Does the Copyright Designs and Patents Act 1988 accommodate a right to object to destruction?
Tania Cheng-Davies Senior Lecturer in Law, University of Bristol, UK

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This article is concerned with the question of whether an author has, under the UK Copyright Designs and Patents Act 1988, a right to object to the complete destruction of their copyright work. Under s. 80 of the 1988 Act, the author has the right, referred to as the ‘integrity right’, to object to the derogatory treatment of their copyright work, but the question as to whether this is broad enough to cover the utter and complete destruction of the work has not yet been settled satisfactorily. This discussion addresses this shortfall.

Abstract

This article is concerned with the question of whether an author has, under the UK Copyright Designs and Patents Act 1988, a right to object to the complete destruction of their copyright work. Under s. 80 of the 1988 Act, the author has the right, referred to as the ‘integrity right’, to object to the derogatory treatment of their copyright work, but the question as to whether this is broad enough to cover the utter and complete destruction of the work has not yet been settled satisfactorily. This discussion addresses this shortfall.

When the right of integrity is enacted, it would be desirable to deal with this issue [destruction] clearly … The issue may be difficult to resolve, but it should not be glossed over. (Gerald Dworkin on the proposed UK Copyright Designs and Patents Bill)1

1 INTRODUCTION

This article is concerned with the question of whether an author has, under the UK Copyright Designs and Patents Act 1988 (CDPA), a right to object to the complete destruction of their copyright work. Under s 80 of the CDPA, the author has the right, referred to as the ‘integrity right’, to object to the derogatory treatment of their copyright work, but the question as to whether this is broad enough to cover the utter and complete destruction of the work has not yet been settled satisfactorily.

Moral rights, to which the integrity right belongs, are rights which attach to authorial works. Generally, in jurisdictions which recognize moral rights (including the integrity right), it is generally accepted that the creator may object to a mutilation or deformation of his work, which is the traditionally accepted maximum ambit of the integrity right. However, some jurisdictions, of which the UK is one, fail to consistently recognize the author’s right to object to the complete destruction of his work. Whether moral rights doctrine can legitimately encompass such objections is a question that even civil law jurisdictions where moral rights receive extensive recognition, such as France and Germany, have yet to resolve satisfactorily.2 Why this is so is curious. Unlike the mutilation of a work, the act of destroying a work is irreversible and leaves absolutely nothing behind which may be salvageable. Thus, it is surely reasonable to imagine that destruction would have a more detrimental impact on creators than mere mutilation and, as such, there is a case for recognizing a creator’s right to object to destruction of their work. Certainly, the conventional view today is that UK copyright law does not at present recognize such a right altogether,3 and it is with the UK’s position on the destruction of copyright works that this article is primarily concerned.

The CDPA adheres to the principal international treaty on copyright law, the Berne Convention for the Protection of Literary and Artistic Works (‘Berne’). Apart from setting down minimum standards of copyright protection for authors, Berne provides for two varieties of moral rights in its Art 6bis: the paternity right (the right to be named as author) and the integrity right (the right to object to derogatory treatment of one’s work). As Berne only sets down minimum standards, signatories may choose to observe other moral rights above and beyond these two. In the UK, the CDPA implements Art 6bis in Chapter IV, ss 77–89, and recognizes both the paternity right (in s 77) and the integrity right (in s 80).

While it appears that the UK’s version of the integrity right ostensibly does not include a right to object to destruction at present, the situation is different in a number of other common law countries. For instance, the Visual Artists Rights Act in the US recognizes an artist’s right to object to destruction,4 while the Australian Copyright Act has been amended to explicitly provide for such a right.5 While India has not amended its Copyright Act to this extent,6 nevertheless, its case law on this very issue has demonstrated a willingness among India’s judiciary to interpret its laws to recognize the right.7 The UK thus appear to be an outlier among the common law countries in this regard.

The question whether the UK does, and if not, whether it should recognize such a right, has been addressed and discussed from different angles elsewhere,8 and this article adds to these earlier reflections, as none of these previous discussions thus far has attempted a forensic examination of s 80 and Art 6bis, which is this article’s contribution. Previous academic studies have focused on other elements of moral rights, some of which may have an indirect bearing on the existence of the right to object to destruction, for example the meaning of ‘reputation’9 or the concept of ‘honour’.10 Other academics, including the author, have focused more directly on the question of how the integrity right governs the destruction of artistic works.11 The reason for this specific focus on artistic works is that while the impact of destruction on textual works, such as literature or music, is clearly minimal as reprographic or digital copies reproduce the textual content of such works flawlessly, the same cannot be claimed so definitively for the fine arts. Even if copies may be made of paintings and sculptures, there is a strong argument that an original artwork is a wholly unique entity which is utterly irreplaceable. On this point, some copyright scholars, such as Liu and Waisman, argue that as the destruction of a painting or sculpture destroys only the physical embodiment of the work but not the work itself, an artist cannot invoke s 80 as the existence of their work would survive the destruction of the work’s physical form.12 This is a query of metaphysics which requires a much more in-depth debate. It is however not within the scope of this article to pursue this query as the author has already addressed this issue comprehensively in a previous article.13 In that article, with reference to the work of art philosophers on the ontology of art, the author argues that an artistic work’s physical medium is an integral part of its whole, and that destruction of the physical medium will simultaneously destroy its immaterial content.14 Essentially, it is further contended that simply viewing artistic works as purely abstract entities which cannot be destroyed does not accurately reflect how artists and those who appreciate art in the real world actually perceive and treat art.15

Building on these other studies, essentially this article endeavours to demonstrate, through a critical analysis of the relevant legislation surrounding moral rights, that, firstly, the nature of moral rights, as envisaged and generally accepted by members of the Berne Convention, including the UK, is such that ‘destruction’ may well be contemplated within the purview of Art 6bis and s 80, and, secondly, that the denial of a right to object to destruction based on s 80 CDPA as it is currently worded is not as defensible as it may at first seem.

This article is divided into two main parts. The first examines the proposed adoption of moral rights by the Berne Convention at the Rome Conference, as well as debates on the same at the Brussels Conference, paying close attention to the common law countries’ response to the proposal, in particular that of the UK. An examination of the civil law countries’ contributions in the debates at the revision conferences is also instructive as those countries were instrumental in introducing the concept of moral rights, and no doubt influential in informing the UK’s perception of moral rights. It will be shown that the conference reports indicate that during the debates of the Brussels Conference in 1948, the UK delegates were resistant to neither the concept of moral rights, nor, interestingly, the inclusion of ‘destruction’ within its scope.

The analysis of the Berne Convention debates is followed by a consideration of the reports of the UK Gregory (1951) and Whitford (1977) Committees on copyright law. The aim of this part of the article is to ascertain both the scope of moral rights as originally envisaged, and the UK’s early perception of, and relationship with, the concept of moral rights. It will be shown below that, firstly, the delegates at the conferences for the Berne Convention accepted a cultural heritage dimension to ‘moral rights’, which arguably supports an integrity right that encompassed a right to object to destruction, and, secondly, that the UK was much more receptive to ‘moral rights’ than previously thought, as well as to the idea of ‘destruction’ as an objectionable act under the integrity right. This part of the article goes on to focus on s 80 CDPA as it reads today. The discussion here begins with a scrutiny of the Parliamentary debates on the CDP Bill, where relevant, as these throw light on Parliament’s understanding of what moral rights were and what these rights are designed to achieve. This is followed by an analysis of s 80, which explains, firstly, why a claim against destruction appears prima facie to be restricted under s 80 and, secondly, why on closer inspection, such restriction is arguably not as absolute and insurmountable as originally perceived.

