Intellectual Property and Moral Rights: A Book Review

The book “Intellectual Property and Moral Rights” was quite recently published. It is an important link in the chain of works in Edward Elgar´s series Research Handbooks in Intellectual Property. The book has been edited by Law professor Ysolde Gendreau from Montreal, Canada with the help of her two assistants Eva Gallo and Sabrina Roy. She has also written an introduction and a concluding chapter.

It can be stated already here that the book is a valuable information source for all who want to understand the meaning of “moral rights” and how they are perceived in various parts of the world and within several disciplines. The book, i.e. the various scholarly contributions, are clearly well argued and researched. In brief, it is a stimulating read and the kind of book you have reason to return to every now and then to refresh your memory and challenge your thoughts. In addition, effort has been paid to cater to all details, which is most welcomed.

The book consists of six parts, the first of philosophical contemplations, the second concerns itself with moral rights and intellectual property rights, the third is headlined traditional moral rights, the fourth challenges moral rights, the fifth discusses moral rights outside Europe and the sixth authors and moral rights.

All in all, Gendreau has been able to engage 32 writers including herself from all over the world, which is an achievement in itself. We are talking about Canada, the United States, Latin America, Europe, Asia, including India, China and Japan, Australia, and New Zealand. The more than 500-page book includes also a table on Commonwealth laws on moral rights and when the Berne Convention was adopted by these countries, as well as an excellent detailed index.

For a person particularly involved in intellectual property rights, the second part is an interesting read. Although moral rights have been expressly considered as a part of the copyright scene, when talking about attribution and integrity, here the authors connect, or maybe stretch it a bit, to industrial rights, namely patents, industrial designs, and trademarks.

Professor Nari Lee from Helsinki, Finland, is arguing in her interesting chapter “Inventor´s moral right and morality of patents”, among other things, that where the economic right to exclude provides a utilitarian incentive for an inventor, acknowledging a moral right to claim paternity would certainly appeal to academic inventors. With today´s competitive “publish or perish” atmosphere within the academia, there is certainly some truth to this. The procedural requirement for an applicant according to the EPC Article 81 to designate an inventor is also a valid argument for the existence of a right of attribution or a paternity right, she continues.

Although patents and industrial designs are quite similar from an economic incentive point of view, the latter have also much in common with copyright, at least regarding artistic aspects wherefor moral rights can very well be discussed in this connection. Therefore, it is well motivated that associate professor Giorgio Spedicato from Bologna, Italy, points this out. He is, among other things, on the other hand stating that the rights having different features might be a hindrance for harmonising moral rights. His thought that since there can be several persons involved in a design this paves the way for naming AI as a designer is interesting.

Senior Lecturer Genevieve Wilkinson from Sydney, Australia, uses human rights to give a view on moral aspects with respect to trademarks in her chapter “Exploring moral interests in the intellectual creations underlying trademarks”. She is also bringing up the by now well-known legislation concerning tobacco plain packaging initiated by Australia in 2011 and the WTO decision in this regard with respect to which other reasons, such as health, were considered to restrict trademark rights.[i]

In part four, where moral rights are challenged, one can among ten chapters find one focusing on the economic dimension of moral rights and another discussing artificial intelligence. The first one written by Professor Richard Watt from Christchurch, New Zealand, finds moral rights connected to economic rights by the signals of value the former send to the latter. He argues that without moral rights, i.e. attribution, there is no CV of the possible author to draw upon when assigning a value to the economic right. The two rights are thus connected. Without attribution there is no value, he argues.

The second one “Artificial intelligence and moral rights” written by Professor Sergio Branco and Beatriz Nunes, specialist in IP, both from Rio de Janeiro, Brazil, investigate how the degree of autonomy of AI affects the possibility to assign a right to it. If the degree is low the AI creation should fall within the public domain, they conclude.

The final part sheds light on how authors have perceived their moral rights. The first one written by Professor John Peffer from New Jersey, USA, concerns photographers, who have pictured the struggle against apartheid in South Africa, and years later find their photos being commercially utilized without their permission. Assistant professor Darren Hudson Hick from South Carolina, USA, has written the second one about how moral rights within the American film industry are replaced by contract giving priority to producers over directors. The third one “Thou shalt not read: ius abutendi as a moral right of the author?” written by Senior assistant professor Rudolf Leska from the Czech Republic, discusses the right for authors to withdraw their work from the public. All three chapters are most interesting, particularly since they view moral rights from the inside, i.e., from the author´s point of view.

All in all, the book at hand is an excellent achievement both with respect to its appearance and content. I do warmly recommend it to all who are interested in deepening their thinking of intellectual property and moral rights.

[i] There has been written a lot about trademarks and plain packaging. In Finland the issue has been recognized at least in two articles, i.e. Oker-Blom, Max – Aalto-Setälä, Minna, Pelkistetyt pakkaukset, tavaramerkkioikeudet ja ´nudging´tyyppinen lainsäädäntö, Lakimies 2/2018 s. 240-252, and by the same authors “Yhdenmukaistetut tupakkapakkaukset ja Suomi”, Lakimies 5/2022 s. 813-823. The first one is describing the history of plain packaging and current legislation at the time, including EU and Australia, and the second one is focusing on Finland, but also on the WTO case and the arguments used in it.

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