Study on the Moral Rights of Attribution and Integrity, 7870-7875 [2017-01294]
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Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Notices
In accordance with the
provisions of the Federal Advisory
Committee Act (FACA), and after
consultation with the General Services
Administration, the Secretary of Labor
is renewing the charter for the Maritime
Advisory Committee for Occupational
Safety and Health. The Committee will
better enable OSHA to perform its
duties under the Occupational Safety
and Health Act (the OSH Act) of 1970.
The Committee is diverse and balanced,
both in terms of segments of the
maritime industry represented (e.g.,
shipyard employment, longshoring, and
marine terminal industries), and in the
views and interests represented by the
members.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Amy Wangdahl, Director, Office of
Maritime and Agriculture, Directorate of
Standards and Guidance, U.S.
Department of Labor, Occupational
Safety and Health Administration,
Room N–3609, 200 Constitution Avenue
NW., Washington, DC 20210; telephone:
(202) 693–2066.
Signed at Washington, DC, on January 13,
2017.
Jordan Barab,
Acting Assistant Secretary of Labor for
Occupational Safety and Health.
[FR Doc. 2017–01407 Filed 1–19–17; 8:45 am]
BILLING CODE 4510–26–P
LIBRARY OF CONGRESS
U.S. Copyright Office
[Docket No. 2017–2]
Study on the Moral Rights of
Attribution and Integrity
U.S. Copyright Office, Library
of Congress.
ACTION: Notice of inquiry.
AGENCY:
The
Committee will advise OSHA on matters
relevant to the safety and health of
employees in the maritime industry.
This includes advice on maritime issues
that will result in more effective
enforcement, training, and outreach
programs, and streamlined regulatory
efforts. The maritime industry includes
shipyard employment, longshoring,
marine terminal, and other related
industries, e.g., commercial fishing and
shipbreaking. The Committee will
function solely as an advisory body in
compliance with the provisions of
FACA and OSHA’s regulations covering
advisory committees (29 CFR part 1912).
The United States Copyright
Office is undertaking a public study to
assess the current state of U.S. law
recognizing and protecting moral rights
for authors, specifically the rights of
attribution and integrity. As part of this
study, the Office will review existing
law on the moral rights of attribution
and integrity, including provisions
found in title 17 of the U.S. Code as well
as other federal and state laws, and
whether any additional protection is
advisable in this area. To support this
effort and provide thorough assistance
to Congress, the Office is seeking public
input on a number of questions.
DATES: Written comments must be
received no later than 11:59 p.m.
Eastern Time on March 9, 2017. Written
reply comments must be received no
later than 11:59 p.m. Eastern Time on
April 24, 2017. The Office may
announce one or more public meetings,
to take place after written comments are
received, by separate notice in the
future.
Authority and Signature
ADDRESSES:
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SUPPLEMENTARY INFORMATION:
Jordan Barab, Acting Assistant
Secretary of Labor for Occupational
Safety and Health, U.S. Department of
Labor, 200 Constitution Avenue NW.,
Washington, DC 20210, authorized the
preparation of this notice pursuant to
Sections 6(b)(1), and 7(b) of the
Occupational Safety and Health Act of
1970 (29 U.S.C. 655(b)(1), 656(b)), the
Federal Advisory Committee Act (5
U.S.C. App. 2), Section 41 of the
Longshore and Harbor Workers’
Compensation Act (33 U.S.C. 941),
Secretary of Labor’s Order 1–2012 (77
FR 3912, Jan. 25, 2012), and 29 CFR part
1912.
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SUMMARY:
For reasons of government
efficiency, the Copyright Office is using
the regulations.gov system for the
submission and posting of public
comments in this proceeding. All
comments must be submitted
electronically. Specific instructions for
submitting comments will be posted on
the Copyright Office Web site at https://
www.copyright.gov/policy/moralrights/
comment-submission/. To meet
accessibility standards, all comments
must be provided in a single file not to
exceed six megabytes (MB) in one of the
following formats: Portable Document
File (PDF) format containing searchable,
accessible text (not an image); Microsoft
Word; WordPerfect; Rich Text Format
(RTF); or ASCII text file format (not a
scanned document). All comments must
include the name of the submitter and
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any organization the submitter
represents. The Office will post all
comments publicly in the form that they
are received. If electronic submission of
comments is not feasible due to lack of
access to a computer and/or the
Internet, please contact the Office, using
the contact information below, for
special instructions.
FOR FURTHER INFORMATION CONTACT:
Kimberley Isbell, Senior Counsel for
Policy and International Affairs, by
email at kisb@loc.gov or by telephone at
202–707–8350; or Maria Strong, Deputy
Director for Policy and International
Affairs, by email at mstrong@loc.gov or
by telephone at 202–707–8350.
SUPPLEMENTARY INFORMATION:
I. Background
The term ‘‘moral rights’’ is taken from
the French phrase droit moral, and
generally refers to certain non-economic
rights that are considered personal to an
author.1 Chief among these are the right
of an author to be credited as the author
of his or her work (the right of
attribution), and the right of an author
to prevent prejudicial distortions of the
work (the right of integrity). These rights
have a long history in international
copyright law, dating back to the turn of
the 20th century when several European
countries included provisions on moral
rights in their copyright laws.2 A
provision on moral rights was first
adopted at the international level
through the Berne Convention for the
Protection of Literary and Artistic
Works (‘‘Berne Convention’’) during its
Rome revision in 1928.3 The current
text of article 6bis(1) of the Berne
Convention states: ‘‘Independently of
the author’s economic rights, and even
after the transfer of the said rights, the
author shall have the right to claim
authorship of the work and to object to
any distortion, mutilation or other
modification of, or other derogatory
action in relation to, the said work,
which would be prejudicial to his honor
or reputation.’’ 4
In contrast to the early adoption of
strong moral rights protections in
1 In this Notice, we use the general term ‘‘author’’
to include all creators, including visual artists and
performers.
2 See Sam Ricketson & Jane C. Ginsburg,
International Copyright and Neighboring Rights:
The Berne Convention and Beyond ¶¶ 10.03–.04, at
587–89 (2d ed. 2006).
3 See Mihaly Ficsor, World Intellectual Property
´
Organization, Guide to the Copyright and Related
Rights Treaties Administered by WIPO and
Glossary of Copyright and Related Rights Terms ¶
BC-6bis, at 44 (2003).
4 Berne Convention for the Protection of Literary
and Artistic Works art. 6bis(1), Sept. 9, 1886, as
revised July 24, 1971, and as amended Sept. 28,
1979, S. Treaty Doc. No. 99–27 (1986).
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Europe, the United States’ experience
with the concept of moral rights is more
recent. The United States did not adopt
the Berne Convention right away, only
joining the Convention in 1989.5 At that
time, the United States elected not to
adopt broad moral rights provisions in
its copyright law, but instead relied on
a combination of various state and
federal statutes to comply with its Berne
obligations.6
In July 2014, the Subcommittee on
Courts, Intellectual Property, and the
Internet of the House Judiciary
Committee held a hearing that focused
in part on moral rights for authors in the
United States as part of its broader
review of the nation’s copyright laws.7
At that hearing, the Chairman of the
House Judiciary Committee,
Representative Bob Goodlatte, noted
that ‘‘we should consider whether
current law is sufficient to satisfy the
moral rights of our creators or, whether
something more explicit is required.’’ 8
The Ranking Member of the
Subcommittee, Representative Jerrold
Nadler, also indicated his interest in a
further evaluation of the status of moral
rights in the United States, asking ‘‘how
our current laws are working and what,
if any, changes might be necessary and
appropriate.’’ 9 Register of Copyrights
Maria Pallante recommended further
study of moral rights in her testimony
before Congress at the end of the twoyear copyright review hearings
process,10 at which time the Ranking
Member of the House Judiciary
Committee requested that the Office
undertake this study.11 As part of the
preparation for this study, the Copyright
Office co-hosted a day-long symposium
on moral rights in April 2016 in order
to hear views about current issues in
this area. The Office is now
commencing a formal study on moral
rights and soliciting public input.
5 Berne Convention Implementation Act of 1988,
Public Law 100–568, 102 Stat. 2853 (‘‘BCIA’’).
6 See discussion on the BCIA infra notes 15–23
and accompanying text.
7 See Moral Rights, Termination Rights, Resale
Royalty, and Copyright Term: Hearing Before the
Subcomm. on Courts, Intellectual Prop., & the
Internet of the H. Comm. on the Judiciary, 113th
Cong. (2014) (‘‘Moral Rights Hearing’’).
8 Moral Rights Hearing at 4.
9 Id.
10 Register’s Perspective on Copyright Review:
Hearing Before the H. Comm. on the Judiciary,
114th Cong. 34–35 (2015) (written statement of
Maria A. Pallante, Register of Copyrights and Dir.,
U.S. Copyright Office) (‘‘Register’s Perspective
Hearing’’).
11 Register’s Perspective Hearing at 49 (statement
of Rep. John Conyers, Ranking Member, H. Comm.
on the Judiciary).
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A. Moral Rights in the United States
Prior to Implementation of the Berne
Convention in 1989
In the late 1950s, the Copyright Office
and Congress reviewed the issue of
moral rights as part of the larger,
comprehensive review of the copyright
laws leading to a general revision of the
1909 Copyright Act.12 In support of the
review, William Strauss completed a
study for the Office entitled ‘‘The Moral
Right of the Author’’ in 1959.13 The
report found that U.S. common law
principles, such as those governing tort
and contract actions, ‘‘afford an
adequate basis for protection of [moral]
rights’’ and can provide the same
protection given abroad under the
doctrine of moral rights.14
Later, Congress considered the
specific question of ‘‘whether the
current law of the United States is
sufficient, or whether additional laws
are needed, to satisfy [Berne article
6bis’s] requirements.’’ 15 The majority of
those who testified before Congress
argued against any change to U.S. law
concerning an artist’s right to control
attribution or any alteration to his
creation, stating that current U.S. law
was sufficient.16 Indeed, WIPO Director
´ ´
General Dr. Arpad Bogsch explained to
Congress that the United States did not
need to make any changes to U.S. law
to meet the obligations of article 6bis.17
12 As part of the consideration for possible
accession to the Berne Convention, the general
review of the 1909 Act took more than 20 years and
resulted in the 1976 Copyright Act.
13 See William Strauss, Study No. 4: The Moral
Right of the Author (1959), in Staff of S. Comm. on
the Judiciary, 86th Cong., Copyright Law Revision:
Studies Prepared for the Subcomm. on Patents,
Trademarks, and Copyrights of the Comm. on the
Judiciary, United States Senate: Studies 1–4, at 109
(Comm. Print 1960).
14 Strauss at 142. The report rejected the idea of
an ‘‘irreconcilable breach between European and
American concepts of protection of authors’
personal rights,’’ instead concluding that U.S. and
European courts generally arrived at the same
results in upholding the same rights or limitations
on those rights, just in different ways. Id. at 141–
42.
15 H.R. Rep. No. 100–609, at 33 (1988).
16 See S. Rep. No. 100–352, at 6 (1988); H.R. Rep.
No. 100–609, at 33 (1988).
