Toronto Copyright Lawyer Discusses Author Rights and Moral Rights in Canada

What Are Moral Rights?

Introduction

Moral Rights (Sometimes called Author’s Rights) are rights granted exclusively to authors of works  under the Copyright Act ( R.S., 1985, c. C-42).  Moral Rights are distinguished from the copyrights that belong to copyright owners (who may or may not be the author of the work).  Section 14.1 of the Copyright Act defines moral rights as follows:

14.1 (1) The author of a work has, subject to section 28.2, the right to the integrity of the work and, in connection with an act mentioned in section 3, the right, where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous.

Infringement of moral rights is  defined in Section 28.1 of the Copyright Act as follows:

28.1 Any act or omission that is contrary to any of the moral rights of the author of a work is, in the absence of consent by the author, an infringement of the moral rights.

Thus, moral rights can be thought of as two distinct rights.  First The right to the integrity of the work.  Second, the right to be or not be associated with a work.

The Right to the Integrity of a Work

The right to the integrity of the work is elaborated in section 28.2 of the Copyright Act as follows:

28.2 (1) The author’s right to the integrity of a work is infringed only if the work is, to the prejudice of the honour or reputation of the author,

(a) distorted, mutilated or otherwise modified; or

(b) used in association with a product, service, cause or institution.

(2) In the case of a painting, sculpture or engraving, the prejudice referred to in subsection (1) shall be deemed to have occurred as a result of any distortion, mutilation or other modification of the work.

(3) For the purposes of this section,

(a) a change in the location of a work, the physical means by which a work is exposed or the physical structure containing a work, or

(b) steps taken in good faith to restore or preserve the work

shall not, by that act alone, constitute a distortion, mutilation or other modification of the work.

Thus the right to the integrity of the work is violated where the work has been modified in some way or used in association with a product, service, cause, or institution and the act is to the prejudice of the honour or reputation of the author. A modification or distortion of a work alone (other than of a sculpture, engraving or painting) is not enough to prove an infringement of moral rights.  The author must show that the modification is prejudicial  to the honour or reputation of the author.  Subsection (2) relieves a sculptor, engraver or painter of the burden of proving prejudice.   Any distortion, mutilation or modification of a sculpture, engraving or painting is deemed to be to the prejudice of the honour or reputation of the author.

Subsection (3) sets out the circumstances under which distortion will not have occurred: where there has been a change in the location displaying the work, or a change in the physical means by which it is displayed, or where steps have been taken in good faith to preserve the work.

The courts have elaborated on the right to the integrity of the work on a number of occasions.  In Snow v. The Eaton Centre Ltd. et al. (1982), 70 C.P.R. (2d) 105 (Ont. H.C.J.), Michael Snow, the artist who created the “flight stop” sculpture in Toronto’s Eaton Centre featuring 60 geese sued the shopping mall after ribbons had been placed around the neck of each goose in time for a Christmas display. The artist argued that the integrity of “flight stop” as a naturalistic composition was infringed by the “ridiculous” addition of the ribbons, and sought an injunction for the removal of the ribbons.

Justice O’Brien of the Ontario High Court of Justice held that the words “prejudicial to [the author’s] honour and reputation,” in section 28.2(1) involves a certain subjective element or judgment on the part of the author, so long as it is reasonably arrived at.  In other words, the author’s concern for the integrity of the work must be reasonable.  Snow was well-respected within the international artistic community, and the Court weighed his opinion together with opinions of other artists who were knowledgeable in this field, to find that the concern for Snow’s reputation was reasonable.  The Court held that the addition of the ribbons prejudiced the author’s honour and reputation, and amounted to moral rights infringement. The Court granted the injunction.

