Moral Rights

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One area of intellectual property law that is not concerned with economic interests is that of Moral Rights.Footnote 40 Moral Rights is a legal concept that exists in copyright laws of Canada, other Commonwealth countries, and much of Europe. Rina Pantalony, Legal Counsel to CHIN, characterized copyright law in Canada as being concerned primarily with economic protection while addressing the natural or inherent rights of the creator through Moral Rights. She added that copyright law in the U.S. is concerned with economic protection, but also with a social imperative to foster innovation. Pantalony described three areas of Moral Rights: the right of credit or association, the right of integrity, and the right of anonymity or context. The first guarantees that the original creator is always credited for the work in any future presentation of the work. The second guarantees that the work shall remain in basically the same state unless the creator changes it. This guarantees that others may not change the work without permission, but it also guarantees that the artist may change the work at any point. Anne-Marie Zeppetteli said that this has indeed resulted in rare cases where the artist comes in to change a painting years after a museum has purchased it. The last right of anonymity and context guarantees that the creator can decide how the work is used or presented even if they no longer own the work. Zeppetteli again noted that in Canada, artists have taken their works out of exhibitions even when the museum or gallery owned the work. In these cases the artist did not want to be associated with the exhibition (anonymity) or objected to their work being viewed in that environment (context). Unlike other intellectual property rights, Moral Rights cannot be divested from the creator; they cannot be sold or given away. Even if the creator sells the original work along with all other copyrights, they retain their Moral Rights in the work. Zeppetteli noted, however, that she has seen contractual agreements between Canadian institutions and artists where the artist agrees not to enforce their moral rights, and in this way Moral Rights are waived.

The U.S. does not have the general legal concept of Moral Rights, but it does include some loose equivalents specifically for artists in the Visual Artists Rights Act of 1990.Footnote 41 This act is separate from copyright law and gives artists the right of association or non-association with their work (they must be credited, unless they request not to be). The act also guarantees the work shall not be mutilated or changed without the artist's consent. It does not however, guarantee artists the right to make changes themselves if they no longer own the work. The Visual Artists Rights Act is severely limited however in that it seems to apply only to original works of art that use traditional media (moral rights, by contrast, apply to reproductions of the work as well). The act applies only to artworks and not all creations and it defines artworks as being paintings, prints, and sculpture and specifically denies "motion picture or other audiovisual work .... data base, electronic information service, electronic publication...". This exclusion was an attempt to rule out commercial works from an act meant to cover fine art only, but because the language focuses on media rather than its use as art, it also excludes digital media (and many other) forms of fine art from these protections.

Although Moral Rights are not the same as ethical considerations, this does seem a natural place to consider ethics in relation to copyright and digital art. Copyright law defines a minimum of rights, but the cultural community has long considered the social and ethical dimensions of agreements around art works. Some of the reasons for this are practical; museums and galleries want to, in fact need to, maintain good relations with individual artists and the artist community. In practice, dealings between arts organizations and artists often result in the artist receiving more rights, considerations, and privileges that the law requires. On the other hand, it would be worthwhile for the arts community to newly explore questions of trust and ethics in dealing with contemporary and digital artists. Why, for instance, are so many media artists reluctant to give master copies and source code to museums? Are the reasons purely economical, or are museums considered by many artists to be as much a part of the problem as the solution? Though much research remains to be done in the area of copyright and the arts, much more still remains to be done about the invisible forces of ethics and trust in the arts community.

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