17 See H.R. Rep. No. 100–609, at 37 (1988); S. Rep.
No. 100–352, at 10 (1988); see also Letter from Dr.
´ ´
Arpad Bogsch, Dir. Gen., World Intellectual Prop.
Org., to Irwin Karp, Esq. (June 16, 1987), reprinted
in Berne Convention Implementation Act of 1987:
Hearing on H.R. 1623 Before the Subcomm. on
Courts, Civil Liberties & the Admin. of Justice of the
H. Comm. on the Judiciary, 100th Cong. 213 (1987)
(‘‘In my view, it is not necessary for the United
States of America to enact statutory provisions on
moral rights in order to comply with Article 6bis
of the Berne Convention. The requirements under
this Article can be fulfilled not only by statutory
provisions in a copyright statute but also by
common law and other statutes.’’).
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Both the House and Senate Judiciary
Committees accepted this conclusion,18
finding that U.S. law met the
requirements outlined in the Berne
Convention’s article 6bis based on the
existing patchwork of laws in the
United States, including:
• Section 43(a) of the Lanham Act
relating to false designations of origin
and false descriptions, which could be
applied in some instances to attribution
of copyright-protected work.19
• The Copyright Act’s provisions
regarding protection of an author’s
exclusive rights in derivatives of his or
her works; 20 limits on a mechanical
licensee’s rights to arrange an author’s
musical composition; 21 and termination
of transfers and licenses.22
• State and local laws relating to
publicity, contractual violations, fraud
and misrepresentation, unfair
competition, defamation, and invasion
of privacy.23
B. Subsequent Developments After the
U.S. Implementation of the Berne
Convention
Since the United States’
implementation of the Berne
Convention over 25 years ago, there
have been a number of legal and
technological developments affecting
the scope and protection of moral rights.
In 1990, Congress passed the Visual
Artists Rights Act (VARA), codified at
section 106A of the Copyright Act, 24
18 See S. Rep. No. 100–352, at 9–10 (1988); H.R.
Rep. No. 100–609, at 37–38 (1988); see also S. Exec.
Rep. No. 100–17, at 55 (1988) (to accompany S.
Treaty Doc. No. 99–27 (1986)) (statement of John K.
Uilkema on behalf of Am. Bar Ass’n before the S.
Comm. on Foreign Relations) (‘‘Whether greater or
lesser moral rights per se should be the subject of
legislative consideration in the United States is a
question that is separate and apart from the Berne
adherence compatibility question.’’).
19 See 15 U.S.C. 1125(a).
20 See 17 U.S.C. 106(2).
21 See 17 U.S.C. 115(a)(2).
22 See 17 U.S.C. 203.
23 See H.R. Rep. No. 100–609, at 34 (1988).
Contract law is particularly important for authors to
control aspects of their economic and moral rights.
For example, the collective bargaining agreements
that govern the creation of major motion pictures
often contain explicit requirements with regards to
attribution for actors, writers, directors, and other
guilds. Many copyright sectors that involve
numerous authors and participants in the creative
process, such as filmed entertainment, business and
entertainment software, music production, and
book publishing, also rely on both employment
agreements and the work-for-hire doctrine to
determine ownership issues, which in turn may
include elements related to attribution and
integrity.
24 Visual Artists Rights Act (VARA) of 1990,
Public Law 101–650, 104 Stat. 5128–29 (codified at
17 U.S.C. 106A). In the Report accompanying H.R.
2690 (Visual Artists Rights Act of 1990), the House
Judiciary provided background information on the
Berne Convention and moral rights, noting that the
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which guarantees to authors of works of
‘‘visual arts’’ the right to claim or
disclaim authorship in a work and
limited rights to prevent distortion,
mutilation, or modification of a work.25
In contrast to how moral rights were
often adopted elsewhere, with VARA,
Congress identified specific instances in
which the limited rights could be
waived.26 As part of the legislation,
Congress also directed the Copyright
Office to conduct studies on the VARA
waiver provision and also on resale
royalties.27
In its 1996 report on the waiver
provision, the Office concluded it could
not make an accurate assessment of the
impact of VARA’s waiver provisions
because artists and art consumers were
generally unaware of moral rights and
recommended that in order for artists to
take advantage of their legal rights
under VARA, further education about
moral rights in the United States would
be necessary.28 The Office also made
observations about the implementation
of moral rights obligations in other
countries, finding that, of the laws
reviewed by the Office, only the moral
Congress at the time of the BCIA agreed that
existing federal and state laws were sufficient to
comply with the Berne Convention requirements,
but that ‘‘adherence to the Berne Convention did
not end the debate about whether the United States
should adopt artists’ rights laws, and the
Subcommittee on Courts, Intellectual Property, and
the Administration of Justice continued its review
of the issue in [hearings held] in June.’’ H.R. Rep.
No. 101–514, at 8 (1990). Congress cited the
‘‘critical factual and legal differences in the way
visual arts and audiovisual works are created and
disseminated’’ in support of providing additional
protections for visual artists. H.R. Rep. No. 101–
514, at 9 (1990).
25 See 17 U.S.C. 101 (definition of a ‘‘work of
visual art’’); § 106A(a)(1) (providing for the right of
attribution); § 106A(a)(3) (providing for the right of
integrity). Section 604 of VARA, codified at 17
U.S.C. 113, created special rules for removal of
works visual art incorporated into buildings. Unlike
Berne’s article 6bis, VARA’s protections only apply
to works of visual art.
26 See H.R. Rep. No. 101–514, at 18 (1990). VARA
permits authors to waive these rights only if
expressly agreed in a written instrument signed by
the author. See 17 U.S.C. 106A(e).
27 See Visual Artists Rights Act of 1990, Public
Law 101–650, 608, 104 Stat. 5128, 5132 (1990). The
Copyright Office’s 1992 study concluded there was
insufficient economic and copyright policy
justification to establish droit de suite in the United
States. See U.S. Copyright Office, Droit De Suite:
The Artist’s Resale Royalty xv (1992), https://
www.copyright.gov/history/droit_de_suite.pdf. In
2013, the Copyright Office responded to a
congressional request and issued a second report
which examined the changes in law and practice
regarding resale royalties, in both the United States
and abroad, since the 1992 report. See U.S.
Copyright Office, Resale Royalties: An Updated
Analysis (2013), https://www.copyright.gov/docs/
resaleroyalty/usco-resaleroyalty.pdf.
28 See U. S. Copyright Office, Waiver of Moral
Rights in Visual Artworks: Final Report of the
Register of Copyrights xiii, 186 (1996), https://
www.copyright.gov/reports/waiver-moral-rightsvisual-artworks.pdf (‘‘Waiver of Moral Rights’’).
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rights laws of the United Kingdom and
Canada contained express waiver
provisions.29
The Supreme Court’s 2003 Decision in
Dastar
In 2003, some scholars began to
question the strength of the U.S.
patchwork of protection as a result of
the U.S. Supreme Court’s ruling in
Dastar Corp. v. Twentieth Century Fox
Film Corp. (‘‘Dastar’’), which foreclosed
some attribution claims under section
43(a) of the Lanham Act.30 The Court
unanimously rejected an interpretation
of section 43(a) that would ‘‘require
attribution of uncopyrighted
materials.’’ 31 Citing VARA, the Court
said that when Congress has wanted to
provide an attribution right under
copyright law, ‘‘it has done so with
much more specificity than the Lanham
Act’s ambiguous use of ‘origin.’ ’’ 32 The
Court found that ‘‘origin of goods’’ is
most naturally understood as referring
to the source of a physical product, not
the person or entity that originated the
underlying creative content.33 In a wellknown sentence, Justice Scalia, writing
for the Court, stated that permitting a
section 43(a) claim for such
misattribution ‘‘would create a species
of mutant copyright law that limits the
public’s ‘federal right to copy and to
use’ expired copyrights.’’ 34
Some lower courts have read Dastar
as a broad prohibition on applying
federal trademark and unfair
competition laws in the realm of
copyright, regardless of whether the
copyrighted work remains under the
term of protection or has fallen into the
public domain.35 In contrast, some
scholars have argued that the Court did
not write federal trademark and unfair
29 Waiver
of Moral Rights at 183.
U.S. 23 (2003). Dastar involved the
distribution of an edited version of a 1949 broadcast
to which Twentieth Century Fox had owned the
copyright but which it failed to renew, placing the
work in the public domain. Dastar distributed
copies of the edited series listing Dastar and its
subsidiary as the producer and distributor of the
edited work, rather than Fox. Fox sued for reverse
passing off, claiming Dastar violated section 43(a)
of the Lanham Act’s prohibition against false
designation of origin.
31 Id. at 35.
32 Id.at 34.
33 See id. at 31–32.
34 Id. at 34 (internal quote marks omitted). The
Supreme Court left open the possibility of a
Lanham Act claim under section 43(a)(1)(B) where,
in advertising for a copied work of authorship, the
copier ‘‘misrepresents the nature, characteristics
[or] qualities’’ of the work. Id. at 38.
35 See, e.g., Kehoe Component Sales Inc. v. Best
Lighting Prods., Inc., 796 F.3d 576, 587 (6th Cir.
2015); Gen. Universal Sys., Inc. v. Lee, 379 F.3d
131, 148–49 (5th Cir. 2004); Zyla v. Wadsworth, 360
F.3d 243, 251–52 (1st Cir. 2004); Carroll v. Kahn,
No. 03–CV–0656, 2003 WL 22327299, at *5–6
(N.D.N.Y. Oct. 9, 2003).
30 539
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competition law out of the patchwork
entirely.36
Rights Management Information and
Moral Rights for Performers
Since implementation of the Berne
Convention, the United States has
joined two additional international
treaties that address moral rights—the
WIPO Copyright Treaty (WCT) and the
WIPO Performances and Phonograms
Treaty (WPPT). The WCT incorporates
the substantive provisions of Berne,
including those of article 6bis.37 Article
5 of the WPPT expands the obligations
of Contracting Parties to recognize the
moral rights of attribution and integrity
for performers with respect to their live
performances and performances fixed in
phonograms.38 Furthermore, both the
WCT and the WPPT include new
obligations concerning rights
management information (RMI).39 These
provisions protect new means of
identifying and protecting works while
also helping protect the rights of
attribution and integrity.40
The United States implemented its
WCT and WPPT obligations via
enactment of the 1998 Digital
Millennium Copyright Act (‘‘DMCA’’),41
and signed as a contracting party to both
treaties in 1999, three years before the
36 See, e.g., Jane C. Ginsburg, Moral Rights in the
U.S.: Still in Need of a Guardian Ad Litem, 30
Cardozo Arts & Ent. L.J. 73, 83–87 (2012); Justin
Hughes, American Moral Rights and Fixing the
Dastar ‘‘Gap,’’ 2007 Utah L. Rev. 659 (2007). At
least one commenter has argued that not only do
section 43(a)(1)(B) claims survive Dastar, but so do
some section 43(a)(1)(A) claims. See Hughes at 692–
95.
37 See WIPO Copyright Treaty art. 1(4), Dec. 20,
1996, 2186 U.N.T.S. 121 (‘‘WCT’’); see also
Summary of the WIPO Copyright Treaty (WCT)
(1996), WIPO, https://www.wipo.int/treaties/en/ip/
wct/summary_wct.html.
