Friday, September 7, 2012
Shlomit Yanisky-Ravid, ONO Academic College, Yale Law School, Yale University Information Scoiety Project, has published Rethinking Employees' Intellectual Property Moral Rights: A New Model, in Intellectual Property: Interdisciplinary Perspective (Miriam Bitton and Lior Zemer, eds; 2012). Here is the abstract.
The article analyzes the subject of moral rights of employees. The article analyzes the approach currently used in the Anglo-American approach, which differs from the approach followed in France and Germany. As opposed to the law in France and Germany, which provides strong legal protection for moral rights in general, including those of employees, in the United States the law negates employees moral rights while in England moral rights of employees are limited. On the basis of this approach, Israel, for example, often does not recognize the moral rights of employees in practice even though the language of past and present copyright laws that allow granting moral rights to employees. These conclusions are consistent with judicial rulings in Israel on the subject. The article criticizes the practical negation of employees’ (creators and inventors) moral rights. The research proposals, for the first time, a new interpretation of the corpus of moral rights, which is different from the accepted interpretation in the various legal systems. According to our proposal, considering the complexity and uniqueness of labor relations – out of all the personal-moral rights comprising this corpus – the employee is entitled to a particularly strong attribution, which cannot be waived, and other “weaker” personal-moral rights. The right of attribution will obligate both the employer and third parties. The classical approach that justifies the attribution rights of creators are based on theories of the relationship between the creator and his personhood. This research presents a less common position that acknowledges economic justifications for granting the right of attribution (as a moral right) to employees from the perspective of the employee, the employer and the public. These include compensation for the monetary value of the attributed right, the motivational value of the right, attribution as a way of assigning responsibility (the disciplinary impact of the right), attribution as a way to create branding for products, attribution as a measure of quality, attribution as a way to humanize the employer’s IP products, attribution as the source of information about employees in relevant fields, attribution as a way to prevent deception and the educational value of the attribution of rights. Implementation of the model requires dismantling the dichotomous practice with regard to the corpus of moral rights. When considering labor relations, it appears that the right to attribution is a stronger right than the right of completeness. Maintaining the corpus as single cluster might negate its actual implementation for employees, as happens in the Anglo-American countries. The right of attribution ordinarily relates to creations. However, we propose expanding it to patent law and requiring it that patents be registered in the name of the inventor. This registration is practiced in the United States but not in Israel.
The full text is not available from SSRN. Download the abstract at the link.