An engaging anti-idyll: copyright and moral rights in the UK

Abstract

Moral Rights is an important work. The authors, barristers Gillian Davies and Kevin Garnett QC, by writing this work, wished to provide UK practitioners with a comprehensive, practical, and comparative account of moral rights under UK law, international treaties, and in a significant number of jurisdictions across the world. Moral rights have always seemed fairly alien to UK copyright law, not simply because they made their first appearance only in the Copyright Designs and Patents Act 1988, but also because their protection complies with a rights-based view of copyright, which differs from the rationale for copyright in the UK. As is well known, from the beginning of modern British copyright history and the Statute of Anne, copyright has been consistently intended as a measure aimed at incentivizing the creation and dissemination of cultural goods. The scope of protection has always accordingly been limited to what was considered, from time to time, necessary to the achievement of that goal. It is in this light that the relatively late introduction into UK legislation of specific provisions concerning moral rights—60 years after their first recognition in the Rome Act of the Berne Convention—must be viewed. During that period, well-respected commentators such as Skone James,1 believing that the protection afforded by the common law to moral rights was sufficient, held that no changes should be made to the law. In contrast, official reports were not afraid to concede that the concept of moral rights was unknown to UK jurisprudence.2 Finally, when in 1988 moral rights made their appearance, eminent scholars pointed out that British moral rights, although they occur in the Copyright Part of the new Act, are not part of copyright. There is no scheme of thought here that an author enjoys both economic and moral rights, all of them equal in status. Instead, we find distinct rights, which give rise to an action for breach of statutory duty, not for copyright infringement.3