38 See WIPO Performances and Phonograms
Treaty art. 5(1), Dec. 20, 1996, 2186 U.N.T.S. 203
(‘‘WPPT’’). Like the Berne Convention, the WPPT
provides that the duration of protection shall be at
least for the term of economic rights and shall be
governed by national law. WPPT arts. 5(2)–(3).
39 See WCT art. 12; WPPT art. 19. WCT article 12
and WPPT article 19 define rights management
information to include identification of the author
and owner and terms of use of the work or sound
recording.
40 See J. Carlos Fernadez-Molina & Eduardo Peis,
´
The Moral Rights of Authors in the Age of Digital
Information, 52 J. Am. Soc’y for Info. Sci. & Tech.
109, 112 (2001) (explaining how the WIPO Internet
Treaties’ rights management information provisions
fit within the treaties and also are useful in
protecting moral rights).
41 Digital Millennium Copyright Act (DMCA),
Public Law 105–304, 103 122 Stat. 2860, 2863–76
(1998) (codified as amended at 17 U.S.C. 1201–
1205). The WIPO Internet Treaties were submitted
to Congress for advice and consent the previous
year, and the Senate voted to approve the Treaties
shortly before passage of the DMCA. See S. Treaty
Doc. No. 105-17 (1997); 105 Cong. Rec. S12,972–73
(daily ed. Oct. 21, 1998).
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treaties entered into force.42 Congress
added a new chapter 12 to title 17,
which contained two new provisions to
implement the treaties—section 1201,
which addresses technological
protection measures, and section 1202,
which protects rights management
information (called copyright
management information in U.S.
law) 43—but did not make any
additional changes, finding that ‘‘[t]he
treaties do not require any change in the
substance of copyright rights or
exceptions in U.S. law.’’ 44
Section 1202 includes prohibitions on
both providing false copyright
management information (‘‘CMI’’), and
removing or altering CMI.45 In addition
to facilitating the administration of an
author’s or right holder’s economic
rights, the CMI protections afforded by
section 1202 may have implications for
authors’ protection and enforcement of
their moral rights.46 However, two
aspects of section 1202 may limit its
usefulness as a mechanism to protect an
author’s moral rights. First, to be liable
under section 1202, a person who
removes copyright management
information must know both that they
have caused its removal and that such
removal is likely to cause others to
infringe the work.47 Second, while most
42 See WCT Notification No. 10: WIPO Copyright
Treaty: Ratification by the United States of
America, WIPO (Sept. 14, 1999), available at https://
www.wipo.int/treaties/en/notifications/wct/treaty_
wct_10.html; WPPT Notification No. 8: WIPO
Performances and Phonograms Treaty: Ratification
by the United States of America, WIPO (Sept. 14,
1999), available at https://www.wipo.int/treaties/en/
notifications/wppt/treaty_wppt_8.html.
43 The other sections of chapter 12 include
sections 1203 and 1204, which set forth available
civil remedies and criminal sanctions for violation
of sections 1201 and 1202, and section 1205, which
explicitly carves out federal and state laws affecting
Internet privacy. 17 U.S.C. §§ 1203–1205.
44 H.R. Rep. No. 105-551, pt. 1, at 9 (1998).
45 The term ‘‘copyright management information’’
in the Copyright Act is seen as a synonymous term
for ‘‘rights management information’’ as used in the
WCT and WPPT. See S. Rep. No. 105–190, at 11
n.18 (1998) (‘‘Rights management information is
more commonly referred to in the U.S. as copyright
management information (CMI).’’).
46 Section 1202 makes it an offense to
‘‘intentionally remove or alter any copyright
management information,’’ which includes the
name of a work’s author. 17 U.S.C. §§ 1202(b)(1),
(c)(2). See Jane C. Ginsburg, Have Moral Rights
Come of (Digital) Age in the United States?, 19
Cardozo Arts & Ent. L.J. 9, 11 (2001) (‘‘The DMCA
may contain the seeds of a more general attribution
right. . . .’’); see also Greg Lastowka, Digital
Attribution: Copyright and the Right to Credit, 87
B.U. L. Rev. 41, 69–73 (2007).
47 See 17 U.S.C. 1202(a)–(b); see also Stevens v.
Corelogic, No. 14-cv-1158, 2016 WL 4371549, at *5,
6 (S.D. Cal. July 1, 2016) (‘‘Under § 1202(b)(1),
Plaintiffs must present evidence that [defendant]
intentionally removed or altered CMI. . . . ’’ and
‘‘[a]lthough Plaintiffs need not show actual
infringement, the fact that there was none is
relevant to Plaintiffs’ burden to show that
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courts recognize section 1202 as
protecting against any removal of
attribution from works, a minority of
courts have limited section 1202 to
protect only against removal of
attribution that is digital or part of an
‘‘automated copyright protection or
management system.’’ 48
Recent International Developments
There have also been changes to the
landscape of moral rights protection
internationally since the U.S. acceded to
the Berne Convention in 1989. The
Copyright Office noted in its 1996 report
Waiver of Moral Rights in Visual
Artworks that, while statutory
recognition of the commonly recognized
moral rights—i.e., attribution and
integrity—is the norm internationally,
the strength of the moral rights laws
varied among Berne members, even
among those with the same basic legal
systems.49 For example, at the time of
the Report the United Kingdom required
an author or her heirs, in some cases, to
assert the right of paternity and was
generally considered to have adopted
one of the more restrictive approaches
to implementing moral rights.50
However, ten years later, in 2006, the
United Kingdom amended its moral
rights provision by extending to
qualifying performances the right to
[defendant] had a reasonable ground to believe it
was likely to happen.’’).
48 Compare Murphy v. Millennium Radio Grp.
LLC, 650 F.3d 295, 305 (3d Cir. 2011) (rejecting
argument that the definition of CMI under section
1202 is ‘‘restricted to the context of ‘automated
copyright protection or management systems’’’),
and Williams v. Cavalli S.p.A., No. CV 14–06659–
AB (JEMx), 2015 WL 1247065, at *3 (C.D. Cal. Feb.
12, 2015) (holding that ‘‘[t]he plain meaning of
§ 1202 indicates that CMI can include non-digital
copyright information’’), and Leveyfilm, Inc. v. Fox
Sports Interactive Media, LLC, 999 F. Supp. 2d
1098, 1101–02 (N.D. Ill. 2014) (noting that the
majority of courts have rejected a requirement for
CMI to be digital under section 1202), and Fox v.
Hildebrand, No. CV 09–2085 DSF (VBKx), 2009 WL
1977996, at *3 (C.D. Cal. July 1, 2009) (‘‘The plain
language of the statute indicates that the DMCA
provision at issue is not limited to copyright notices
that are digitally placed on a work.’’), with Textile
Secrets Int’l Inc. v. Ya-Ya Brand Inc., 524 F. Supp.
2d 1184, 1201 (C.D. Cal. 2007) (‘‘[T]he Court []
cannot find that the provision was intended to
apply to circumstances that have no relation to the
Internet, electronic commerce, automated copyright
protections or management systems, public
registers, or other technological measures or
processes as contemplated in the DMCA as a
whole.’’), and IQ Grp., Ltd. v. Wiesner Publ’g, LLC,
409 F. Supp. 2d 587, 597 (D.N.J. 2006) (holding that
‘‘[t]o come within § 1202, the information removed
must function as a component of an automated
copyright protection or management system’’). The
majority position seems to accord with statements
from the legislative history. See, e.g., S. Rep. No.
105–190, at 16 (1998) (‘‘CMI need not be in digital
form, but CMI in digital form is expressly
included.’’).
49 See Waiver of Moral Rights at 53.
50 See Waiver of Moral Rights at 47–51, 53.
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attribution and the right to object to
derogatory treatment of a work.51
The most recent international
development on CMI and moral rights
occurred four years ago at a Diplomatic
Conference in Beijing where WIPO and
its member states concluded a new
treaty on audiovisual performances.52
Similar to the approach of the WPPT,
the Beijing Treaty on Audiovisual
Performances also contains provisions
on CMI and moral rights for audiovisual
performers.53
Availability and Use of Licenses,
Contracts, and State Laws
Another part of the patchwork upon
which moral rights protection in the
United States relies is state contract law,
which allows authors to negotiate for
protection of their rights of attribution
and integrity through private ordering.
Since the United States’ accession to the
Berne Convention, a major change to
this area has been the emergence of
Creative Commons and its various
licenses that have simplified licensing
for all kinds of authors and users, large
and small. The CC license suites have
served to facilitate private ordering,
including for individual authors that
would not previously have been able to
afford the services of a lawyer to create
licenses to govern use of their works.54
51 See Performances (Moral Rights, etc.)
Regulations 2006, SI 2006/18, arts. 5–6 (UK).
52 See Beijing Treaty on Audiovisual
Performances, June 24, 2012, 51 I.L.M. 1214 (2012)
(‘‘Beijing Treaty’’).
53 See Beijing Treaty art. 5 (‘‘Moral Rights’’), art.
16 (‘‘Obligations Concerning Rights Management
Information’’). Negotiations to conclude this treaty
took more than a decade, with a major point of
contention involving the provision on contractual
transfers. See Beijing Treaty art. 12; see also Press
Release, WIPO, WIPO Diplomatic Conference
Opens in Beijing to Conclude Treaty on Performers’
Rights in Audiovisual Productions, WIPO Press
Release PR/2012/713 (June 20, 2012), available at
https://www.wipo.int/pressroom/en/articles/2012/
article_0012.html (noting that as far back as the year
2000 negotiators could not agree on the issue
involving transfer of rights, and a breakthrough
compromise occurred in June 2011). This treaty has
not yet entered into force, and the United States has
not yet ratified it. The Obama Administration has
submitted a legislative package to Congress in
support of U.S. implementation of the Beijing
Treaty. See Letter from Michelle K. Lee, Under
Sec’y Commerce for Intellectual Prop. & Dir., U.S.
Patent & Trademark Office, to Joseph R. Biden,
President of the Senate (Feb. 26, 2016), available at
https://www.uspto.gov/sites/default/files/
documents/Beijing-treaty-package.pdf (treaty
implementation package for the Beijing Treaty on
Audiovisual Performances which includes a
transmittal letter, Beijing Treaty Implementation
Act of 2016, and Statement of Purpose and Need
and Sectional Analysis).
54 Founded in 2001, Creative Commons offers
various open source content licenses. Creative
Commons Project, Cover Pages (Aug. 22, 2008),
https://xml.coverpages.org/creativeCommons.html.
These types of licenses were held to be governed
by copyright law rather than contract law in
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Currently there are over one billion
works licensed under Creative
Commons licenses, most of which
require attribution of the author.55
Changes in Technology to Deliver
Content and Identify Content
The evolution of technology in the
past few decades has also impacted the
availability of moral rights protections
for modern authors. Technology can
facilitate improved identification and
licensing of works with persistent
identifiers,56 while, at the same time, it
can also make it easier to remove
attribution elements and distribute the
unattributed works widely.57
mstockstill on DSK3G9T082PROD with NOTICES
II. Congressional Copyright Review and
This Study
As part of its effort to begin a dialogue
about moral rights protections in the
United States, the Copyright Office
organized a symposium entitled
‘‘Authors, Attribution, and Integrity:
Examining Moral Rights in the United
States,’’ which was held on April 18,
2016.58 The symposium served as a
Jacobsen v. Katzer, 535 F.3d 1373, 1380–83 (Fed.