2 THE BERNE CONVENTION, ART 6BIS

In order to understand the ethos behind the Berne Convention’s conception of copyright and moral rights, as well as its approach to resolving conflicts engendered by differing copyright philosophies and principles, it is useful to understand the principles which underpin the Berne Convention. In the preface to a book published to celebrate the centenary of the Berne Convention (1986), the then Director General of WIPO, Arpad Bogsch, asserted that the underlying principle was a sense of justice, which served both authors and the interests of the public.16

The Berne Convention was born of a campaign encouraging greater international recognition for authors’ rights. The momentum for this was an ever-increasing focus on authors’ rights in copyright law. Prior to the Berne Convention, copyright laws were territorial in nature. The precursor to modern-day copyright was the system of privileges, which benefitted booksellers, not authors, whereby booksellers were bestowed an exclusive right to print and sell copies of manuscripts. There was initially little recognition for authors’ rights. This infant form of copyright gradually evolved over time, perhaps in slightly different directions in the common law and civil law regimes, but common to both regimes, there was an increased recognition of rights for the author. Empowered by this enhanced acknowledgement of their worth and rights, authors increasingly took it upon themselves to demand more comprehensive and universally recognized rights.

In 1858, a group of authors from several countries met in Brussels, forming the Congress of Authors and Artists,17 which later became the Association Litteraire et Artistique Internationale (ALAI), established in 1878 by Victor Hugo.18 The aim of this group was to press for legislation which recognized international rights for authors. Their resolutions were to form the bedrock for the Berne Convention, which was adopted in 1886 at an international conference in Berne. Essentially, the aim of the Berne Convention was to establish universal copyright protection for authors, although the initial approach was gradual and cautious, primarily owing to the differing philosophies of the participating countries.19 Since that very first conference in Berne, several international conferences have been held to review, debate and modify the convention to suit the needs and sensibilities of its signatory member states, and to take into account of changes in technology and industry practices. It was at the Rome Conference, held in 1928, that moral rights were debated and finally adopted under Art 6bis.

In the years prior to the Rome Conference, there had already been numerous resolutions passed at various conferences and congresses appealing for the international recognition of moral rights: the International Press Congress (Rome) 1899, the International Literary and Artistic Association 1898, and the International Literary and Artistic Association 1927; as well as the Berne Convention revision conferences: the Paris Conference of 1896, and the Berlin Conference of 1908.20 The time was thus clearly ripe for international action designed to stimulate national protection of such rights.

2.1 Rome Conference 1928

2.1.1 The debates surrounding Art 6bis

The original text of the Berne Convention did not provide specifically for moral rights until the Rome Conference of 1928 when the Italian delegation’s report presented a passionate, yet coherent argument for their inclusion.21 The Italian delegation report set out several reasons as to why it was a particularly appropriate time to protect the moral rights of authors.

Firstly, the report noted that despite the different theories on the nature of copyright, moral rights had begun to assume a more coherent and precise constitution, consisting, at the minimum, of rights of publication, authorship and integrity, and were thus increasingly capable of recognition by all countries.22 By the time of the Rome Conference, several of the convention countries had already legislated or were about to legislate on moral rights.23

Secondly, the report recognized the argument that, because of the increased uniformity of moral rights and universal acceptance, there was no further need to codify them, but countered that it was nevertheless imperative that such rights be formally safeguarded, primarily because they tended to be in conflict with other legal rights, notably the rights of copyright assignees or, where artistic works were concerned, their owners.24 Indeed the latter observation is of key importance to the main argument of this article – as the well-being of artistic works is particularly at the mercy of their owners, where the works may be threatened with poor conservation, mutilation or destruction, it is vital that artists’ rights are properly defended.

Finally, the report highlighted the increasing prevalence of developing technologies and practices likely to have a significant impact on the author, such as the reproduction of works in the mass media, the adaptation of musical works and the broadcasting of works on the radio. The report emphasized that these uses of works should be subject to the protection of moral rights.

The Italians were not the only delegation to have proposed a wording for Art 6bis. Others had either proposed their own or suggested amendments to the Italian suggestion. The original Italian suggestion was ‘The right to object to any alteration of the work that would be prejudicial to his moral interests’,25 which made no mention of ‘honour or reputation’. The intended scope of this was not clear, although it may be noted that the Italians were at pains to emphasize that the right should not allow claims based on the ‘excessive sensitivity’ of authors, to discourage baseless and unreasonable claims.26 Because of the original reference to ‘any alteration’, the scope of the treatment intended to be captured was unclear, although it clearly only envisaged alterations which were ‘prejudicial to [an author’s] moral interests’. However, it is also not clear what the Italians had intended by the phrase ‘moral interests’, which was deemed too vague by the common law countries. It was subsequently acknowledged by all present that ‘more intelligible wording’ was required.27 Some guidance as to the ‘moral interests’ envisaged can be found in the Italian memorandum. They suggested that it encompassed the author’s ‘more delicate interests of his scientific, literary or artistic personality’.28 However, it is doubtful that this addition of the idea of ‘delicate interests’ did much to aid in clarifying the nature of ‘moral interests’, described as ‘elusive’ by Adeney.29

Other delegates proposed alternative wordings which went some way to demonstrating the sentiments of the other convention countries. Poland’s suggestion was that the author should have the right to object to any distortion of ‘the way in which his work was intended to be presented to the public’, which suggests that they were very concerned with the author’s intentions. This contrasted with the Romanian delegation’s suggestion that only modifications which were ‘prejudicial to [the author’s] reputation’ should be encompassed. The Belgian contingent was concerned about any modification which would ‘alter the character’ of the author’s work while the Czechoslovakian delegates emphasized that any proposal should be resolved in favour of ensuring the work’s integrity. Clearly, the Polish, Belgian and Czechoslovakian delegations were all concerned that the author’s vision of his work should be preserved, independently of whether his reputation was affected. A similar sentiment was expressed at the previous conference held in Berlin in 1908, at which the right of translation was debated. Although the translation right is traditionally viewed as one of the author’s exclusive economic rights, the French delegate expressed his opinion from a moral rights viewpoint: ‘The author is the best judge of whether his work can be translated and which translator is the most competent to do so: in this way, he is in a position to prevent any distortion of his thought’.30 There was a clear concern that the author’s vision should not be altered per se, regardless of any impact on one’s honour or reputation.

Adeney describes the approaches of the delegations at the Rome conference on this point as ‘highly varied’.31 However, although the terminology utilized by the various delegates was indeed varied, it is submitted that the Polish, Belgian and Czechoslovakian delegates were all essentially addressing the same thing. There is arguably a common theme in their initial approaches, in that the author’s creation is paramount and that he has the right to object to any act which interferes with his creation or distorts the message which he wishes to convey without needing to make any reference to his reputation or honour. Although the final version of Art 6bis accepted at Rome made reference to ‘distortion, mutilation or other modification of the work which would be prejudicial to the author’s honour or reputation’, the application and operation of ‘honour or reputation’ here was not entirely without question.

2.1.2 The requirement of ‘honour or reputation’

One of the first matters of contention concerned the French wording of Art 6bis. Because in the definitive French version of Art 6bis, ‘qui serait prejudiciable’ [‘which would be detrimental’] was in the singular, it was thought that honour and reputation were only applicable to one of the listed treatments in Art 6bis, namely ‘modification’,32 and that distortion and mutilation were objectionable per se. There was no need to also show prejudice for these acts, which reflects the position of some countries today.33 At the Brussels Conference in 1948 however, a plural construction was substituted in the French version of Art 6bis,34 and it would appear to be the generally accepted position today, that is, that all treatments were to be similarly affected, not just modification. In the UK, the conventionally accepted interpretation of s 80 CDPA is that all acts, including distortions and mutilations, are subject to the requirement for prejudice,35 although there does exist judicial opinion to the contrary.36

The question still remains as to why it was initially thought important that the author’s vision should be protected even if the treatment of it does not harm his reputation. There was at least, at the time of the Rome Conference and thereafter when the interpretation of Art 6bis was being scrutinized and debated,37 some degree of opinion that some treatments of an author’s work were objectionable without requiring the author’s reputation to be harmed. Although it has been argued in some quarters that the initial French wording was possibly a drafting error,38 it is submitted that there is some merit in acknowledging the original French wording at face value and accepting that some treatments were at least initially thought to be objectionable per se. Indeed, those treatments which were initially not subject to the ‘honour or reputation’ limitation had a negative or damaging connotation in any case: distortion and mutilation. As stated above, in some Berne Convention countries today, for example Belgium, France and Greece, the integrity right is not restricted to acts which are prejudicial to the honour or reputation of the author.39

What did the delegates at the time consider to be the harm that is caused by any act affecting the integrity of an author’s work per se? Indeed, why do some countries today still refrain from restricting the integrity right, even after Art 6bis was amended at Brussels? The answer to this question may lie in the general perception of the value of moral rights in these countries.

