The Study On The Moral Rights Of Authors In The Common Law

Considering the moral rights as a kind of legal right just like the economic rights,the countries of common law s establish the moral rights on the base of economicstimulus theory, which is fundamentally different from human rights or the rights ofpersonality theories in the countries of statutory law. Under the guidance of this theory,the moral rights rules stipulated in common law countries are practical and flexible,which protect spiritual interests and public interests at the same time, and is inaccordance with the industry characteristics and business practices while meeting thebasic demands of economic development. This reflects the distinctive characteristicsof copyright legislation in the countries of common law system. At present, China’scopyright law is about to be amended. Many experts and scholars think the author’smoral rights system should be modified. The author holds the view that the legislativeexperience in common law countries can be learned to make the copyright legislationin our country more focused on and closer to the reality demands. In view of this, thispaper analyzes and studies the thought of author’s moral rights, the legislationdevelopment and the system of rights in common law countries, on the base of whichthe author sums up the developing rules and make recommendations to reconstruct theauthor’s moral rights system in our country.This paper is divided into three sections. The first section focuses on the ideological system of moral rights in common law countries. The second sectionfocuses on system of moral rights in common law countries. The third section focuseson the construction of moral rights system in China.The first section contents two chapters. Chapter I analyzes the development ofthe thoughts of moral rights in common law countries. The British copyrightlegislation is the core of the moral rights system in common law countries. Therefore,we must focus on the analysis and research of the development of the moral rightsthought in Britain. Britain is located in Europe. Before eighteenth Century, the Britishdomestic moral rights shared the same development trend with other countries ofcontinental Europe. Since pre-printing times, the public has been approved of theauthor’s personal rights. Since concession period, the British concession system wasvery strong representative and influential, which provided a basis for the developmentof spiritual rights thought. After the development of the theory of natural rights, thedevelopment of moral rights in common law countries and statutory law countriesgradually went towards different directions. After the Europe revolution and theEnlightenment, France and Germany, as the representative of the statutory lawcountries, gradually accepted the concept of human rights and the personality rights.In those countries, moral rights are deemed as a natural right, and the protection ofmoral rights is the way to protect the author’s the basic personality rights. As the resultof the discussion on the nature of copyright, the copyright was gradually establishedas a statutory right, and the economic incentive theory was seemed as the core oflegislation system.Chapter II analyzes the evolution of the legislative system of the moral right inthe common law courtiers with the Great Britain and the U.S. as representatives.Although Great Britain entered the Berne Convention quite early, before the nineteeneighties, the copyright legislation in Great Britain has not established acomprehensive moral rights system, simply providing to protect the reputation fromharm, and to prohibit false authorship. Bowing to international pressure and Europeanintegration, in1988the Great Britain finally formally established complete moralrights system in copyright legislation. Like the Great Britain, the domestic legislation of copyright in United States had no provisions on moral rights for a long time. It wasviewed as sufficient to protect moral rights through the common law and the state law.There was no need to take the venture to introduce moral rights into legislation, whichis likely to destroy the legal system and to damage the economic interests of theUnited States. With the influence of integration, the United States of America finallychose to join the Berne Convention. As a result, the domestic legislation should beamended in accordance with requirements of the convention to establish the moralrights system. In1990, the United States passed the “Visual Artists Rights Act ", theformally establishing moral rights system in the United States. However, thelegislation only provided limited protection.The second section contents three chapters. Chapter I mainly discusses the rightof authorship. The contents and characteristics of the right of authorship are asfollows. First of all, according to the common law copyright legislation, the right ofauthorship is only applicable to specific works. For example, in the UK the right ofauthorship is not applicable to computer programs, works of employment. In theUnited States, the right of authorship is only applicable visual art works. Second, theright of authorship applies to specific behaviors. For example, in the UK the right ofauthorship of writing, drama, music, art, film and other works are applicable todifferent behavior. The applicable behaviors are in line with the characteristics of theindustry. Third, the exercise of the rights must meet certain conditions. The authorneeds to make it clear that he means to claim the right of authorship. Fourth, based onthe theories of economic incentives and public interest, the principle of the exceptionof the right of authorship is established.Chapter II mainly discusses the right of integrity. Provisions on the right ofintegrity in common law system are mainly reflected in the following aspects. First,the requirements for the right of integrity are divided into two levels. There must bedisparaging of works, including distortion and tampering. And there must bedetrimental to the reputation. Second, according to different types of work, the lawprovides different behavior applied to the right of integrity. Third, the legislationstipulates the exceptions to rights. The right of integrity is not applicable to certain works. Certain behaviors do not constitute infringement.Chapter III mainly discusses quasi moral rights in common law legislation.While providing the right of authorship and the right of integrity according to therequirements of Berne Convention, some countries of common law system alsoprovide other moral rights. Mainly, there are two kinds of rights, namely the right ofprohibiting false authorship and the right of privacy of photos and the movies.According to the right of prohibiting false authorship, everyone has the right to refuseto be marked as the author if he does not create the work. The subject of this right isnot limited to the author, thus it is not a kind of moral rights in the strict sense. Toapply this right, there must be the so-called personality link between the work and theperson whose name is falsely marked. The other kind of quasi moral rights is the rightof privacy of photos and movies. Only a few countries provide this right, which is nota kind of moral rights in a strict sense. The nature of this right is personality right. Thework must be created for the dual purpose of personal and family based on thecommission.The third section contents three chapters. Chapter I analyses the regulations onmoral rights in Copyright Law of China. The author thinks the problems in the currentlaw regarding the moral rights are as follows. First, definition of the right ofpublication is not clear. Second, provisions on false attribution behavior are absent.Third, the right of alteration and the right of integrity are established independently,which is not reasonable. Fourth, the legislation is lack of exception to moral rights.Chapter II is to reconstruct the moral rights system of copyright law in China.According to the forgoing analyze of the thought and system of moral rights incommon law countries, on the base of the reality in China, the author puts forward thecorresponding solutions and relevant legislative proposals to improve the copyrightlegislation of moral rights system.