Monday, July 25, 2016
Jane C. Ginsburg, Columbia Law School, is publishing The Most Moral of Rights: The Right to be Recognized as the Author of One's Work in the George Mason Journal of International Commercial Law (forthcoming). Here is the abstract.
The U.S. Constitution authorizes Congress to secure for limited times the exclusive right of authors to their writings. Curiously, those rights, as enacted in our copyright laws, have not included a general right to be recognized as the author of one's writings. Yet, the interest in being identified with one's work is fundamental, whatever the conception of the philosophical or policy basis for copyright. The basic fairness of giving credit where it is due advances both the author-regarding and the public-regarding aspects of copyright. Most national copyright laws guarantee the right of attribution (or "paternity"); the leading international copyright treaty, the Berne Convention, requires that Member States protect other Members' authors' right to claim authorship. But, apart from an infinitesimal (and badly drafted) recognition of the right in the 1990 Visual Artist’s Right Act, and an uncertain and indirect route through protection of copyright management information, the U.S. has not implemented that obligation. Perpetuating that omission not only allows a source of international embarrassment to continue to fester; it also belittles our own creators. Copyright not only protects the economic interests in a work of authorship, it also secures (or should secure) the dignitary interests that for many authors precede monetary gain. Without established and enforceable attribution rights, U.S. copyright neither meets international norms nor fulfills the aspirations of the constitutional copyright clause. This article will analyze the bases and enforceability of attribution rights within international norms. It will review the sources of attribution rights in the current US copyright law, particularly the Visual Artists Rights Act, and section 1202's coverage of copyright management information. It will explore the extent to which removal of author-identifying information might violate section 1202 and/or disqualify an online service provider from the section 512 safe harbors. Finally, it will consider how our law might be interpreted or amended to provide for authorship attribution. Non-legislative measures include making authorship attribution a consideration under the first factor of the fair use defense.
Download the article from SSRN at the link.