Firstly, the theory underpinning moral rights doctrine in these countries is that the author imbues his work with his personality and forges an intimate unbreakable bond between himself, his message and his work. The point made here is that because an author’s work encapsulates his personality, any interference with the work, prejudicial or not, necessarily interferes with this bond and would distort the author’s personal vision and message.

Secondly, although the safeguarding of the author’s personality is paramount in civil law countries, there is also evidence that moral rights are meant to protect much more than just the author’s personality. The perpetuity of moral rights in France and other countries suggests that moral rights also play an important role in cultural protection.40 If moral rights are merely solely personality rights and hence only intended to protect the author as an individual, it is difficult to discern any harm or prejudice which he may suffer personally from a post-mortem act. Why then are such rights protected beyond the author’s death? Even in countries which do not recognize perpetual moral rights today, they at least allow moral rights to endure for as long as the copyright period which typically endures beyond the author’s lifetime, which is also the position in the UK. While it may be argued that, as moral rights serve to protect the author’s personality as reflected in his creation, and hence can theoretically and justifiably endure beyond his death, the question remains as to how the author should be compensated for any post-mortem infringement or what the appropriate remedy should be. The author is now dead and hence personally suffers no loss. McCutcheon argues that without any personal loss to the dead author, the recognition of post-mortem moral rights is incoherent.41 Therefore, she argues that post-mortem moral rights may be more appropriately justified by protecting the public interest in its cultural heritage.42 Her views reflect those of Martin Roeder, who back in 1940, argued that ‘the real reason … for protection of the moral right after the creator’s death lies in the need of society for protection of the integrity of its cultural heritage’.43 As an author’s work is a legacy to the cultural heritage of a nation, any act which diminishes their work in any way, is an assault on the nation’s cultural heritage.

Indeed, at the time of the Rome Conference, there was a growing interest in the protection of cultural heritage, particularly in Germany and Italy. German lawyers Marwitz and Kohler expressed the view that authorial works were also cultural objects, and were part of the culture of the community.44 There was also acute concern with the effect of technology, such as reproduction and broadcasting technology on the state of culture.45 Evidence of this interest in the protection of cultural heritage at the Rome Conference was particularly clear when delegates debated the issue of post-mortem moral rights. The Sub-Committee on Moral Rights expressed the hope that in time ‘every citizen [has] the right to claim respect for works that are the common heritage of mankind’ and on that note passed a resolution which encouraged the convention countries to adopt protective measures which would operate post-mortem.46 The cultural protection idea was therefore certainly at the forefront of the debate over the introduction of moral rights at the Rome Conference. If cultural protection is a key aim of moral rights in some of the Berne Convention countries, this would account for the absence of the ‘honour or reputation’ restriction in their moral rights legislation.

A notable instance of moral rights overtly playing a cultural protection role was the Indian case of Amar Nath Seghal v Union of India.47 Seghal was a case about the destruction of an artistic work by a prominent sculptor, who invoked s 57 of the country’s Copyright Act 1957. Section 57 governs moral rights and, as at the time of the suit, the requirement for prejudice to honour or reputation was absent. An interim injunction was granted by the High Court but before the case could proceed to final judgement, s 57 was amended to include the condition that honour or reputation had to be prejudiced.48 As the work had been destroyed and was no longer in existence, it was therefore possible to argue that the author’s honour or reputation could not be prejudiced by the absence of his artwork, and that therefore the author’s integrity right had not been breached. However, Judge Nandrajog chose to read the newly amended s 57 in light of the broader public policies in place in India at the time. In paragraphs 37 to 56 of his judgement, he made extensive references to the rich cultural heritage of India, the Indian Government’s Five Year Plan for Art and Culture, as well as the numerous international conventions on cultural property to which India was a party. The essence of his decision was that a failure to prevent the destruction of a cultural treasure was not only at odds with the aims of these conventions, but would also undermine the cultural heritage of India. Therefore, he urged, in paragraph 56, that ‘there would be urgent need to interpret Section 57 of the Copyright Act 1957 in its wider amplitude to include destruction of a work of art’. The judge also accepted Seghal’s argument that the destruction of his work would in any case reduce his creative corpus, thus damaging his reputation in turn, and therefore come within the ambit of the amended s 57. The High Court in Sehgal chose to look at the broader picture underlying India’s copyright regime and its moral rights provisions. It clearly questioned the aims of moral rights and also clearly understood the needs of India’s cultural heritage. In so doing, the Indian High Court was able to articulate a legal principle which married these two aims, showing how moral rights could and should serve the needs of a country’s cultural heritage.

A third answer may lie in the inclusion of ‘honour’ in the finalized version of Art 6bis. There are questions surrounding its inclusion. The requirement of both ‘honour’ and ‘reputation’ was in response to the British delegation’s lukewarm reception of the Italians’ initial proposal. Despite the Italian delegation’s confidence that the countries of the Union were in unanimous appreciation of moral rights, their proposal had taken the common law countries by surprise, and was initially ‘coldly received’ by the British countries.49 The vagueness of ‘moral interests’ was part of the reason for this chilly reception, and ‘moral interests’ was altered to ‘honour or reputation’ in the final version, mainly to accommodate the common law countries’ defamation laws.50 Although the common law countries were clearly familiar with the concept of ‘reputation’, there is some question over the inclusion of ‘honour’. Adeney reports that it was ‘suggested by nobody but … evidently satisfied all parties at the time’,51 which is curious as ‘honour’ was as unfamiliar a concept as ‘moral interests’ to the common law countries, and yet was not questioned but allowed to remain. Apart from some reports that the common law countries were sceptical of the proposal to include moral rights, there appears to be limited information available on their actual objections, and regrettably little information regarding their opinions on the concept of ‘honour’.

According to Adeney, the term ‘honour’ had been previously referred to in French and German cases.52 It is possible to postulate that ‘honour’ was a reflection of the French conception of moral rights, which was premised on a ‘right to respect’, now codified in its intellectual property code.53 The 1978 WIPO Guide to the Berne Convention also confirms that the right of integrity is also sometimes referred to as the ‘right of respect’.54 Marcel Plaisant, the French delegate, expressed his views on ‘honour’, saying that it was to ‘prohibit deformations which risk prejudicing the reputation of the author, or even more simply, altering the moral physiognomy under which the author presents himself to the cultivated public’,55 thus employing a rather wide interpretation of the restriction and evidently concerned with any changes that would misrepresent an author’s work, and thus his personality, to the public. Plaisant’s take on ‘honour’ clearly reveals a concern with the author’s control over any representation of his work.

The conclusions that can be drawn from the above discussions are, firstly, that many of the civil law countries were in favour of moral rights which addressed the integrity of works per se, without the need to subject them to a requirement for prejudice. Based on the views expressed by the representative delegates of these countries, they were clearly concerned about the integrity of the author’s message, in other words, the work’s completeness. The inclusion of ‘honour or reputation’ aimed to appease the common law countries but did not truly reflect their preferred approach. Indeed, many Berne Convention countries have chosen not to include this restriction in their legislation today. If the completeness of a work is paramount in interpreting the integrity right, then the destruction of a work will fall foul of this.

