Moral rights more important as digital works are seen as ‘raw material, data’: Author

Last year, a 17-year-old Berlin author, Helene Hegemann, published a teen bestseller that set off something of a controversy about moral rights in the digital environment. Hegemann’s book, Axolotl Roadkill, was comprised largely of passages from other books and works. Writing about Berlin’s underground D.J. and club culture, in which D.J.s and artists freely sample one another’s works, Hegemann shrugged off allegations of plagiarism, or for that matter, violations of moral rights. Mira T. Sundara Rajan’s new book, Moral Rights: Principles, Practice and New Technology (Oxford University Press), is the first major book to explore moral rights in the digital environment. Moral rights, non-transferable rights belonging to the work’s creator, generally refer to a “right of attribution” (so that their name remains attributed to the work) and a “right of integrity” (the right to protect a work from harm). And Hegemann’s experience appears to reflect a burgeoning cultural relationship with digital works that casts a cloud over moral rights. Sundara Rajan notes that the digital environment “provides unlimited access” to material online and that copyright, “with its insistence on authorization and control, its emphasis on the rights and privileges of ownership, seems hopelessly old-fashioned.” But the book is a defence of moral rights, arguing that basic creator’s rights, like the right of attribution, are important to protecting culture and history. She goes a step further, looking at the role of moral rights in ensuring quality of knowledge. Today’s society, facing abuses of knowledge in issues ranging from climate change to religious extremism, depends on a “new and acute” need for high-quality knowledge, she writes. “he abuse of knowledge may represent the single most dangerous problem of our time. It allows unprincipled leaders to exploit entire populations; it is the secret power behind fanaticism. Improving the conditions of human life depends, as never before, on education, in the broadest sense of the term, and education depends on access to knowledge,” the book says. Sundara Rajan, the Canada research chair in intellectual property law and director of the intellectual property law program at the University of British Columbia, spoke to The Wire Report by phone last week about her new book, moral rights, and the Conservative government’s copyright reform bill, C-32. She said she intends to contact the House of Commons legislative committee on Bill C-32 about appearing as a witness for the committee’s hearings. The following transcript of the interview has been edited for length and style. In Canada we follow the Berne Convention. So, that means the author must show that the modification of their work has damaged their reputation if they want to pursue moral rights protections? That’s right. We have moral rights for authors in our Copyright Act, and we have since 1931. That’s significant because Canada was the first Common law country to implement moral rights. They came into the Berne Convention in 1928, so that gives you an idea of how up-to-date we were in this area. But now that we’ve signed onto the WIPO Internet treaties we have an implementation obligation with respect to performers’ moral rights. Of course, that hasn’t been done yet, but it’s planned in Bill C-32. It’s a very practical area of the law. You need to look not only at what’s happening with legislation. You also have to look at industry practice when you decide what kind of scheme to have in our law and how effective it is. We have moral rights for authors but we also have the possibility of comprehensive waivers of moral rights in artists’ contracts, so an industry practice has developed whereby it’s normal for authors to be expected to waive all of their moral rights when they publish. Is that mostly in music publishing, or also in film and television? As far as I know it’s in almost every area of publishing in Canada, including, of course, literary publishing. In the book you write that the digitization of works distances them from the works’ creators and that it can be difficult for end-users to see digital works as human creations. If we don’t see them as human creations, what do we see them as? I think we see them as raw material, data that we can manipulate in any way that we want to. It may be fairly low-key, like a song that I want available on my iPod so that I can have my own collections of tunes to listen to when I’m jogging. Or it can be high-level stuff like Helene Hegemann. She was a young German author, 17 at the time, and wrote a book that turned out to be just a compilation of cuts from others that she put together. It became a big scandal because, instead of trying to conceal that or apologize for it, she just came out and said, “This is a perfectly legitimate activity, and this makes me an author.” That’s a fairly high-level example of someone who doesn’t view that text as being restricted or associated with a particular author. It’s raw material that she can use for her work. When you’ve got text that’s digitized and you can move it around and you’re doing it in the privacy of your home, it doesn’t really seem like there’s anything wrong with that or any reason why there should be anything between you and