In Prise de Parole Inc. v. Guerin, Editeur Ltee, [1995] F.C.J. No. 1583 (F.C.T.D.), aff’d, [1996] F.C.J. No. 1427 (F.C.A.), the outcome was different. Justice Denault of the Federal Court of Canada, Trial Division dismissed an action by a publisher after an editor published various extracts of the author’s original work entitled “La vengeance de l’original.”  Even though the extracts featured pieces of the work in the wrong order, thereby changing the plot, the Court held that there had been no modification such that was to the prejudice of the author’s honour or reputation.

The Court clarified what an author must show, in order to find infringement of the right of integrity.

I note that section 28.2(1) does not require the plaintiff to prove prejudice to his honour or reputation; rather, it must be proved that the work was distorted, mutilated, or otherwise modified “to the prejudice of the honour or reputation of the author.” In my view, this nuance justifies the use of a subjective criterion – the author’s opinion – in assessing whether an infringement is prejudicial […] However, in my view, the assessment of whether a distortion, mutilation, or other modification is prejudicial to an author’s honour or reputation also requires an objective evaluation of the prejudice based on public or expert opinion.

In the Prise de Parole Inc. case, unlike the Snow case, the author of the work could not prove that the work was distorted, mutilated or otherwise modified to the prejudice of his honour or reputation, among the minds of the publishing industry.  Therefore, there was no infringement of his moral rights.

In Ritchie v. Sawmill Creek Golf & Country Club Ltd. et al. (2003), 27 C.P.R. (4th) 220 (Ont. Sup. C.J.), aff’d [2004] 35 C.P.R. (4th) 163 (Ont. Sup. C.J. Div. Ct.), a similar result occurred. A photographer had taken photographs of a country club in the hopes of securing a contract to refurbish and maintain the resort’s website. The photographer had presented the photographs he took to the owner of the resort, as a gift.  When the resort later declined to hire the photographer to design the website, and instead used the photographs for its website, the photographer sued the resort for copyright infringement.

The photographer argued, in part, that the resort infringed his moral rights in the photographs by enlarging the photographs without his permission. Justice Ducharme of the Ontario Superior Court of Justice found no distortion, mutilation or other modification such that would cause prejudice to the plaintiff’s honour or reputation.  In arriving at this conclusion, the Court again distinguished this case from the Snow case, and pointed out that the photographer in this case brought no collaborative evidence, and there were no other opinions supporting his position concerning the enlargement of the photographs.

The Right to Be or Not Be Associated With a Work

Section 14.1 of the Copyright Act also grants the author of a work the right to be or not be associated with a work.  This right is not absolute and is qualified in a very important way.  As section 14.1 clearly states: the right exists only “where reasonable in the circumstances”.  In other words, a court is required to look at the surrounding circumstances and assess whether it is reasonable for the author to be associated with the work.   Thus the omission of the author’s name form a work will not be enough to prove an infringement of moral rights.  The author must also show that it is reasonable to have the author’s name associated with his work.

In the Ritchie case, Justice Ducharme shed light on the meaning of the words “where reasonable in the circumstances”. The Court held that the photographer could no longer reasonably expect to be associated with the photographs after he called the RCMP in an attempt to have the website shut down. The resort had paid the photographer for other photographs he had taken during a wedding at the resort, and the photographs forming the subject of the lawsuit had been a gift to the resort.  Therefore, there were no reasonable circumstances giving rise to the right to be associated with the work, and thus there had been no infringement of the author’s moral rights.

Waiver of Moral Rights

Moral rights always rest with the author of a work, as opposed to the owner of the work.  Moral rights cannot be assigned to someone else like a copyright can.

While moral rights cannot be assigned, they can be waived, as provided for by section 14.1(2) of the Copyright Act. This means an author can choose not to exercise the right to be associated with the work, the right to preserve the integrity of the work, or the right to remain anonymous. This may be done in writing, but it need not be, as a waiver of moral rights may be implied, where the circumstances require .

Conclusion

Moral rights are among the many rights that belong to an author of a creative work.  These rights are unique in that they cannot be assigned to someone else, in the way that copyrights can. The determination of moral rights infringement will depend on the actions or inactions towards the work, and the surrounding circumstances of the claim.