Secondly, it is clear that at the time of the Rome Conference, many countries were concerned with the role played by moral rights in protecting cultural heritage. It is reiterated that the protection of post-mortem moral rights may only be justified logically on this basis, therefore underpinning the cultural protection role of moral rights, which should not be overlooked. It then follows that if moral rights are designed to protect cultural heritage, it makes sense to extend such rights to cover the intentional or negligent destruction of artistic and cultural works.

2.1.3 Input of the UK and common law countries

The civil law countries led the debates surrounding the formulation of Art 6bis and the development of an international conception of moral rights. The influence of the British contingent on the development of the Berne Convention, especially the introduction of Art 6bis was curiously limited, or in Ricketson’s view, merely reactive,56 considering the extensive wealth and dominance of the UK at the time. The reasons why are unknown and the only conclusion that can be drawn is that the UK and other common law countries were, albeit grudgingly, ultimately accepting of the general concept of moral rights.

2.2 Brussels Conference 1948

If the UK and the other common law countries failed to take the initiative at the Rome Conference and were not particularly involved in the formulation of Art 6bis, their approach at the Brussels Conference was markedly different. The delegates were apparently adamant that the provision should not be reinforced or developed any further.57 For instance, it was proposed by the civil law countries that authors should be able to object to any utilization of the work but this was strongly objected to by the British delegation. The definitive French version adopted at the conference, ‘à toute autre atteinte à la même œuvre’ [‘to any other violation of the same work’] thus referred instead to ‘atteinte’, which can be translated as ‘violation’.58 However, it is interesting to note that the official but not definitive English version merely refers to ‘action’, which is surely broader and less specific than ‘violation’. This was likely an oversight, as the word ‘derogatory’ was inserted before the word ‘action’ at the Stockholm Conference in 1967 in order to bring the wording into line with the French version. In respect of the proposal to extend the duration of moral rights beyond the expiration of the copyright term or at least until the death of the author, the UK insisted that member states should be left to decide on the term.

Thus the UK delegates were more rigorous in their approach post the Rome Conference, reflecting their concerns over the scope of moral rights. Given the UK’s much more robust objections at this time, it is somewhat surprising that the UK was apparently open to the idea of including ‘destruction’ within the right of integrity, as will be discussed below.

2.2.1 Debates on destruction

The Hungarian delegation proposed extending the right of integrity to specifically encompass destruction, arguing that this could be logically included as it ‘would complete the notion of mutilation’.59 This was not universally supported by all delegates during the debates. For instance, the representatives of the Nordic countries objected specifically to the inclusion of the word ‘destruction’ while the delegation from the Netherlands expressed uncertainty. Interestingly, the British delegation is recorded, in Marcel Plaisant’s report, to have expressly agreed to and supported the use of the word ‘destruction’, and their support of the Hungarian proposal was acknowledged with gratitude by the Hungarian delegation.60 According to the New Zealand delegate’s report, which was not as detailed as Plaisant’s, there was such considerable debate on this point, that it clearly indicated the Conference’s desire ‘to protect works effectively against all derogations’,61 including destruction. In the end, the term ‘destruction’ was not expressly included. However, it should be noted that the Italians argued that the words ‘à toute autre atteinte à la même œuvre’ were sufficiently wide to include destruction and that, importantly, not one delegate at the conference opposed this interpretation.62 Additionally, a recommendation was passed urging member countries to include destruction expressly within their own legislation.

The conclusion thus is that, firstly, destruction was clearly contemplated, and indeed desired by the delegates, including the British representatives. Secondly, even though Art 6bis was not amended to specifically refer to destruction, the wording of the recommendation passed at the conference suggests that countries wishing to find implicit prohibition of destruction within the article could do so. The recommendation was worded as follows:

Noting that Article 6bis of the Convention, though it permits the author to object to any deformation, mutilation or other modification of his work, or to any other violation of the same work which would be prejudicial to his honour or to his reputation, does not prohibit in express terms the destruction of works, the Conference makes the recommendation that the countries of the Union should introduce into their domestic legislation dispositions prohibiting the destruction of literary and artistic works. [emphasis added]

The words ‘does not prohibit in express terms the destruction of works’ imply that destruction has merely not been expressly prohibited but that all the same such prohibition is warranted under the convention.63 In any case, there is an express recommendation that convention countries should allow for such a restriction.

3 UK IMPLEMENTATION OF ART 6BIS

The UK’s copyright law and its compliance with the Berne Convention underwent two reviews, by the Gregory Committee in 1952 and the Whitford Committee in 1977. The Gregory Committee was satisfied that Art 6bis rights were met with adequately in other areas of UK law, although the Whitford review was of a different opinion.64 In particular, where the integrity right was concerned, it was recognized by both committees that the UK had to rely on the law of defamation in order to fulfil its obligations. However, the Whitford Committee pointed out that in comparison with the integrity right formulated in Art.6bis, the law of defamation failed authors in at least two ways, firstly because for a defamation action to succeed, the public must have known that the claimant was the author and, secondly, an action for defamation dies with the person defamed, unlike the integrity right which endures beyond the death of the author.65 It was not until the enactment of the CDPA in 1988, which included sections relating to moral rights, that moral rights were formally recognized within the UK.

3.1 Parliamentary debates on the Copyright Designs and Patents Bill

The debates on the moral rights provisions of the CDP Bill were lively and impassioned in parts, particularly so in the House of Lords. The clear sentiment underpinning the Bill as a whole was the recognition of creativity as a valuable asset to society. In the House of Commons, Mr Toby Jessel declaimed that ‘to be creative seems to me to be fundamental. The creativity of artists, performers, composers and writers is basic to the enrichment of people’s lives’.66 In introducing the Bill for a second reading, Mr Kenneth Clarke pointed out that the aim was to ‘promote and protect creative talent’.67

As for moral rights in particular, both Houses recognized their importance to creators. The proposed Act was ‘to help authors and directors to establish and defend their artistic reputation’.68 At first glance therefore, the debates would appear to centre on the ‘reputation’ of authors. For instance, the Earl of Stockton said that ‘moral rights are of great importance to authors and other originators of copyright works, who value their artistic reputation as much as their financial rewards for their works’.69 This was not the only reference to ‘reputation’, and it should be noted it is used as a contrast to ‘financial rewards’. Lord Morton of Shuna and Lord Hutchinson also claimed that moral rights were to do with reputation, although as will be seen later, they used the wording in support of compensation for injured feelings, which in turn suggests that they did not consider ‘reputation’ as an economic criterion. In general, the parliamentary debates on moral rights were centred on reputation, which nevertheless arguably has an economic dimension.70

Lords Morton and Hutchinson made their reference to reputation in response to the Government’s spokesman Lord Beaverbrook’s proposal to insert a clause excluding claims for injury to feelings, on the basis that such a clause would defeat the purpose of moral rights, which was to protect reputation not economic rights. Lord Beaverbrook’s reply to Morton and Hutchinson on this point was that as the loss of reputation was an economic loss, it would still be protected adequately despite the exclusion clause.