that process. Maybe it would be more accurate in retrospect to say that it’s not that we dissociate it from the creator, but we see ourselves more in the role of the creator. So are some people questioning whether authorship, ownership, and attribution should exist ? Yes, look at the Hegemann case. I think there is a possibility that the digital environment will challenge those concepts. In fact I think that’s happening already by the commodification of cultural products. The book is basically an argument against that, because I see the ultimate result is not having culture anymore. Context is a very important part of culture, and so is history. The whole idea of Classic culture is based on historical tradition. When you start erasing attribution or removing works from their context, or passages of text from their context, you’re basically destroying the entire foundation on which culture is built. I see that as very serious. You write that the digital medium “represents the one thing of universal value in a post-industrial universe.” What do you mean by that? I think I was talking about how digital media has supplanted traditional media. Take something so simple as research. Now, as a legal scholar, I’m not going to go to the library and look for hardcopies. Basically what we find online now is what constitutes research. An important thing about the book is that it’s not against open access or access to knowledge. It’s quite the contrary. It looks more at the terms on which access to knowledge happens and making sure that the quality of the knowledge is as good as it’s ever been. Do you think computer programs should receive moral rights protections as literary works? I think computer programs should receive a degree of moral rights protection. I’m not sure that it should be as literary works ... We jumped into the protection of computer programs as literary works very quickly. It was settled back in the TRIPS agreement . Since then, lots of arguments have been made that different types of protections would be more appropriate for computer programs, from patents to sui generis frameworks. I don’t think literary works protection is the best solution from a legal and conceptual point of view, but now it’s mandated by international agreements, so we’re stuck with it for the time being. You talk about how computer programs and the works that they produce can overlap in terms of moral rights. A computer program can generate a digital artwork, and both are protected. What’s the significance of this overlap? It’s one more illustration of this problem of layering or overlapping of rights that’s very common in the digital environment. I was drawing attention to that as a problem to resolve more than anything else. What I suggested as a solution is looking at the directness of the link between the creator of the work and product to determine whether a moral right should apply. What do you think of Bill C-32? I can easily say that the bill is very deficient in terms of its approach to moral rights. It tries to carry out the WIPO implementation of the performers’ moral rights, but basically what it does to accomplish that is restate the moral rights for authors, as they exist under the Canadian Copyright Act, and substitute the word “performers” for “authors.” Our scheme for authors’ moral rights is self-contradictory in a lot of ways, including the fact that we allow comprehensive waivers of authors’ moral rights. It’s not really common in this country that moral rights are widely enjoyed in terms of publishing in practice. That’s something that the government had an opportunity to look at, but it’s not a big priority for them. They decided not to. Are you following the C-32 legislative committee hearings? There’s a lot of talk now among the opposition parties that this bill is bad for creators because it has too many exceptions and takes money away from rights holders. They point to the education exemption for fair dealing, the mechanical rights exception for broadcasters, and the fact that there’s no expansion of the private copying levy to digital media. What does that say to you? That hadn’t been my sense. I had some admiration for the government’s attempts to find exceptions to copyright protection. Going back deep into the history of copyright, the tradition is that, if something is a private use or an educational use, those things are considered exempt from copyright royalties. I saw that as keeping with tradition, the concept of copyright, and it seemed appropriate to me. I don’t really think it’s in the interests of creators to try to impose restrictions on areas that traditionally were outside , like public interest issues like education. All that would do, really, is restrict the dissemination of their works. I don’t think it would bring in the bulk of the earnings for a writer, for example. But the whole discussion is sort of moot because you’ve got this digital lock provision, which is just across the board, as I understand it. Anyone who puts a digital lock in place has the right to have that protected. When you have that I’m not really sure what the significance of those exceptions are. sdoyle@thewirereport.ca

Moral rights more important as digital works are seen as ‘raw material, data’: Author

News | 03/16/2011 7:49 pm EDT

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