Cir. 2008).
55 Creative Commons, https://
creativecommons.org/ (last visited Jan. 5, 2017)
(‘‘1.1 billion works and counting.’’).
56 For example, the PLUS Coalition has created an
image rights language to allow for global
communication of image rights information, and it
is currently developing an image registry that will
function as a hub connecting registries worldwide
and providing both literal and image-based
searches. PLUS Coalition, Comments Submitted in
Response to U.S. Copyright Office’s Apr. 24, 2015
Notice of Inquiry (Visual Works Study) at 1 (July
22, 2015) (noting that the Coalition’s unique image
rights language is meant to address the ‘‘challenges
[arising] from a present inability to ensure that any
person or machine encountering a visual work has
ready access to rights information sufficient to
allow the work to be identified, and sufficient to
facilitate an informed decision regarding the
display, reproduction and distribution of the
work’’).
57 Indeed, CMI is of particular interest to visual
artists who embed copyright information in their
works only to find it unlawfully stripped from
digital copies. This makes it difficult for potential
users to identify and contact the copyright owner
to obtain a license to use a work found online. See
Columbia University Libraries, Comments
Submitted in Response to U.S. Office’s Apr. 24,
2015 Notice of Inquiry (Visual Works Study) at 2
(July 23, 2015) (‘‘Rights metadata that includes
author attribution and source information would [ ]
facilitate subsequent re-uses of visual works while
at the same time support the interests of legitimate
copyright owners.’’).
58 The Office co-hosted this symposium with the
George Mason University School of Law and its
Center for the Protection of Intellectual Property.
Videos of the proceedings can be accessed on the
U.S. Copyright Office Web site event page at https://
www.copyright.gov/events/moralrights/. The official
transcript has been published by the George Mason
Journal of International Commercial Law. See
Symposium, Authors, Attribution, and Integrity:
Examining Moral Rights in the United States, 8 Geo.
Mason J. Int’l Com. L. 1 (2016), available at https://
www.georgemasonjicl.org/wp-content/uploads/
2016/08/Summer-Issue-2016.pdf.
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launching point for the issuance of this
Notice of Inquiry.
Seven sessions covered the historical
development of moral rights, the value
authors place on moral rights, the
various ways current law provides for
these rights, and new considerations for
the digital age. Participants, including
professional authors, artists, musicians,
and performers, discussed the
importance that copyright law generally,
and attribution specifically, plays in
supporting their creative process and
their livelihood.59 Leading academics
provided an overview of the scope of
moral rights and how countries,
including the United States, approach
these concepts. 60
Many participants identified the right
of attribution as particularly important
to authors, both from a personal and
from an economic perspective. For
example, participants cited the role of
copyright management information for
purposes of attribution, and discussed
the perceived strengths and limitations
of section 1202.61 Keynote speaker
Professor Jane Ginsburg posited ways to
strengthen the right of attribution.62
Others discussed the possibilities of
using non-copyright laws post-Dastar,63
as well as expressing concerns about
how potential moral rights-like causes
of action might interact with First
Amendment protections.64
Some participants asserted that the
current patchwork of laws, particularly
the availability of contract law, the work
for hire doctrine, and collective
bargaining agreements (available in
some industry sectors), provides
sufficient protection for moral rights
concerns.65 In contrast, several voices
59 See Session 4: The Importance of Moral Rights
to Authors, 8 Geo. Mason J. Int’l Com. L. 87, 90
(2016).
60 See Session 1: Overview of Moral Rights, 8 Geo.
Mason J. Int’l Com. L. 7 (2016).
61 See, e.g., Jane C. Ginsburg, Keynote Address,
The Most Moral of Rights: The Right to be
Recognized as the Author of One’s Work, 8 Geo.
Mason J. Int’l Com. L. 44, 48, 60–72 (2016); Session
4: The Importance of Moral Rights to Authors, 8
Geo. Mason J. Int’l Com. L. 87, 91–93 (2016)
(comments of Yoko Miyashita, Getty Images).
62 See Jane C. Ginsburg, Keynote Address: The
Most Moral of Rights: The Right to be Recognized
as the Author of One’s Work, 8 Geo. Mason J. Int’l
Com. L. 44, 72–81 (2016).
63 See, e.g., Session 2: The U.S. Perspective, 8
Geo. Mason J. Int’l Com. L. 26, 30–34 (2016)
(remarks of Duncan Crabtree-Ireland, SAG–AFTRA,
& Peter K. Yu, Tex. A&M Univ. Sch. of Law);
Session 6: New Ways to Disseminate Content and
the Impact on Moral Rights, 8 Geo. Mason J. Int’l
Com. L. 125, 139 (2016) (remarks of Stanley PierreLouis, Entm’t Software Ass’n).
64 See Session 5: The Intersection of Moral Rights
and Other Laws, 8 Geo. Mason J. Int’l Com. L. 106,
119–20 (2016) (remarks of Paul Alan Levy, Pub.
Citizen).
65 See Session 2: The U.S. Perspective, 8 Geo.
Mason J. Int’l Com. L. 26, 27–29 (2016) (remarks of
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criticized the limited scope of existing
law, ranging from upset that a right of
publicity is not a federal right 66 to
disappointment with VARA’s underinclusiveness and strict standards.67
Discussion also addressed the role of
technology, both in creation and in
dissemination of authorized and
unauthorized works. For example, a
photographer noted the importance of
attribution that stays with images,68 and
a photo company described the
technology they use to persistently
connect authorship information to
images.69
Looking at what lessons might be
gleaned from the experiences of other
countries, one panelist commented that
there is ‘‘tremendous diversity in how
different countries have implemented
moral rights,’’ 70 and another confirmed
that moral rights litigation constitutes
only a small percentage of the copyright
cases on those countries’ litigation
documents.71
III. Subjects of Inquiry
The Copyright Office seeks public
comments addressing how existing law,
including provisions found in title 17 of
the U.S. Code as well as other federal
and state laws, affords authors with
effective protection of their rights,
equivalent to those of moral rights of
attribution and integrity.
The Office invites written comments
in particular on the subjects below. A
party choosing to respond to this Notice
of Inquiry need not address every
subject, but the Office requests that
responding parties clearly identify and
Allan Adler, Ass’n of Am. Publishers (‘‘AAP’’))
(noting that the testimony of AAP at the 2014
hearing ‘‘raise[d] the threshold policy question of
‘whether to superimpose vague, subjective, and
wholly unpredictable new rights upon a
longstanding balanced and successful copyright
system.’’’).
66 See Session 2: The U.S. Perspective, 8 Geo.
Mason J. Int’l Com. L. 26, 30 (2016) (remarks of
Duncan Crabtree-Ireland, SAG–AFTRA).
67 See, e.g., Jane C. Ginsburg, Keynote Address,
The Most Moral of Rights: The Right to be
Recognized as the Author of One’s Work, 8 Geo.
Mason J. Int’l Com. L. 44, 53 (2016); Session 5: The
Intersection of Moral Rights and Other Laws, 8 Geo.
Mason J. Int’l Com. L. 106, 107–10, 113–14 (2016)
(remarks of Sonya G. Bonneau, Geo. Univ. Law Ctr.;
Eugene Mopsik, Am. Photographic Artists; & Nancy
E. Wolff, Cowan, DeBaets, Abrahams & Sheppard
LLP).
68 See Session 5: The Intersection of Moral Rights
and Other Laws, 8 Geo. Mason J. Int’l Com. L. 106,
110 (2016) (remarks of Eugene Mopsik, Am.
Photographic Artists).
69 See Session 4: The Importance of Moral Rights
to Authors, 8 Geo. Mason J. Int’l Com. L. 87, 92
(2016) (remarks of Yoko Miyashita, Getty Images).
70 Session 7: Where Do We Go From Here?, 8 Geo.
Mason J. Int’l Com. L. 142, 147 (2016) (remarks of
Mira Sundara Rajan, Univ. of Glasgow Sch. of Law).
71 See Session 1: Overview of Moral Rights, 8 Geo.
Mason J. Int’l Com. L. 7, 15 (2016) (remarks of
Daniel Gervais, Vand. Law Sch.).
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Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Notices
separately address each numbered
subject for which a response is
submitted.
challenges and problems faced by
authors who want to protect the
attribution and integrity of their works?
General Questions Regarding
Availability of Moral Rights in the
United States
1. Please comment on the means by
which the United States protects the
moral rights of authors, specifically the
rights of integrity and attribution.
Should additional moral rights
protection be considered? If so, what
specific changes should be considered
by Congress?
Other Issues
Title 17
2. How effective has section 106A
(VARA) been in promoting and
protecting the moral rights of authors of
visual works? What, if any, legislative
solutions to improve VARA might be
advisable?
3. How have section 1202’s provisions
on copyright management information
been used to support authors’ moral
rights? Should Congress consider
updates to section 1202 to strengthen
moral rights protections? If so, in what
ways?
4. Would stronger protections for
either the right of attribution or the right
of integrity implicate the First
Amendment? If so, how should they be
reconciled?
5. If a more explicit provision on
moral rights were to be added to the
Copyright Act, what exceptions or
limitations should be considered? What
limitations on remedies should be
considered?
mstockstill on DSK3G9T082PROD with NOTICES
Other Federal and State Laws
6. How has the Dastar decision
affected moral rights protections in the
United States? Should Congress
consider legislation to address the
impact of the Dastar decision on moral
rights protection? If so, how?
7. What impact has contract law and
collective bargaining had on an author’s
ability to enforce his or her moral
rights? How does the issue of waiver of
moral rights affect transactions and
other commercial, as well as noncommercial, dealings?
Insights From Other Countries’
Implementation of Moral Rights
Obligations
8. How have foreign countries
protected the moral rights of authors,
including the rights of attribution and
integrity? How well would such an
approach to protecting moral rights
work in the U.S. context?
Technological Developments
9. How does, or could, technology be
used to address, facilitate, or resolve
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10. Are there any voluntary initiatives
that could be developed and taken by
interested parties in the private sector to
improve authors’ means to secure and
enforce their rights of attribution and
integrity? If so, how could the
government facilitate these initiatives?
11. Please identify any pertinent
issues not referenced above that the
Copyright Office should consider in
conducting its study
Dated: January 13, 2017.
Karyn Temple Claggett,
Acting Register of Copyrights and Director
of the U.S. Copyright Office.
[FR Doc. 2017–01294 Filed 1–19–17; 8:45 am]
BILLING CODE 1410–30–P
LIBRARY OF CONGRESS
Copyright Royalty Board
[Docket Nos. 17–0008–CRB–AU and 17–
0009–CRB–AU]
Notice of Intent To Audit
Copyright Royalty Board,
Library of Congress.
ACTION: Public notice.