Thus it is interesting to note that while the members in both Houses made reference to the term ‘reputation’ in the debates on moral rights, it appears that there may have been a divergence in opinion about the precise character and scope of ‘reputation’. On the one hand, Lord Beaverbrook, as the Government’s representative, clearly saw reputation as embodying economic rights while the other members appeared to use the word reputation in direct contrast to economic rights. Other members who did not make express reference to reputation focused on the proposed sub-clause to avoid compensation for injured feelings. Baroness Birk expressed disapproval of the proposal, saying that ‘there must be some compensation if we are to have this scheme of moral rights’,71 while Lord Willis wondered why copyright owners should not be compensated for injured feelings if other areas of law recognized such a remedy. Lord Graham pointed out that ‘the point of moral rights is that emphasis should be placed on the artistic and creative integrity of directors and writers and not only on economic criteria’.72 However, Lord Beaverbrook replied to these objections saying that he had been advised that compensation may not be obtained generally for injured feelings in law. This was a somewhat surprising response as it was then, as it is now, possible to obtain damages for injured feelings in other areas of the law, and thus was specifically provided for in the Race Relations Act 1976 and the Sex Discrimination Act 1975, both of which were highlighted later in the debates by Lord Morton and Lord Williams of Elvel.73

Indeed, Lord Williams set out several cogent reasons for leaving out the proposed exclusion clause. Firstly, he argued that the UK’s obligations under the Berne Convention should not be limited by such an exclusion and if the reason for this was to discourage frivolous actions, then the courts were more than able to deal with them. He then pointed out the other areas of law in which injured feelings are compensated and concluded that ‘we do not think that injured feelings are to be taken lightly’. Lord Lloyd supported this view, saying that as the infringement of moral rights is likely to be in the nature of a tort, and as tort recognized damages for injured feelings, he could see no reason why such an exclusion should be made.74

The extent to which the debates considered this issue of injured feelings is telling. It at least goes to show the regard that several members of the House of Lords had for moral rights, in that they understood that there was a subjective element to this set of rights, and that they stood in stark contrast to the economic rights afforded to copyright owners. The slight ambiguity in the members’ understanding of ‘reputation’ also demonstrates that although the participating members were all talking about ‘reputation’, they may well have been approaching the concept from different angles. In any case, the idea of compensating injured feelings was clearly of prime importance to the debaters of the Copyright Bill when considering the proposed moral rights provisions. This in turn suggests that despite the Government’s emphasis on the economic elements of copyright law and also moral rights, the actual legislators who debated the bill were clearly more mindful of the non-economic concerns of authors and artists. The House of Lords thus was particularly sensitive to the objective of moral rights, in that they aim to safeguard against injury to feelings, as opposed to the aim of copyright which governs the economic rights of authors; for what else were moral rights for if not to compensate for something different to that already covered by copyright?

These debates, which questioned the extent to which authorial feelings may be protected by moral rights, help to throw further light on the interpretation of the words ‘honour’ and ‘reputation’ in s 80, and the question of whether the derogatory treatment of the author’s work was to be subjectively or objectively assessed. According to some scholars, it has been thought that ‘honour’ may refer to ‘what a person thinks of themselves’, thus involving subjectivity and the own author’s feelings, while ‘reputation’ may be similar to the concept as it is utilized in defamation law, that is, a more objective viewpoint, as it involves asking what it is that right-thinking members of society would make of the defendant’s actions or conduct. Judicial interpretation of s 80 in the few UK cases on this area has favoured focusing on the concept of reputation, rather than honour, as the former concept is more familiar territory to common law jurists, and it avoids potentially unreasonable and spurious claims by offended authors. Clearly however, as honour is a key element of both Art 6bis and s 80, it must play a crucial and alternative role to that played by reputation, and should not be ignored. Other scholars thus offer other possible interpretations of s 80. For instance, it has been argued that ‘honour’ perhaps should be re-interpreted as a ‘right of respect’,75 which would encompass both injury to feelings as well as enabling a more objective assessment, as some treatments are more clearly and obviously disrespectful, arguably including the deliberate destruction of a copyright work. The act of destroying an author’s work without his consent and without good reason,76 is at least prima facie objectively disrespectful, in addition to being injurious to the author’s feelings. Such acts would fall within a breach of a ‘right to respect’. Therefore, under this interpretation, where the wanton or unreasonable destruction of a work is clearly disrespectful and therefore damaging to one’s honour, this clearly fulfils the requirements of s 80. Where ‘reputation’ is concerned, Aplin et al. have argued that reputational harm should be conceived as harm to one’s dignity, subject to a subjective test linked to the author’s objection to treatment of her work.77 From such a perspective, where an author has put her heart and soul into the creation of her work, the unauthorized destruction of such work is at least arguably contemptuous of her dignity, and again falls within the ambit of s 80.

It is in any case clear that the House of Lords differentiated between the role of copyright and that of moral rights. If we are to accept that moral rights are primarily concerned with injury to one’s feelings or dignity, rather than any economic concerns, then it follows that it would at least arguably be easier to accommodate a right to object to destruction with UK moral rights. Even if it is not possible to demonstrate that destruction causes economic damage, arguably, the total destruction of a cherished work is surely at least hurtful to its creator’s feelings, and thus falls or should fall within the purview of s 80.

3.2 Providing for ‘destruction’ in s 80 CDPA 1988

Unfortunately, the parliamentary records do not appear to reveal any reference to the inclusion of ‘destruction’. We have to examine the relevant provisions in the CDPA and cases to ascertain if ‘destruction’ may possibly be contemplated under UK moral rights provisions as they currently read.

There are several reasons which support the view that there is no right against destruction under UK moral rights. Firstly, not only is there no express provision for destruction under the CDPA,78 it is also possible to argue that the reason why the integrity right does not include the act of destruction is the fact that nothing remains behind post-destruction which may affect the author’s honour or reputation.

Apart from this, other reasons have also been posited, which are to do with the wording of s 80, and with which this article is primarily concerned. It has been argued, firstly, that the narrow and exclusive definition of ‘treatment’ under s 80 is unable to encompass destruction, and, secondly, that the additional requirements of s 80 subsections (3), (4) and (6), which call for the public communication of the derogatory treatment, would mean therefore that private acts would not be considered infringing. It is contended below that these reasons are not as obstructive as may be considered.

3.2.1 Definition of ‘treatment’

The first argument proceeds as follows: the definition of ‘treatment’ within s 80 is a closed category of four distinctive acts: addition to, deletion from, alteration or adaptation – none of which may at first glance conceivably include ‘destruction’. However, several challenges may be raised against this view.

Firstly, it may be argued that the words ‘deletion from’ could include ‘destruction’ in the sense that the entire work has been deleted from itself. This is arguably further supported by s 89(2) which states that the rights conferred by s 80 apply in relation to ‘the whole or any part of a work’. This subsection was presumably inserted to clarify that ‘addition to’ or ‘deletion from’ are not necessarily subject to any requirement of substantiality,79 and that therefore even the smallest addition or deletion may be considered ‘treatment’. However, it may also be argued that, applying s 89(2), the ‘whole’ work may be deleted from itself, thus falling within the definition of ‘treatment’, or at least as Davies and Garnett have argued, that if ‘the removal by destruction or obliteration of a large portion from an original work would clearly amount to a deletion of that part from it, … it might be thought strange if the total eradication of the subject matter would not also do so’,80 hence supporting the argument that total destruction of the original embodiment of a work could amount to ‘treatment’ for the purposes of s 80.

Secondly, there has been judicial commentary on s 80(2) which suggests that s 80(2) should not be narrowly construed. To date, there has been no case on the destruction of a work in the UK, thus still leaving open the question of the UK courts’ likely interpretation of s 80 where destruction is concerned. HHJ Fysh has however commented that ‘treatment’ was a ‘broad, general concept; de minimis acts apart, it implies a spectrum of possible acts carried out on a work, from the addition of say, a single word to a poem to the destruction of an entire work’.81 HHJ Fysh further ventured that he saw ‘no legislative intention to limit the meaning of the word’ notwithstanding the wording of s 80(2), and that any limit to the generality of ‘treatment’ would arise from any prejudice which may result to the honour or reputation of the author.82 HHJ Fysh also referred to the judgement delivered in Amar Nath Seghal v Union of India,83 which stated that destruction could be considered the ultimate form of mutilation.84 This is meaningful as the relevant section of the Indian Copyright Act is similar to Art 6bis of the Berne Convention.

