civil law system separates copyrights into moral rights and property rights and both of them are in relation of interdependence and mutual promotion. In common law system, the rights fall into the category of property rights. As to the spiritual rights related to the property interests, common law countries are used to applying the following rule such as breach of contracts, duress, misrepresentation, infringement of privacy rights, unfair competition and so on to resolve the disputes. Nevertheless, with the influence of international treaties drafted by most of civil law countries, some common law countries have to admit several moral rights to meet the requirements of treaties. Even with the compromise, the common law countries still have a lower protection level compared to the counterpart of civil law countries. PartⅡexplores character of moral rights. As to the character of moral rights, there are four doctrines among Chinese scholar circles:abstract personality rights doctrine, rights of paternity doctrine, general personality rights doctrine and property rights doctrine. All these doctrines are always focusing on one aspect of moral rights and ignoring details of essential civil rights, which brings some defects in logical reasoning. They begin their demonstration from the prior hypothesis that the civil rights system is closed and moral rights are absolutely different with general rights. This paper criticizes these doctrines and arranges moral rights as equal as general personality rights and rights of paternity after analysis of the definition and character of personality rights. Moreover, the paper discusses the level of Moral rights among the civil rights structure, and testifies the justification and values its independence.Part III addresses details of moral rights. First, we should draft the content of publication rights and legal effect after publication. Publication rights include not only the rights of decision (whether, when, where and how to show to the public), but also the rights of prohibition (prohibiting the works or the content of the works to the public). Furthermore, the paper also discusses the execution and the subject of the publication rights. Second, the right of authorship is divided into two aspects of the positive and the negative. Authorship ties the author and the work, so the right of authorship has close relation with the author’s interests and public interests. Positive right of authorship is concerned about whether to sign on the original, the duplicate or other copies, and how to sign, and whether to change the signature. The paper also discusses whether signature sequence relates to the right of authorship and how to execute the rights of collaborated works. Negative right of authorship is concerned about prohibition of non-authors and dilution of author status. Moreover, the paper considers that an infringement exists when a non-author signs on the work even he was authorized by the author. At last, sibyl attack should be granted as infringement of general personality rights. Third, it is valuable to keep rights of revision of independence status. The paper casts a doubt on the idea of denying the revision right and suggests that such rights could not be covered by right of intergrity of a work and rights of adaption. The regulation should provide a window for the author when he changes his idea and wants to update by modifying his work, which is consistent with the principle of creation freedom. Fourth, rights of keeping integrity of a work are helpful to protect spirits value except the property interests. Undue distortion or change would hurt the author’s spirit interests. There are two demonstrations under this right protection:(1) distortion and misrepresentation, (2) to hurt the author’s spirit interests during the works’use process even there is no any change on the content. This paper thinks that two elements are important to discern the infringement. One is action of distortion and misrepresentation and the other is misapprehension of the public from the distortion and misrepresentation. However, damage of the author’s fame and reputation is not necessary to affirm the infringement.PartⅣdiscusses limitation of Moral rights. Copyrights system should balance the interests among the author, the user and the public interest. Therefore, it is essential to limit the author’s rights when the legislator allocates the risks. This paper discusses the protection status limitation of the right of authorship, the right of revision and right of integrity of a work from the view of personal interests before one’s death. From public interests, free press control would influence some moral rights. Other legal rights may limit moral rights such as ownership, creditor’s rights, general personality rights and copyrights. These rights are specially related to certain aspect of moral rights since they only conflict with some detail content of Moral rights.PartⅤexamines protection of moral rights. Moral rights focus on spirit interests arousing from creation of the works, and the protection rules are important for effective execution of the system. Corresponding to infringement of moral rights, civil liabilities demand different requirements. So basis of claim will provide a relatively precise way to set the requirements. The protection of rights in Rem and the creditor’s claims protection are traditional classification in the civil law theory. And claim of rights in Rem and claim of obligatory rights are often used when rights in Rem are infringed correspondence with the subject’s claim. Claim of rights in Rem based on rights in Rem which are absolute rights and rights of eminent domain. Moral rights is one branch of personality rights which have the same character as rights in Rem, so the claim in Rem rule can be applied by analogy. Since essences of claim of rights in Rem and claim of obligatory rights share few common points, we should draw a clear line between them to allocate civil liabilities. Our current regulations list stopping infringement, elimination of negative effects, expression of apology as civil remedies, and no term concerns about spiritual damages. This paper supports to add spiritual damages for infringement of Moral rights to match the main protective object of spirit interests.Part VI is concerned with elaborating the moral rights in China. The suggestion includes clarifying character of moral rights, drafting contents of moral rights, listing restriction of moral rights, setting executive conditions, consummating the legal system, eliminating current contradiction of terms, etc.