AGENCY:
The Copyright Royalty Judges
announce receipt of two notices of
intent to audit the 2013, 2014, and 2015
statements of account submitted by
broadcasters Cox Radio (Docket No. 17–
CRB–0009–AU) and Hubbard
Broadcasting (Docket No. 17–CRB–
0008–AU) concerning royalty payments
each made pursuant to two statutory
licenses.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Anita Brown, Program Specialist, by
telephone at (202) 707–7658 or by email
at crb@loc.gov.
SUMMARY INFORMATION: The Copyright
Act, title 17 of the United States Code,
grants to copyright owners of sound
recordings the exclusive right to
publicly perform sound recordings by
means of certain digital audio
transmissions, subject to limitations.
Specifically, the right is limited by the
statutory license in section 114 which
allows nonexempt noninteractive digital
subscription services, eligible
nonsubscription services, and
preexisting satellite digital audio radio
services to perform publicly sound
recordings by means of digital audio
transmissions. 17 U.S.C. 114(f). In
addition, a statutory license in section
112 allows a service to make necessary
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7875
ephemeral reproductions to facilitate
the digital transmission of the sound
recording. 17 U.S.C. 112(e).
Licensees may operate under these
licenses provided they pay the royalty
fees and comply with the terms set by
the Copyright Royalty Judges. The rates
and terms for the section 112 and 114
licenses are set forth in 37 CFR parts
380 and 382–84.
As part of the terms set for these
licenses, the Judges designated
SoundExchange, Inc., as the Collective,
i.e., the organization charged with
collecting the royalty payments and
statements of account submitted by
eligible nonsubscription services such
as broadcasters and with distributing
the royalties to copyright owners and
performers entitled to receive them. See
37 CFR 380.33(b)(1).
As the designated Collective,
SoundExchange may, once during a
calendar year, conduct an audit of a
licensee for any or all of the prior three
years in order to verify royalty
payments. SoundExchange must first
file with the Judges a notice of intent to
audit a licensee and deliver the notice
to the licensee. See 37 CFR 380.35.
On December 22, 2016,
SoundExchange filed with the Judges
notices of intent to audit licensee
broadcasters Cox Radio, Inc., and
Hubbard Broadcasting, Inc., for 2013–
15. The Judges must publish notice in
the Federal Register within 30 days of
receipt of a notice announcing the
Collective’s intent to conduct an audit.
See 37 CFR 380.35(c). Today’s notice
fulfills this requirement with respect to
SoundExchange’s December 22, 2016
notices of intent to audit.
Dated: January 13, 2017.
Suzanne M. Barnett,
Chief Copyright Royalty Judge.
[FR Doc. 2017–01319 Filed 1–19–17; 8:45 am]
BILLING CODE 1410–72–P
LIBRARY OF CONGRESS
Copyright Royalty Board
[Docket No. 17–0004–CRB–AU, 17–0007–
CRB–AU, and 17–0010–CRB–AU]
Notice of Intent To Audit
Copyright Royalty Board,
Library of Congress.
ACTION: Public notice.
AGENCY:
The Copyright Royalty Judges
announce receipt of three notices of
intent to audit the 2013, 2014, and 2015
statements of account submitted by
commercial webcasters Radionomy
(Docket No. 17–CRB–0004–AU), IMVU,
Inc. (Docket No. 17–CRB–0007–AU),
SUMMARY:
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]]>Agencies
- Library of Congress
- U.S. Copyright Office
[Federal Register Volume 82, Number 13 (Monday, January 23, 2017)]
[Notices]
[Pages 7870-7875]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-01294]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
U.S. Copyright Office
[Docket No. 2017-2]
Study on the Moral Rights of Attribution and Integrity
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Notice of inquiry.
-----------------------------------------------------------------------
SUMMARY: The United States Copyright Office is undertaking a public
study to assess the current state of U.S. law recognizing and
protecting moral rights for authors, specifically the rights of
attribution and integrity. As part of this study, the Office will
review existing law on the moral rights of attribution and integrity,
including provisions found in title 17 of the U.S. Code as well as
other federal and state laws, and whether any additional protection is
advisable in this area. To support this effort and provide thorough
assistance to Congress, the Office is seeking public input on a number
of questions.
DATES: Written comments must be received no later than 11:59 p.m.
Eastern Time on March 9, 2017. Written reply comments must be received
no later than 11:59 p.m. Eastern Time on April 24, 2017. The Office may
announce one or more public meetings, to take place after written
comments are received, by separate notice in the future.
ADDRESSES: For reasons of government efficiency, the Copyright Office
is using the regulations.gov system for the submission and posting of
public comments in this proceeding. All comments must be submitted
electronically. Specific instructions for submitting comments will be
posted on the Copyright Office Web site at https://www.copyright.gov/policy/moralrights/comment-submission/. To meet accessibility
standards, all comments must be provided in a single file not to exceed
six megabytes (MB) in one of the following formats: Portable Document
File (PDF) format containing searchable, accessible text (not an
image); Microsoft Word; WordPerfect; Rich Text Format (RTF); or ASCII
text file format (not a scanned document). All comments must include
the name of the submitter and any organization the submitter
represents. The Office will post all comments publicly in the form that
they are received. If electronic submission of comments is not feasible
due to lack of access to a computer and/or the Internet, please contact
the Office, using the contact information below, for special
instructions.
FOR FURTHER INFORMATION CONTACT: Kimberley Isbell, Senior Counsel for
Policy and International Affairs, by email at kisb@loc.gov or by
telephone at 202-707-8350; or Maria Strong, Deputy Director for Policy
and International Affairs, by email at mstrong@loc.gov or by telephone
at 202-707-8350.
SUPPLEMENTARY INFORMATION:
I. Background
The term ``moral rights'' is taken from the French phrase droit
moral, and generally refers to certain non-economic rights that are
considered personal to an author.\1\ Chief among these are the right of
an author to be credited as the author of his or her work (the right of
attribution), and the right of an author to prevent prejudicial
distortions of the work (the right of integrity). These rights have a
long history in international copyright law, dating back to the turn of
the 20th century when several European countries included provisions on
moral rights in their copyright laws.\2\ A provision on moral rights
was first adopted at the international level through the Berne
Convention for the Protection of Literary and Artistic Works (``Berne
Convention'') during its Rome revision in 1928.\3\ The current text of
article 6bis(1) of the Berne Convention states: ``Independently of the
author's economic rights, and even after the transfer of the said
rights, the author shall have the right to claim authorship of the work
and to object to any distortion, mutilation or other modification of,
or other derogatory action in relation to, the said work, which would
be prejudicial to his honor or reputation.'' \4\
---------------------------------------------------------------------------
\1\ In this Notice, we use the general term ``author'' to
include all creators, including visual artists and performers.
\2\ See Sam Ricketson & Jane C. Ginsburg, International
Copyright and Neighboring Rights: The Berne Convention and Beyond ]]
10.03-.04, at 587-89 (2d ed. 2006).
\3\ See Mih[aacute]ly Ficsor, World Intellectual Property
Organization, Guide to the Copyright and Related Rights Treaties
Administered by WIPO and Glossary of Copyright and Related Rights
Terms ] BC[hyphen]6bis, at 44 (2003).
\4\ Berne Convention for the Protection of Literary and Artistic
Works art. 6bis(1), Sept. 9, 1886, as revised July 24, 1971, and as
amended Sept. 28, 1979, S. Treaty Doc. No. 99-27 (1986).
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In contrast to the early adoption of strong moral rights
protections in
[[Page 7871]]
Europe, the United States' experience with the concept of moral rights
is more recent. The United States did not adopt the Berne Convention
right away, only joining the Convention in 1989.\5\ At that time, the
United States elected not to adopt broad moral rights provisions in its
copyright law, but instead relied on a combination of various state and
federal statutes to comply with its Berne obligations.\6\
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\5\ Berne Convention Implementation Act of 1988, Public Law 100-
568, 102 Stat. 2853 (``BCIA'').
\6\ See discussion on the BCIA infra notes 15-23 and
accompanying text.
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In July 2014, the Subcommittee on Courts, Intellectual Property,
and the Internet of the House Judiciary Committee held a hearing that
focused in part on moral rights for authors in the United States as
part of its broader review of the nation's copyright laws.\7\ At that
hearing, the Chairman of the House Judiciary Committee, Representative
Bob Goodlatte, noted that ``we should consider whether current law is
sufficient to satisfy the moral rights of our creators or, whether
something more explicit is required.'' \8\ The Ranking Member of the
Subcommittee, Representative Jerrold Nadler, also indicated his
interest in a further evaluation of the status of moral rights in the
United States, asking ``how our current laws are working and what, if
any, changes might be necessary and appropriate.'' \9\ Register of
Copyrights Maria Pallante recommended further study of moral rights in
her testimony before Congress at the end of the two-year copyright
review hearings process,\10\ at which time the Ranking Member of the
House Judiciary Committee requested that the Office undertake this
study.\11\ As part of the preparation for this study, the Copyright
Office co-hosted a day-long symposium on moral rights in April 2016 in
order to hear views about current issues in this area. The Office is
now commencing a formal study on moral rights and soliciting public
input.
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\7\ See Moral Rights, Termination Rights, Resale Royalty, and
Copyright Term: Hearing Before the Subcomm. on Courts, Intellectual
Prop., & the Internet of the H. Comm. on the Judiciary, 113th Cong.
(2014) (``Moral Rights Hearing'').
\8\ Moral Rights Hearing at 4.
\9\ Id.
\10\ Register's Perspective on Copyright Review: Hearing Before
the H. Comm. on the Judiciary, 114th Cong. 34-35 (2015) (written
statement of Maria A. Pallante, Register of Copyrights and Dir.,
U.S. Copyright Office) (``Register's Perspective Hearing'').
\11\ Register's Perspective Hearing at 49 (statement of Rep.
John Conyers, Ranking Member, H. Comm. on the Judiciary).
---------------------------------------------------------------------------
A. Moral Rights in the United States Prior to Implementation of the
Berne Convention in 1989
In the late 1950s, the Copyright Office and Congress reviewed the
issue of moral rights as part of the larger, comprehensive review of
the copyright laws leading to a general revision of the 1909 Copyright
Act.\12\ In support of the review, William Strauss completed a study
for the Office entitled ``The Moral Right of the Author'' in 1959.\13\
The report found that U.S. common law principles, such as those
governing tort and contract actions, ``afford an adequate basis for
protection of [moral] rights'' and can provide the same protection
given abroad under the doctrine of moral rights.\14\
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\12\ As part of the consideration for possible accession to the
Berne Convention, the general review of the 1909 Act took more than
20 years and resulted in the 1976 Copyright Act.
\13\ See William Strauss, Study No. 4: The Moral Right of the
Author (1959), in Staff of S. Comm. on the Judiciary, 86th Cong.,
Copyright Law Revision: Studies Prepared for the Subcomm. on
Patents, Trademarks, and Copyrights of the Comm. on the Judiciary,
United States Senate: Studies 1-4, at 109 (Comm. Print 1960).
\14\ Strauss at 142. The report rejected the idea of an
``irreconcilable breach between European and American concepts of
protection of authors' personal rights,'' instead concluding that
U.S. and European courts generally arrived at the same results in
upholding the same rights or limitations on those rights, just in
different ways. Id. at 141-42.