Thirdly, it has been suggested that destruction of a work may be considered to be distortion or mutilation carried out to its fullest extent,85 or the ‘ultimate infringement of [artists’] moral rights’.86 Professor Jacques de Werra states that to destroy is to ‘nier purement et simplement l’existence de l’œvre, forme ultime de l’irrespect’, that is to ‘deny the work its existence: the ultimate form of disrespect’.87 Hence, it is arguably erroneous to conclude unreservedly that ‘treatment’ does not include the act of destruction.88

3.2.2 Further requirements in s 80 CDPA

The requirements set out in subsections (3), (4) and (6) of s 80 CDPA are a deviation from the requirements of Art 6bis of the Berne Convention. Subsections (3) and (4) provide that infringement only occurs if the derogatory treatment of a literary, dramatic, musical or artistic work is published commercially, exhibited or performed in public. The subsections also specify the issuing to the public of copies of the film, sound recording, graphic work or photograph of the treatment. Section 80(6) provides that, in relation to a film, infringement occurs when the derogatory treatment is shown in public or copies of the derogatory treatment are distributed to the public.

Therefore, while Art 6bis states that the author has the right to object to derogatory actions per se, under UK law, ss 80(3), (4) and (6) provide that the author may only do so if a further act has taken place, that is, that basically the derogatory treatment of his work is publicized. The manner and extent to which subsections (3), (4) and (6) may affect destruction are discussed below. The author in the UK has no redress against derogatory treatment per se, surely a departure from the intention of Art 6bis.89 However, it must be pointed out that although it may be very attractive to interpret s 80(1) as implying a right to object to derogatory treatment itself without more, Adeney, in examining the legislative history behind s 80, thinks it highly unlikely that Parliament intended this outcome, and that it had always intended to limit the integrity right as set out in the subsequent subsections in s 80;90 the reasons for so doing are not made explicit.

Section 80 thus reduces the scope of application of Art 6bis by requiring what is essentially a publicized ‘derogatory treatment’ of the work rather than simply requiring a ‘derogatory treatment’ of the work. Why was it necessary to require a public display of such treatment? This would mean that a private act of distortion, mutilation or other unauthorized treatment of the author’s work will not infringe the author’s integrity right. Could it be that Parliament intended to involve the public because the test of whether the derogatory treatment was prejudicial to the author’s honour or reputation was meant to be a purely objective one? If a work is mistreated in private, then the only thing that is injured are the author’s own feelings, if and when he discovers the mistreatment. There are then valid reasons for adopting an objective rather than subjective test. If the test is a purely subjective one, then this means that the author’s feelings and only his feelings are central to his claim; the obvious risk here is having to cater unduly to an author’s whims which may be unfounded. Furthermore, the need for the public to have witnessed the derogatory act would support the three-pronged approach adopted from defamation law: a requirement of publication; an assessment of what ordinary people would have reasonably understood the act to have meant, in other words an objective test; and a negative impact of the act on reputation.

The requirement in subsections (3), (4) and (6) that a further act of publication has to take place before infringement may be established, may present an obstacle to authors wishing to protest against the destruction of their works. This is especially so if, following the intricate analysis of the term ‘derogatory treatment’ by Davies and Garnett in Moral Rights, ‘derogatory treatment’ is interpreted as ‘the result of an action’, rather than ‘the action of treating a work’.91 Davies and Garnett assert that the use of ‘derogatory treatment’ in the CDPA is ambiguous and is used in both possible senses. However, where subsections (3), (4) and (6) are concerned, the authors construe ‘derogatory treatment’ as clearly being ‘the result of an action’.92

Evidently, if this is the case, total destruction of a work would leave nothing behind, that is, there will not be any tangible result post act, and thus, it could not be ‘commercially published’ for the purposes of s 80(3) or form the subject of a photograph or graphic work for the purposes of s 80(4)(c). It is submitted that this particular interpretation of ‘derogatory treatment’, even for the purposes of subsections (3) and (4), is not absolutely clear and consistent. While it may be arguable that perhaps only the result of a treatment may be ‘commercially published’, ‘exhibited’ or be the subject of a photograph, the other acts stipulated in the subsections do not necessarily imply the same. For instance, s 80(3) also lists ‘performs in public … a derogatory treatment of the work’ (emphasis added), which seems to suggest the action of treating a work. In such a situation, the public burning of a book or painting may fulfil this requirement. It could also be argued that the showing of a film of burning an artwork may fulfil s 80(4)(b).93 Therefore, it is arguable that the public destruction of a work of art may fulfil these additional requirements, although it must be noted that a private act of destruction may possibly be excluded.94

4 CONCLUSION

This article has endeavoured to present intelligence gleaned from an analysis of the implementation of Art 6bis and s 80 CDPA 1988, and to utilize these findings to answer the question set out at the start of the article. Essentially the article aims to demonstrate, through a textual and doctrinal analysis of the relevant legislation surrounding moral rights, that, firstly, the nature and minimum boundaries of moral rights as envisaged and generally accepted by members of the Berne Convention, including the UK, are such that ‘destruction’ may well be contemplated within its purview and, secondly, that the exclusion of ‘destruction’ from s 80 CDPA is not as defensible as it seems.

A close analysis of the records of the Rome Conference and Brussels Conference proceedings reveal the varying views of the Berne countries. What has emerged is that a number of countries laid emphasis on the integrity of the author’s work, without necessarily involving the author’s reputation or even honour. The concern was the integrity, in other words, the purity and completeness of the author’s vision and message as embodied within his work. While it is accepted that a change in this vision would likely affect its author’s honour or reputation, this was not a necessary condition for many Berne countries. Additionally, it would appear that ‘honour or reputation’ was included to appease the common law countries, and that there was little evidence of a substantive reason, either as a matter of policy consideration or legal argument, for their inclusion. It could be argued, perhaps, that these terms reflected defamation laws in the common law countries. However, defamation laws are not entirely successful in protecting authors in the way intended by moral rights, and while reputation may possibly give a nod to UK defamation laws,95 the inclusion of honour remains somewhat of a puzzle. In any case, various interpretations and analyses of honour and reputation offered by copyright scholars suggest that these requirements do not present an insurmountable obstacle to recognizing destruction as an infringing act, amounting to a breach of the integrity right. If an overriding concern of moral rights was arguably to protect the integrity of the work per se, then, arguably, the entire destruction of a work would destroy its integrity.

Furthermore, there was at the time of the Rome Conference evidence of much faith in the ability of moral rights to safeguard cultural heritage. Indeed, the very acceptance today, in both civil law countries and common law countries, including the United Kingdom, of the endurance of moral rights beyond the author’s death, indicates a conception of moral rights which embraces a cultural heritage protection component. As the destruction of a work would leave an irreparable void in the cultural heritage to which it belongs, it is clearly an act which should be addressed by moral rights. It may also be recalled that the UK representatives at the Brussels Conference approved of the Hungarian proposal to include a reference to ‘destruction’ under Art 6bis.

Finally, the close interrogation of the premise and wording of s 80 has revealed the following. Where the underlying premise of s 80 is concerned, the parliamentarians who debated the moral rights provisions were not only not in entire agreement as to the concept of ‘reputation’, they were certainly concerned with two things: the contribution of moral rights to the protection of ‘artistic and cultural integrity’ in the UK (as stated by Lord Graham), and the injured feelings of the author, both of which would support a right to object to destruction.

As regards the argument that the strict definition of ‘treatment’ in s 80 excludes destruction, it has been countered that there is little reason to accept this view. Destruction is arguably the ultimate form of ‘mutilation’, and there is little logic to treating ‘destruction’ of a work more favourably than acts such as ‘addition to, deletion from, alteration or adaptation’, which comprise the definition of ‘treatment’ in s 80. HHJ Fysh, a High Court IP specialist judge has already ventured as much. And, if so, then there is no reason to exclude ‘destruction’ from the ambit of ‘treatment’.

