Moral Rights: the beginning of the end

by Vicki Shuttleworth

A few months back L. Londell McMillan, legal adviser to The Artist, became a cyber celebrity when he issued a Cease and Desist email to a handful of Internet sites allegedly proliferating his client's copyrighted material. As it turned out, Londell's email wasn't exactly a heat-seeking missile. Some of his targets were not in violation of his client's copyright while others that were, never received the email and are still out there wondering 'how come'? As many suspected from the start, the Cease and Desist, along with Mr McMillan's corporatese voodoo talk of a 'Three-Tiered Strategy', really came down to a Single-Minded Tactic -- bluff the 'Kids on the Net' into behaving themselves.

We'll undoubtedly hear a lot more about three-tiered strategies and "LA Law" theatrics from lawyers as traditional copyright holders try to police the Internet and protect their investments. Even for those without a direct financial interest -- governments and lobby groups -- copyright is going to be a useful mechanism for monitoring and manipulating what appears to be a totally anarchistic medium. However, people who believe that the Internet superhighway will one day have a traffic cop at every intersection, may have a long wait.

The sleeper in all copyright issues at the moment is 'Moral Rights' legislation which already exists in a limited form in some countries and is due to go through the Australian Senate later this year. 'Moral Rights' potentially signals the beginning of the end for all conventional forms of copyright.

The key to 'Moral Rights' legislation is the way it separates economic rights from the creator's moral 'connection' with his or her work. What this means is that David Bowie, for example, can sell his masters for $20 million and still exert moral rights over his works, preventing their new 'owners' from using them in ways that damage his reputation. In theory, we could one day see The Artist in a foreign court arguing a case of moral rights infringement against Warner Brothers for re-releasing his back catalogue. As with all new legislation there will inevitably be amendments and despite intense lobbying from the publishing industry and libraries, the chances are there will be some refinement of what constitutes 'reputation' and a further widening of who or what a 'creator' or 'author' is.

Conventional copyright has boundaries. It is essentially based on a 19th century concept of physical property where what you bought, conquered or produced you owned -- even human beings. However, like the Internet, 'Moral Rights' legislation has no boundaries. Moral rights are something that we all have -- it's just a matter of where you draw the line. Multiple rights and multiple creators of a single work are already recognised in film making where 'Moral Rights' will be extended to include the director, script writer and producer. Each of these members of the original crew and their heirs will have a say in how a film is treated by future generations. The potential for this to be extended to photography and music is unknown but arrangers already have considerable rights over a musical composition and how their arrangement of it is used. Just imagine, at the same time The Artist is arguing his case in court against Warners, members of Prince's old band, The Revolution -- Lisa and Wendy -- could be in another courtroom arguing a case for their 'Moral Rights' against The Artist.

'Moral Rights' legislation won't go away because in a sense it is already here and simply an extension of some very powerful ideas that are deeply entrenched in 20th century thinking. 'Moral Rights', along with all the major 'ologies' (sociology, psychology, anthropology, etc.), have grown out of a wide acceptance and internalisation of the concept of Evolution, which basically demonstrated that there are a number of ingredients or factors within an environment that contribute to a creation. The break down in the old hierarchies of ownership brought about by this idea of multiple causes and therefore multiple ownership is not only found in 'Moral Rights' legislation but in the acknowledgement of indigenous land rights and the current debate over who 'owns' a child where surrogacy, invitro-fertilisation and semen donation are involved.