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Later, Congress considered the specific question of ``whether the
current law of the United States is sufficient, or whether additional
laws are needed, to satisfy [Berne article 6bis's] requirements.'' \15\
The majority of those who testified before Congress argued against any
change to U.S. law concerning an artist's right to control attribution
or any alteration to his creation, stating that current U.S. law was
sufficient.\16\ Indeed, WIPO Director General Dr. [Aacute]rp[aacute]d
Bogsch explained to Congress that the United States did not need to
make any changes to U.S. law to meet the obligations of article
6bis.\17\
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\15\ H.R. Rep. No. 100-609, at 33 (1988).
\16\ See S. Rep. No. 100-352, at 6 (1988); H.R. Rep. No. 100-
609, at 33 (1988).
\17\ See H.R. Rep. No. 100-609, at 37 (1988); S. Rep. No. 100-
352, at 10 (1988); see also Letter from Dr. [Aacute]rp[aacute]d
Bogsch, Dir. Gen., World Intellectual Prop. Org., to Irwin Karp,
Esq. (June 16, 1987), reprinted in Berne Convention Implementation
Act of 1987: Hearing on H.R. 1623 Before the Subcomm. on Courts,
Civil Liberties & the Admin. of Justice of the H. Comm. on the
Judiciary, 100th Cong. 213 (1987) (``In my view, it is not necessary
for the United States of America to enact statutory provisions on
moral rights in order to comply with Article 6bis of the Berne
Convention. The requirements under this Article can be fulfilled not
only by statutory provisions in a copyright statute but also by
common law and other statutes.'').
---------------------------------------------------------------------------
Both the House and Senate Judiciary Committees accepted this
conclusion,\18\ finding that U.S. law met the requirements outlined in
the Berne Convention's article 6bis based on the existing patchwork of
laws in the United States, including:
---------------------------------------------------------------------------
\18\ See S. Rep. No. 100-352, at 9-10 (1988); H.R. Rep. No. 100-
609, at 37-38 (1988); see also S. Exec. Rep. No. 100-17, at 55
(1988) (to accompany S. Treaty Doc. No. 99-27 (1986)) (statement of
John K. Uilkema on behalf of Am. Bar Ass'n before the S. Comm. on
Foreign Relations) (``Whether greater or lesser moral rights per se
should be the subject of legislative consideration in the United
States is a question that is separate and apart from the Berne
adherence compatibility question.'').
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Section 43(a) of the Lanham Act relating to false
designations of origin and false descriptions, which could be applied
in some instances to attribution of copyright-protected work.\19\
---------------------------------------------------------------------------
\19\ See 15 U.S.C. 1125(a).
---------------------------------------------------------------------------
The Copyright Act's provisions regarding protection of an
author's exclusive rights in derivatives of his or her works; \20\
limits on a mechanical licensee's rights to arrange an author's musical
composition; \21\ and termination of transfers and licenses.\22\
---------------------------------------------------------------------------
\20\ See 17 U.S.C. 106(2).
\21\ See 17 U.S.C. 115(a)(2).
\22\ See 17 U.S.C. 203.
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State and local laws relating to publicity, contractual
violations, fraud and misrepresentation, unfair competition,
defamation, and invasion of privacy.\23\
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\23\ See H.R. Rep. No. 100-609, at 34 (1988). Contract law is
particularly important for authors to control aspects of their
economic and moral rights. For example, the collective bargaining
agreements that govern the creation of major motion pictures often
contain explicit requirements with regards to attribution for
actors, writers, directors, and other guilds. Many copyright sectors
that involve numerous authors and participants in the creative
process, such as filmed entertainment, business and entertainment
software, music production, and book publishing, also rely on both
employment agreements and the work-for-hire doctrine to determine
ownership issues, which in turn may include elements related to
attribution and integrity.
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B. Subsequent Developments After the U.S. Implementation of the Berne
Convention
Since the United States' implementation of the Berne Convention
over 25 years ago, there have been a number of legal and technological
developments affecting the scope and protection of moral rights. In
1990, Congress passed the Visual Artists Rights Act (VARA), codified at
section 106A of the Copyright Act, \24\
[[Page 7872]]
which guarantees to authors of works of ``visual arts'' the right to
claim or disclaim authorship in a work and limited rights to prevent
distortion, mutilation, or modification of a work.\25\ In contrast to
how moral rights were often adopted elsewhere, with VARA, Congress
identified specific instances in which the limited rights could be
waived.\26\ As part of the legislation, Congress also directed the
Copyright Office to conduct studies on the VARA waiver provision and
also on resale royalties.\27\
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\24\ Visual Artists Rights Act (VARA) of 1990, Public Law 101-
650, 104 Stat. 5128-29 (codified at 17 U.S.C. 106A). In the Report
accompanying H.R. 2690 (Visual Artists Rights Act of 1990), the
House Judiciary provided background information on the Berne
Convention and moral rights, noting that the Congress at the time of
the BCIA agreed that existing federal and state laws were sufficient
to comply with the Berne Convention requirements, but that
``adherence to the Berne Convention did not end the debate about
whether the United States should adopt artists' rights laws, and the
Subcommittee on Courts, Intellectual Property, and the
Administration of Justice continued its review of the issue in
[hearings held] in June.'' H.R. Rep. No. 101-514, at 8 (1990).
Congress cited the ``critical factual and legal differences in the
way visual arts and audiovisual works are created and disseminated''
in support of providing additional protections for visual artists.
H.R. Rep. No. 101-514, at 9 (1990).
\25\ See 17 U.S.C. 101 (definition of a ``work of visual art'');
Sec. 106A(a)(1) (providing for the right of attribution); Sec.
106A(a)(3) (providing for the right of integrity). Section 604 of
VARA, codified at 17 U.S.C. 113, created special rules for removal
of works visual art incorporated into buildings. Unlike Berne's
article 6bis, VARA's protections only apply to works of visual art.
\26\ See H.R. Rep. No. 101-514, at 18 (1990). VARA permits
authors to waive these rights only if expressly agreed in a written
instrument signed by the author. See 17 U.S.C. 106A(e).
\27\ See Visual Artists Rights Act of 1990, Public Law 101-650,
608, 104 Stat. 5128, 5132 (1990). The Copyright Office's 1992 study
concluded there was insufficient economic and copyright policy
justification to establish droit de suite in the United States. See
U.S. Copyright Office, Droit De Suite: The Artist's Resale Royalty
xv (1992), https://www.copyright.gov/history/droit_de_suite.pdf. In
2013, the Copyright Office responded to a congressional request and
issued a second report which examined the changes in law and
practice regarding resale royalties, in both the United States and
abroad, since the 1992 report. See U.S. Copyright Office, Resale
Royalties: An Updated Analysis (2013), https://www.copyright.gov/docs/resaleroyalty/usco-resaleroyalty.pdf.
---------------------------------------------------------------------------
In its 1996 report on the waiver provision, the Office concluded it
could not make an accurate assessment of the impact of VARA's waiver
provisions because artists and art consumers were generally unaware of
moral rights and recommended that in order for artists to take
advantage of their legal rights under VARA, further education about
moral rights in the United States would be necessary.\28\ The Office
also made observations about the implementation of moral rights
obligations in other countries, finding that, of the laws reviewed by
the Office, only the moral rights laws of the United Kingdom and Canada
contained express waiver provisions.\29\
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\28\ See U. S. Copyright Office, Waiver of Moral Rights in
Visual Artworks: Final Report of the Register of Copyrights xiii,
186 (1996), https://www.copyright.gov/reports/waiver-moral-rights-visual-artworks.pdf (``Waiver of Moral Rights'').
\29\ Waiver of Moral Rights at 183.
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The Supreme Court's 2003 Decision in Dastar
In 2003, some scholars began to question the strength of the U.S.
patchwork of protection as a result of the U.S. Supreme Court's ruling
in Dastar Corp. v. Twentieth Century Fox Film Corp. (``Dastar''), which
foreclosed some attribution claims under section 43(a) of the Lanham
Act.\30\ The Court unanimously rejected an interpretation of section
43(a) that would ``require attribution of uncopyrighted materials.''
\31\ Citing VARA, the Court said that when Congress has wanted to
provide an attribution right under copyright law, ``it has done so with
much more specificity than the Lanham Act's ambiguous use of `origin.'
'' \32\ The Court found that ``origin of goods'' is most naturally
understood as referring to the source of a physical product, not the
person or entity that originated the underlying creative content.\33\
In a well-known sentence, Justice Scalia, writing for the Court, stated
that permitting a section 43(a) claim for such misattribution ``would
create a species of mutant copyright law that limits the public's
`federal right to copy and to use' expired copyrights.'' \34\
---------------------------------------------------------------------------
\30\ 539 U.S. 23 (2003). Dastar involved the distribution of an
edited version of a 1949 broadcast to which Twentieth Century Fox
had owned the copyright but which it failed to renew, placing the
work in the public domain. Dastar distributed copies of the edited
series listing Dastar and its subsidiary as the producer and
distributor of the edited work, rather than Fox. Fox sued for
reverse passing off, claiming Dastar violated section 43(a) of the
Lanham Act's prohibition against false designation of origin.
\31\ Id. at 35.
\32\ Id.at 34.
\33\ See id. at 31-32.
\34\ Id. at 34 (internal quote marks omitted). The Supreme Court
left open the possibility of a Lanham Act claim under section
43(a)(1)(B) where, in advertising for a copied work of authorship,
the copier ``misrepresents the nature, characteristics [or]
qualities'' of the work. Id. at 38.
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Some lower courts have read Dastar as a broad prohibition on
applying federal trademark and unfair competition laws in the realm of
copyright, regardless of whether the copyrighted work remains under the
term of protection or has fallen into the public domain.\35\ In
contrast, some scholars have argued that the Court did not write
federal trademark and unfair competition law out of the patchwork
entirely.\36\
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\35\ See, e.g., Kehoe Component Sales Inc. v. Best Lighting
Prods., Inc., 796 F.3d 576, 587 (6th Cir. 2015); Gen. Universal
Sys., Inc. v. Lee, 379 F.3d 131, 148-49 (5th Cir. 2004); Zyla v.
Wadsworth, 360 F.3d 243, 251-52 (1st Cir. 2004); Carroll v. Kahn,
No. 03-CV-0656, 2003 WL 22327299, at *5-6 (N.D.N.Y. Oct. 9, 2003).
\36\ See, e.g., Jane C. Ginsburg, Moral Rights in the U.S.:
Still in Need of a Guardian Ad Litem, 30 Cardozo Arts & Ent. L.J.
73, 83-87 (2012); Justin Hughes, American Moral Rights and Fixing
the Dastar ``Gap,'' 2007 Utah L. Rev. 659 (2007). At least one
commenter has argued that not only do section 43(a)(1)(B) claims
survive Dastar, but so do some section 43(a)(1)(A) claims. See
Hughes at 692-95.