Finally, the argument that the public communication requirements in subsections (3), (4) and (6) would exclude destruction fails on two grounds. Firstly, these requirements are foreign to Art 6bis Berne Convention and it could be argued that the UK has therefore failed to implement the Berne Convention correctly and faithfully.96 Secondly, notwithstanding the validity of these additional requirements, it has been shown that even if these requirements may exclude acts of private destruction, they arguably do not exclude public destruction of works, and hence present no real obstacle to recognizing ‘destruction’ as an act to which creators may object.

  • 1

    Dworkin Gerald , '‘Moral Rights in English Law – the Shape of Rights to Come’ ' (1986 ) 8 European Intellectual Property Review 329 : 335.

  • 2

    Merryman JH , '‘The Refrigerator of Bernard Buffet’ ', in JH Merryman (ed), Thinking About the Elgin Marbles: Critical Essays on Cultural Property Art and Law , (Kluwer Law International Ltd 2000 316 , ) 327.

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    The recognition of such a right is either denied outright or considered ambiguous according to some scholars: Henry Hansmann and Marina Santilli, ‘Authors’ and Artists’ Moral Rights: A Comparative Legal and Economic Analysis’ (1997) 26 The Journal of Legal Studies 95, 110; Cyrill P Rigamonti, ‘Deconstructing Moral Rights’ (2006) 47 Harvard International Law Journal 353, 371; Martin A Roeder, ‘The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators’ (1940) 53 Harvard Law Review 554, 569. According to others, there is clear recognition in some countries; see Gillian Davies and Kevin Garnett, Moral Rights (2nd edn, Thomas Reuters (Legal) Limited 2016) 245.

  • 3

    Dworkin Gerald , '‘The Moral Right of the Author: Moral Rights and the Commonlaw Countries’ ' (1994 ) 19 Columbia Journal of Law & the Arts 229 : 250.

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    However, HHJ Fysh has cast doubt over this conventional view of s 80. See Harrison v Harrison [2010] ECDR 12, [2010] EWPCC 3 [60].

  • 4

    17 USC §113(d).

  • 5

    Copyright Act 1968, s 195AI.

  • 6

    Copyright Act 1957, s 57.

  • 7

    Amar Nath Seghal v Union of India (Uoi) and Anr (2005) 30 PTC 253 (Delhi High Court).

  • 8

    Different arguments have been offered to support the view that the integrity right encompasses a right against destruction contrary to conventional views, for example that artistic works do require a material form for copyright to subsist (contrary to Cuisenaire v Reed [1963] 5 FLR 180), which means that they can be destroyed, which in turn impacts upon the scope of the integrity right; that owners of culturally valuable works of art are mere custodians with a duty to preserve such works, which overrides any notion of jus abudenti; or that the destruction of a copyright work injures its author’s honour and thus is a breach of s 80. See Tania Cheng-Davies, ‘Can a Work of Art Be Destroyed Under Copyright Law?’ (2015) Intellectual Property Forum 32; Tania Cheng-Davies, ‘Honour in UK Copyright Law is Not “A Trim Reckoning” – its Impact on the Destruction of Works of Art’ (2016) 36 Oxford Journal of Legal Studies 272; Tania Cheng-Davies, ‘A Work of Art is Not Just a Barrel of Pork: The Relationship between Private Property Rights, Moral Rights Doctrine and the Preservation of Cultural Heritage’ (2016) Intellectual Property Quarterly 278. In Tania Cheng-Davies, ‘The Fine Arts in a Fine City: Moral Rights in Singapore’ (2021) Intellectual Property Quarterly 1, the state of moral rights and its impact on the fine arts in Singapore, in particular where mutilation and destruction of artistic works occur without the consent of the artist, are examined.

  • 9

    Aplin Tanya & Shaffan Mohamed Ahmed , '‘The Concept of “Reputation” in the Moral Right of Integrity’ ' (2019 ) 14 Journal of Intellectual Property Law & Practice : 268.

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  • 10

    Patricia Loughlan, ‘The Right of Integrity: What Is in that Word Honour? What Is in that Word Reputation?’ (2001) 12 Australian Intellectual Property Journal 189;

    Lim Dennis , '‘Prejudice to Honour or Reputation in Copyright Law’ ' (2007 ) 33 Monash University Law Review : 290.

  • 11

    Liu Deming , '‘English Copyright Law Makes the Poor “Snowman” Sculptor Poorer’ ' (2013 ) 35 European Intellectual Property Review : 674.

    Agustin Waisman, ‘Rethinking the Moral Right to Integrity’ (2008) 3 Intellectual Property Quarterly 268; Cheng-Davies, ‘Can a Work of Art be Destroyed Under Copyright Law?’ (2015) 103 Intellectual Property Forum 32.

  • 12

    Liu (n 11); Waisman (n 11); Davies and Garnett (n 2) para 8-024.

  • 13

    Cheng-Davies (n 11).

  • 14

    ibid.

  • 15

    An experiment conducted at the University of Texas seeking to ascertain if people believed that an artwork still exists after its physical embodiment is destroyed, concluded that people were generally unwilling to accept that visual artworks continue to exist post destruction of their original physical form. See

    Jessecae K Marsh and Darren H Hick, Beliefs about Experiencing and Destroying Art (Cognitive Science Society 2014).

  • 16

    Bogsch Arpad , '‘The First Hundred Years of the Berne Convention for the Protection of Literary and Artistic Works’ ', in The Berne Convention for the Protection of Literary and Artistic Works from 1886 to 1986 , (International Bureau of Intellectual Property 1986, ).

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  • 17

    Goldstein P & Hugenholtz PB , International Copyright: Principles, Law, and Practice , (OUP , USA 2013 ) 34.

  • 18

    ibid; Peter Burger, ‘The Berne Convention: Its History and its Key Role in the Future’ (1988) 3 The Journal of Law & Technology 1.

  • 19

    ibid 13.

  • 20

    Ladas Stephen , International Protection of Literary and Artistic Property , (Macmillan , 1938 ) 579 -80.

  • 21

    Memorandum by the Italian Delegation (Moral Rights) Rome Conference 1928, in The Berne Convention for the Protection of Literary and Artistic Works from 1886 to 1986 (International Bureau of Intellectual Property 1986) 162.

  • 22

    ibid 163.

  • 23

    Davies and Garnett (n 2) 41–2.

  • 24

    Bogsch (n 16).

  • 25

    Memorandum by the Italian Delegation (Moral Rights) Rome Conference 1928 (n 21) 162.

  • 26

    ibid 164.

  • 27

    E Piola Caselli, Actes de la conférence de Rome, 7 mai – 2 juin 1928, General Report of the Drafting Committee (1928) in ibid, 172;

    Adeney Elizabeth , The Moral Rights of Authors and Performers: An International and Comparative Analysis , (OUP , 2006 ) 120.

  • 28

    Memorandum by the Italian Delegation (Moral Rights) Rome Conference 1928 (n 21) 164.

  • 29

    Adeney (n 27) 120.

  • 30

    Lous Renault, Conference in Berlin, 1908, in The Berne Convention for the Protection of Literary and Artistic Works from 1886 to 1986 (International Bureau of Intellectual Property 1986) 151.

  • 31

    Adeney (n 27) 120.

  • 32

    ibid 121.

  • 33

    France and Belgium for instance.

  • 34

    Adeney (n 27) 121, 140–41.

  • 35

    Lionel Bently and others, Intellectual Property Law (6th edn, OUP 2022) 316–17; Adeney (n 27) para 14.72.

  • 36

    Morrison Leahy Music Ltd v Lightbond Ltd [1993] EMLR 144, ChD;

    Tidy v Natural History Museum (1998) 39 IPR 501, 504.

  • 37

    Adeney (n 27) 6.52.

  • 38

    It has been argued that it was possibly a drafting error: ibid., 140, para 7.31.

  • 39

    Davies and Garnett (n 2) paras 11-012, 13-011, 15-015.

  • 40

    Adeney (n 27) 170.