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Rights Management Information and Moral Rights for Performers
Since implementation of the Berne Convention, the United States has
joined two additional international treaties that address moral
rights--the WIPO Copyright Treaty (WCT) and the WIPO Performances and
Phonograms Treaty (WPPT). The WCT incorporates the substantive
provisions of Berne, including those of article 6bis.\37\ Article 5 of
the WPPT expands the obligations of Contracting Parties to recognize
the moral rights of attribution and integrity for performers with
respect to their live performances and performances fixed in
phonograms.\38\ Furthermore, both the WCT and the WPPT include new
obligations concerning rights management information (RMI).\39\ These
provisions protect new means of identifying and protecting works while
also helping protect the rights of attribution and integrity.\40\
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\37\ See WIPO Copyright Treaty art. 1(4), Dec. 20, 1996, 2186
U.N.T.S. 121 (``WCT''); see also Summary of the WIPO Copyright
Treaty (WCT) (1996), WIPO, https://www.wipo.int/treaties/en/ip/wct/summary_wct.html.
\38\ See WIPO Performances and Phonograms Treaty art. 5(1), Dec.
20, 1996, 2186 U.N.T.S. 203 (``WPPT''). Like the Berne Convention,
the WPPT provides that the duration of protection shall be at least
for the term of economic rights and shall be governed by national
law. WPPT arts. 5(2)-(3).
\39\ See WCT art. 12; WPPT art. 19. WCT article 12 and WPPT
article 19 define rights management information to include
identification of the author and owner and terms of use of the work
or sound recording.
\40\ See J. Carlos Fern[aacute]dez-Molina & Eduardo Peis, The
Moral Rights of Authors in the Age of Digital Information, 52 J. Am.
Soc'y for Info. Sci. & Tech. 109, 112 (2001) (explaining how the
WIPO Internet Treaties' rights management information provisions fit
within the treaties and also are useful in protecting moral rights).
---------------------------------------------------------------------------
The United States implemented its WCT and WPPT obligations via
enactment of the 1998 Digital Millennium Copyright Act (``DMCA''),\41\
and signed as a contracting party to both treaties in 1999, three years
before the
[[Page 7873]]
treaties entered into force.\42\ Congress added a new chapter 12 to
title 17, which contained two new provisions to implement the
treaties--section 1201, which addresses technological protection
measures, and section 1202, which protects rights management
information (called copyright management information in U.S. law)
\43\--but did not make any additional changes, finding that ``[t]he
treaties do not require any change in the substance of copyright rights
or exceptions in U.S. law.'' \44\
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\41\ Digital Millennium Copyright Act (DMCA), Public Law 105-
304, 103 122 Stat. 2860, 2863-76 (1998) (codified as amended at 17
U.S.C. 1201-1205). The WIPO Internet Treaties were submitted to
Congress for advice and consent the previous year, and the Senate
voted to approve the Treaties shortly before passage of the DMCA.
See S. Treaty Doc. No. 105[hyphen]17 (1997); 105 Cong. Rec. S12,972-
73 (daily ed. Oct. 21, 1998).
\42\ See WCT Notification No. 10: WIPO Copyright Treaty:
Ratification by the United States of America, WIPO (Sept. 14, 1999),
available at https://www.wipo.int/treaties/en/notifications/wct/treaty_wct_10.html; WPPT Notification No. 8: WIPO Performances and
Phonograms Treaty: Ratification by the United States of America,
WIPO (Sept. 14, 1999), available at https://www.wipo.int/treaties/en/notifications/wppt/treaty_wppt_8.html.
\43\ The other sections of chapter 12 include sections 1203 and
1204, which set forth available civil remedies and criminal
sanctions for violation of sections 1201 and 1202, and section 1205,
which explicitly carves out federal and state laws affecting
Internet privacy. 17 U.S.C. Sec. Sec. 1203-1205.
\44\ H.R. Rep. No. 105[hyphen]551, pt. 1, at 9 (1998).
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Section 1202 includes prohibitions on both providing false
copyright management information (``CMI''), and removing or altering
CMI.\45\ In addition to facilitating the administration of an author's
or right holder's economic rights, the CMI protections afforded by
section 1202 may have implications for authors' protection and
enforcement of their moral rights.\46\ However, two aspects of section
1202 may limit its usefulness as a mechanism to protect an author's
moral rights. First, to be liable under section 1202, a person who
removes copyright management information must know both that they have
caused its removal and that such removal is likely to cause others to
infringe the work.\47\ Second, while most courts recognize section 1202
as protecting against any removal of attribution from works, a minority
of courts have limited section 1202 to protect only against removal of
attribution that is digital or part of an ``automated copyright
protection or management system.'' \48\
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\45\ The term ``copyright management information'' in the
Copyright Act is seen as a synonymous term for ``rights management
information'' as used in the WCT and WPPT. See S. Rep. No. 105-190,
at 11 n.18 (1998) (``Rights management information is more commonly
referred to in the U.S. as copyright management information
(CMI).'').
\46\ Section 1202 makes it an offense to ``intentionally remove
or alter any copyright management information,'' which includes the
name of a work's author. 17 U.S.C. Sec. Sec. 1202(b)(1), (c)(2).
See Jane C. Ginsburg, Have Moral Rights Come of (Digital) Age in the
United States?, 19 Cardozo Arts & Ent. L.J. 9, 11 (2001) (``The DMCA
may contain the seeds of a more general attribution right. . . .'');
see also Greg Lastowka, Digital Attribution: Copyright and the Right
to Credit, 87 B.U. L. Rev. 41, 69-73 (2007).
\47\ See 17 U.S.C. 1202(a)-(b); see also Stevens v. Corelogic,
No. 14-cv-1158, 2016 WL 4371549, at *5, 6 (S.D. Cal. July 1, 2016)
(``Under Sec. 1202(b)(1), Plaintiffs must present evidence that
[defendant] intentionally removed or altered CMI. . . . '' and
``[a]lthough Plaintiffs need not show actual infringement, the fact
that there was none is relevant to Plaintiffs' burden to show that
[defendant] had a reasonable ground to believe it was likely to
happen.'').
\48\ Compare Murphy v. Millennium Radio Grp. LLC, 650 F.3d 295,
305 (3d Cir. 2011) (rejecting argument that the definition of CMI
under section 1202 is ``restricted to the context of `automated
copyright protection or management systems'''), and Williams v.
Cavalli S.p.A., No. CV 14-06659-AB (JEMx), 2015 WL 1247065, at *3
(C.D. Cal. Feb. 12, 2015) (holding that ``[t]he plain meaning of
Sec. 1202 indicates that CMI can include non-digital copyright
information''), and Leveyfilm, Inc. v. Fox Sports Interactive Media,
LLC, 999 F. Supp. 2d 1098, 1101-02 (N.D. Ill. 2014) (noting that the
majority of courts have rejected a requirement for CMI to be digital
under section 1202), and Fox v. Hildebrand, No. CV 09-2085 DSF
(VBKx), 2009 WL 1977996, at *3 (C.D. Cal. July 1, 2009) (``The plain
language of the statute indicates that the DMCA provision at issue
is not limited to copyright notices that are digitally placed on a
work.''), with Textile Secrets Int'l Inc. v. Ya-Ya Brand Inc., 524
F. Supp. 2d 1184, 1201 (C.D. Cal. 2007) (``[T]he Court [] cannot
find that the provision was intended to apply to circumstances that
have no relation to the Internet, electronic commerce, automated
copyright protections or management systems, public registers, or
other technological measures or processes as contemplated in the
DMCA as a whole.''), and IQ Grp., Ltd. v. Wiesner Publ'g, LLC, 409
F. Supp. 2d 587, 597 (D.N.J. 2006) (holding that ``[t]o come within
Sec. 1202, the information removed must function as a component of
an automated copyright protection or management system''). The
majority position seems to accord with statements from the
legislative history. See, e.g., S. Rep. No. 105-190, at 16 (1998)
(``CMI need not be in digital form, but CMI in digital form is
expressly included.'').
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Recent International Developments
There have also been changes to the landscape of moral rights
protection internationally since the U.S. acceded to the Berne
Convention in 1989. The Copyright Office noted in its 1996 report
Waiver of Moral Rights in Visual Artworks that, while statutory
recognition of the commonly recognized moral rights--i.e., attribution
and integrity--is the norm internationally, the strength of the moral
rights laws varied among Berne members, even among those with the same
basic legal systems.\49\ For example, at the time of the Report the
United Kingdom required an author or her heirs, in some cases, to
assert the right of paternity and was generally considered to have
adopted one of the more restrictive approaches to implementing moral
rights.\50\ However, ten years later, in 2006, the United Kingdom
amended its moral rights provision by extending to qualifying
performances the right to attribution and the right to object to
derogatory treatment of a work.\51\
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\49\ See Waiver of Moral Rights at 53.
\50\ See Waiver of Moral Rights at 47-51, 53.
\51\ See Performances (Moral Rights, etc.) Regulations 2006, SI
2006/18, arts. 5-6 (UK).
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The most recent international development on CMI and moral rights
occurred four years ago at a Diplomatic Conference in Beijing where
WIPO and its member states concluded a new treaty on audiovisual
performances.\52\ Similar to the approach of the WPPT, the Beijing
Treaty on Audiovisual Performances also contains provisions on CMI and
moral rights for audiovisual performers.\53\
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\52\ See Beijing Treaty on Audiovisual Performances, June 24,
2012, 51 I.L.M. 1214 (2012) (``Beijing Treaty'').
\53\ See Beijing Treaty art. 5 (``Moral Rights''), art. 16
(``Obligations Concerning Rights Management Information'').
Negotiations to conclude this treaty took more than a decade, with a
major point of contention involving the provision on contractual
transfers. See Beijing Treaty art. 12; see also Press Release, WIPO,
WIPO Diplomatic Conference Opens in Beijing to Conclude Treaty on
Performers' Rights in Audiovisual Productions, WIPO Press Release
PR/2012/713 (June 20, 2012), available at https://www.wipo.int/pressroom/en/articles/2012/article_0012.html (noting that as far
back as the year 2000 negotiators could not agree on the issue
involving transfer of rights, and a breakthrough compromise occurred
in June 2011). This treaty has not yet entered into force, and the
United States has not yet ratified it. The Obama Administration has
submitted a legislative package to Congress in support of U.S.
implementation of the Beijing Treaty. See Letter from Michelle K.
Lee, Under Sec'y Commerce for Intellectual Prop. & Dir., U.S. Patent
& Trademark Office, to Joseph R. Biden, President of the Senate
(Feb. 26, 2016), available at https://www.uspto.gov/sites/default/files/documents/Beijing-treaty-package.pdf (treaty implementation
package for the Beijing Treaty on Audiovisual Performances which
includes a transmittal letter, Beijing Treaty Implementation Act of
2016, and Statement of Purpose and Need and Sectional Analysis).
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Availability and Use of Licenses, Contracts, and State Laws
Another part of the patchwork upon which moral rights protection in
the United States relies is state contract law, which allows authors to
negotiate for protection of their rights of attribution and integrity
through private ordering. Since the United States' accession to the
Berne Convention, a major change to this area has been the emergence of
Creative Commons and its various licenses that have simplified
licensing for all kinds of authors and users, large and small. The CC
license suites have served to facilitate private ordering, including
for individual authors that would not previously have been able to
afford the services of a lawyer to create licenses to govern use of
their works.\54\
[[Page 7874]]
Currently there are over one billion works licensed under Creative
Commons licenses, most of which require attribution of the author.\55\
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\54\ Founded in 2001, Creative Commons offers various open
source content licenses. Creative Commons Project, Cover Pages (Aug.