  • 41

    McCutcheon Jani , '‘Dead Loss: Damages for Posthumous Breach of the Moral Right of Integrity’ ' (2016 ) 40 Melbourne University Law Review : 240.

  • 42

    If moral rights are to play a role in the protection of cultural heritage, it may however be queried as to why the UK only recognizes moral rights up to the end of 70 years following the death of the author, instead of in perpetuity.

  • 43

    Roeder (n 2) 554, 575.

  • 44

    Adeney (n 27) 70.

  • 45

    ibid 72.

  • 46

    Jules Destrée, Conference in Rome, 1928, II. Report of the Sub-committee on Moral Rights, in Bogasch (n 16) 165.

  • 47

    Amar Nath Seghal v Union of India (Uoi) and Anr (2005) 30 PTC 253 (Delhi High Court).

  • 48

    Mira T Sundara Rajan, Moral Rights: Principles, Practice and New Technology (1st edn, OUP 2011) 1767.

  • 49

    SG Raymond, Report of the New Zealand Delegate on the International Copyright Conference at Rome (21 July 1928).

  • 50

    Ladas (n 20) 532; Mihaly Fiscor, Guide to the Copyright and Related Rights Treaties Administered by WIPO (WIPO 2003) BC-6bis.4;

    Sundara Rajan Mira T , '‘Tradition and Change: The Past and Future of Authors’ Moral Rights’ ', in Toshiko Takenaka (ed), Intellectual Property in Common Law and Civil Law , (Edward Elgar , 2013 ) 139.

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  • 51

    Adeney (n 27) 120. However, in

    Adeney Elizabeth , '‘The Moral Right of Integrity: The Past and Future of “Honour”’ ' (2005 ) 2 Intellectual Property Quarterly : 111 Adeney claims that the Italians had proposed the term, although she does not cite an authority for this..

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  • 52

    Adeney, The Moral Rights of Authors and Performers (n 27) 120; Adeney, ‘The Moral Right of Integrity’ (n 51).

  • 53

    Intellectual Property Code art L121-1 (‘An author shall enjoy the right to respect for his name, his authorship and his work’).

  • 54

    WIPO, Guide to the Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 1971) (WIPO 1978) 42.

  • 55

    Quoted in Adeney (n 51) 123 (emphasis added).

  • 56

    Ricketson Sam , '‘The Public International Law of Copyright and Related Rights’ ', in Isabella Alexander & H. Tomas Gomez-Arostegui (eds), Research Handbook on the History of Copyright Law , (Edward Elgar, 2016 ).

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  • 57

    Adeney (n 27) 134.

  • 58

    ibid 136.

  • 59

    Plaisant Marcel , Documents de la conference de Bruxelles 5–26 juin 1948 , (International Bureau of Intellectual Property , 1951 ) 197.

  • 60

    ibid 197.

  • 61

    Mason HGR , Report by the New Zealand Minister of Justice on the International Copyright Conference at Brussels in 1948 , (International Bureau of Intellectual Property , 1951 ) 4.

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  • 62

    Plaisant (n 59) 197.

  • 63

    Adeney (n 27) 138. While it is clearly not a requirement to include destruction within moral rights, this recommendation indicates that it is certainly ‘desirable’ for member states to consider doing so. See Dworkin (n 3) 251 fn 81.

  • 64

    Rajan (n 48) 138.

  • 65

    Whitford Committee, Report of the Committee to consider the Law on Copyright and Designs (Cm 6732, 1977) paras 52–3.

  • 66

    Mr Toby Jessel MP, Hansard HC Deb 28/4/1988, vol 132 cc 579–580.

  • 67

    Mr Kenneth Clarke MP Hansard HC Deb 28/4/1988 vol 132 cc 525.

  • 68

    Carty Hazel & Hodkinson Keith , '‘Copyright Designs and Patents Act 1988’ ' (1989 ) 52 Modern Law Review 369 : 371.

  • 69

    Earl of Stockton, Hansard HL Deb 12/11/1987 vol 489 cc 1478.

  • 70

    As is the case in the law of defamation.

  • 71

    Baroness Birk, Hansard HL Deb 10/12/1987 vol 491 cc 416.

  • 72

    Lord Graham of Edmonton Hansard HL Deb 10/12/1987 vol 491 cc 415.

  • 73

    Lord Williams of Elvel Hansard HL Deb 25 February 1988 vol 493 cc 1363–1364.

  • 74

    Lord Lloyd of Hampstead Hansard HL Deb 25 February 1988 vol 493 cc 1364.

  • 75

    Cheng-Davies, ‘Honour in UK Copyright Law is Not “A Trim Reckoning”’ (n 8).

  • 76

    A good reason may for example include a health and safety issue.

  • 77

    Aplin and Mohamed (n 9).

  • 78

    It is worth noting that the Directive 2004/48/EC (Enforcement of IP Rights), implemented in the UK by The Intellectual Property (Enforcement, etc.) Regulations 2006, may apply to a breach of moral rights for causing ‘moral prejudice’, i.e. damage above and beyond economic damage. However, at the moment, destruction does not appear to constitute a breach of the integrity right in the UK. This means that even if the author has been unduly affected by it, beyond the economic damage suffered, he is unable to claim damages for ‘moral prejudice’.

  • 79

    Davies and Garnett (n 2) 235, para 8-013.

  • 80

    ibid 245.

  • 81

    John P Harrison v John D Harrison, Michael Harrison t/a Streetwise Publications and Mark Hempshell [2010], ECDR, 3 (PCC) [60].

  • 82

    ibid [60].

  • 83

    Judgement delivered by Judge Pradeep Nandrajog, 117 (2005) DLT 717, 2005 (30) PTC 253 Del. See Mr Justice Fysh’s discussion in ibid [61].

  • 84

    ibid [31].

  • 85

    Dworkin (n 1).

  • 86

    Newman Simon , '‘Intellectual Property Law: Part II—The Moral Right of the Author: The View from France, Germany and the United Kingdom’ ' (1997 ) 13 Computer Law & Security Review : 96.

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  • 87

    Jacques de Werra, ‘Le droit a l’integrite de l’oeuvre. Etude du droit d’aauteur suisse dans une perspective de droit compare’, in H. Hausheer (ed), Etudes de droit suisse (Staempfli Editions 1997), translated by

    Teilmann-Lock S & Teilmann-Lock Stina , British and French Copyright: A Historical Study of Aesthetic Implications , (DJOF Publishing , 2009 ) 207.

  • 88

    According to Copinger & Skone James, ‘[destruction] almost certainly amounts to a treatment’:

    Caddick Nicholas, Davies Gillian & Harbottle Gwilym , Copinger & Skone James on Copyright , (Sweet & Maxwell , 2017 ) 11 -52.

  • 89

    Adeney (n 27) para 14.85.

  • 90

    ibid paras 14.83–14.84.

  • 91

    See Davies and Garnett (n 2) para 8-027, at which the authors engaged in an analysis of the term ‘derogatory treatment’ in their discussion of the situation where a work is subject to a first treatment and its result subject to a subsequent treatment. Their analysis suggests that the term is used in both senses within the Act at different points, that is, either as the action of treating a work, or as the result of the action.

  • 92

    ibid.

  • 93

    S 80(4)(b) provides that ‘In the case of an artistic work the right is infringed by a person who shows in public a film including a visual image of a derogatory treatment of the work or issues to the public copies of such a film.’

  • 94

    Marjut Salokannel and Alain Strowel with Estelle Derclaye, ‘Study Contract Concerning Moral Rights in the Context of the Exploitation of Works through Digital Technology: Final Report’ Study Contract no ETD/99/B5-3000/Eo <http://ec.europa.eu/internal_market/copyright/docs/studies/etd1999b53000e28_en.pdf> 143.

  • 95

    Davies and Garnett (n 2) 259–60.

  • 96

    Adeney (n 27) 412.