22, 2008), https://xml.coverpages.org/creativeCommons.html. These
types of licenses were held to be governed by copyright law rather
than contract law in Jacobsen v. Katzer, 535 F.3d 1373, 1380-83
(Fed. Cir. 2008).
\55\ Creative Commons, https://creativecommons.org/ (last
visited Jan. 5, 2017) (``1.1 billion works and counting.'').
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Changes in Technology to Deliver Content and Identify Content
The evolution of technology in the past few decades has also
impacted the availability of moral rights protections for modern
authors. Technology can facilitate improved identification and
licensing of works with persistent identifiers,\56\ while, at the same
time, it can also make it easier to remove attribution elements and
distribute the unattributed works widely.\57\
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\56\ For example, the PLUS Coalition has created an image rights
language to allow for global communication of image rights
information, and it is currently developing an image registry that
will function as a hub connecting registries worldwide and providing
both literal and image-based searches. PLUS Coalition, Comments
Submitted in Response to U.S. Copyright Office's Apr. 24, 2015
Notice of Inquiry (Visual Works Study) at 1 (July 22, 2015) (noting
that the Coalition's unique image rights language is meant to
address the ``challenges [arising] from a present inability to
ensure that any person or machine encountering a visual work has
ready access to rights information sufficient to allow the work to
be identified, and sufficient to facilitate an informed decision
regarding the display, reproduction and distribution of the work'').
\57\ Indeed, CMI is of particular interest to visual artists who
embed copyright information in their works only to find it
unlawfully stripped from digital copies. This makes it difficult for
potential users to identify and contact the copyright owner to
obtain a license to use a work found online. See Columbia University
Libraries, Comments Submitted in Response to U.S. Office's Apr. 24,
2015 Notice of Inquiry (Visual Works Study) at 2 (July 23, 2015)
(``Rights metadata that includes author attribution and source
information would [ ] facilitate subsequent re-uses of visual works
while at the same time support the interests of legitimate copyright
owners.'').
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II. Congressional Copyright Review and This Study
As part of its effort to begin a dialogue about moral rights
protections in the United States, the Copyright Office organized a
symposium entitled ``Authors, Attribution, and Integrity: Examining
Moral Rights in the United States,'' which was held on April 18,
2016.\58\ The symposium served as a launching point for the issuance of
this Notice of Inquiry.
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\58\ The Office co-hosted this symposium with the George Mason
University School of Law and its Center for the Protection of
Intellectual Property. Videos of the proceedings can be accessed on
the U.S. Copyright Office Web site event page at https://www.copyright.gov/events/moralrights/. The official transcript has
been published by the George Mason Journal of International
Commercial Law. See Symposium, Authors, Attribution, and Integrity:
Examining Moral Rights in the United States, 8 Geo. Mason J. Int'l
Com. L. 1 (2016), available at https://www.georgemasonjicl.org/wp-content/uploads/2016/08/Summer-Issue-2016.pdf.
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Seven sessions covered the historical development of moral rights,
the value authors place on moral rights, the various ways current law
provides for these rights, and new considerations for the digital age.
Participants, including professional authors, artists, musicians, and
performers, discussed the importance that copyright law generally, and
attribution specifically, plays in supporting their creative process
and their livelihood.\59\ Leading academics provided an overview of the
scope of moral rights and how countries, including the United States,
approach these concepts. \60\
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\59\ See Session 4: The Importance of Moral Rights to Authors, 8
Geo. Mason J. Int'l Com. L. 87, 90 (2016).
\60\ See Session 1: Overview of Moral Rights, 8 Geo. Mason J.
Int'l Com. L. 7 (2016).
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Many participants identified the right of attribution as
particularly important to authors, both from a personal and from an
economic perspective. For example, participants cited the role of
copyright management information for purposes of attribution, and
discussed the perceived strengths and limitations of section 1202.\61\
Keynote speaker Professor Jane Ginsburg posited ways to strengthen the
right of attribution.\62\ Others discussed the possibilities of using
non-copyright laws post-Dastar,\63\ as well as expressing concerns
about how potential moral rights-like causes of action might interact
with First Amendment protections.\64\
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\61\ See, e.g., Jane C. Ginsburg, Keynote Address, The Most
Moral of Rights: The Right to be Recognized as the Author of One's
Work, 8 Geo. Mason J. Int'l Com. L. 44, 48, 60-72 (2016); Session 4:
The Importance of Moral Rights to Authors, 8 Geo. Mason J. Int'l
Com. L. 87, 91-93 (2016) (comments of Yoko Miyashita, Getty Images).
\62\ See Jane C. Ginsburg, Keynote Address: The Most Moral of
Rights: The Right to be Recognized as the Author of One's Work, 8
Geo. Mason J. Int'l Com. L. 44, 72-81 (2016).
\63\ See, e.g., Session 2: The U.S. Perspective, 8 Geo. Mason J.
Int'l Com. L. 26, 30-34 (2016) (remarks of Duncan Crabtree-Ireland,
SAG-AFTRA, & Peter K. Yu, Tex. A&M Univ. Sch. of Law); Session 6:
New Ways to Disseminate Content and the Impact on Moral Rights, 8
Geo. Mason J. Int'l Com. L. 125, 139 (2016) (remarks of Stanley
Pierre-Louis, Entm't Software Ass'n).
\64\ See Session 5: The Intersection of Moral Rights and Other
Laws, 8 Geo. Mason J. Int'l Com. L. 106, 119-20 (2016) (remarks of
Paul Alan Levy, Pub. Citizen).
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Some participants asserted that the current patchwork of laws,
particularly the availability of contract law, the work for hire
doctrine, and collective bargaining agreements (available in some
industry sectors), provides sufficient protection for moral rights
concerns.\65\ In contrast, several voices criticized the limited scope
of existing law, ranging from upset that a right of publicity is not a
federal right \66\ to disappointment with VARA's under-inclusiveness
and strict standards.\67\
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\65\ See Session 2: The U.S. Perspective, 8 Geo. Mason J. Int'l
Com. L. 26, 27-29 (2016) (remarks of Allan Adler, Ass'n of Am.
Publishers (``AAP'')) (noting that the testimony of AAP at the 2014
hearing ``raise[d] the threshold policy question of `whether to
superimpose vague, subjective, and wholly unpredictable new rights
upon a longstanding balanced and successful copyright system.''').
\66\ See Session 2: The U.S. Perspective, 8 Geo. Mason J. Int'l
Com. L. 26, 30 (2016) (remarks of Duncan Crabtree-Ireland, SAG-
AFTRA).
\67\ See, e.g., Jane C. Ginsburg, Keynote Address, The Most
Moral of Rights: The Right to be Recognized as the Author of One's
Work, 8 Geo. Mason J. Int'l Com. L. 44, 53 (2016); Session 5: The
Intersection of Moral Rights and Other Laws, 8 Geo. Mason J. Int'l
Com. L. 106, 107-10, 113-14 (2016) (remarks of Sonya G. Bonneau,
Geo. Univ. Law Ctr.; Eugene Mopsik, Am. Photographic Artists; &
Nancy E. Wolff, Cowan, DeBaets, Abrahams & Sheppard LLP).
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Discussion also addressed the role of technology, both in creation
and in dissemination of authorized and unauthorized works. For example,
a photographer noted the importance of attribution that stays with
images,\68\ and a photo company described the technology they use to
persistently connect authorship information to images.\69\
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\68\ See Session 5: The Intersection of Moral Rights and Other
Laws, 8 Geo. Mason J. Int'l Com. L. 106, 110 (2016) (remarks of
Eugene Mopsik, Am. Photographic Artists).
\69\ See Session 4: The Importance of Moral Rights to Authors, 8
Geo. Mason J. Int'l Com. L. 87, 92 (2016) (remarks of Yoko
Miyashita, Getty Images).
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Looking at what lessons might be gleaned from the experiences of
other countries, one panelist commented that there is ``tremendous
diversity in how different countries have implemented moral rights,''
\70\ and another confirmed that moral rights litigation constitutes
only a small percentage of the copyright cases on those countries'
litigation documents.\71\
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\70\ Session 7: Where Do We Go From Here?, 8 Geo. Mason J. Int'l
Com. L. 142, 147 (2016) (remarks of Mira Sundara Rajan, Univ. of
Glasgow Sch. of Law).
\71\ See Session 1: Overview of Moral Rights, 8 Geo. Mason J.
Int'l Com. L. 7, 15 (2016) (remarks of Daniel Gervais, Vand. Law
Sch.).
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III. Subjects of Inquiry
The Copyright Office seeks public comments addressing how existing
law, including provisions found in title 17 of the U.S. Code as well as
other federal and state laws, affords authors with effective protection
of their rights, equivalent to those of moral rights of attribution and
integrity.
The Office invites written comments in particular on the subjects
below. A party choosing to respond to this Notice of Inquiry need not
address every subject, but the Office requests that responding parties
clearly identify and
[[Page 7875]]
separately address each numbered subject for which a response is
submitted.
General Questions Regarding Availability of Moral Rights in the United
States
1. Please comment on the means by which the United States protects
the moral rights of authors, specifically the rights of integrity and
attribution. Should additional moral rights protection be considered?
If so, what specific changes should be considered by Congress?
Title 17
2. How effective has section 106A (VARA) been in promoting and
protecting the moral rights of authors of visual works? What, if any,
legislative solutions to improve VARA might be advisable?
3. How have section 1202's provisions on copyright management
information been used to support authors' moral rights? Should Congress
consider updates to section 1202 to strengthen moral rights
protections? If so, in what ways?
4. Would stronger protections for either the right of attribution
or the right of integrity implicate the First Amendment? If so, how
should they be reconciled?
5. If a more explicit provision on moral rights were to be added to
the Copyright Act, what exceptions or limitations should be considered?
What limitations on remedies should be considered?
Other Federal and State Laws
6. How has the Dastar decision affected moral rights protections in
the United States? Should Congress consider legislation to address the
impact of the Dastar decision on moral rights protection? If so, how?
7. What impact has contract law and collective bargaining had on an
author's ability to enforce his or her moral rights? How does the issue
of waiver of moral rights affect transactions and other commercial, as
well as non-commercial, dealings?
Insights From Other Countries' Implementation of Moral Rights
Obligations
8. How have foreign countries protected the moral rights of
authors, including the rights of attribution and integrity? How well
would such an approach to protecting moral rights work in the U.S.
context?
Technological Developments
9. How does, or could, technology be used to address, facilitate,
or resolve challenges and problems faced by authors who want to protect
the attribution and integrity of their works?
Other Issues
10. Are there any voluntary initiatives that could be developed and
taken by interested parties in the private sector to improve authors'
means to secure and enforce their rights of attribution and integrity?
If so, how could the government facilitate these initiatives?
11. Please identify any pertinent issues not referenced above that
the Copyright Office should consider in conducting its study
Dated: January 13, 2017.
Karyn Temple Claggett,
Acting Register of Copyrights and Director of the U.S. Copyright
Office.
[FR Doc. 2017-01294 Filed 1-19-17; 8:45 am]
BILLING CODE 1410-30-P
