Argentine Judge Says Community Rights To Access Works Can Outweigh Creator’s Moral Rights

Even though they don’t figure much in the US legal landscape, moral (non-economic) rights such as the right of attribution are an important aspect of copyright law in many other countries. Intellectual Property Watch has a fascinating account of a case from Argentina, where a judge decided that an individual’s moral rights could be overridden by the rights of the community.

The tale is rather complicated, so you’ll need to read the original article to follow all the twists and turns, but it concerns the works of Roberto Fontanarrosa, a cartoonist and writer who died in 2007. His widow signed a contract with a publishing house to bring out a posthumous collection of his unpublished short stories, but Fontanarrosa’s son by a previous marriage objected on the grounds that his father’s moral rights were being harmed:

he argued he was not sure his father was actually the author of the work subject to the publishing agreement and his motivation was to avoid damaging his father’s reputation by allowing the print of a work of an unknown author under his name.

The judge was therefore asked to decide whether the publication should go ahead or not.

In the end, the judge in charge of the Court of First Instance, Fabián Bellizia, decided the contract signed between the publisher and the widower was valid, thus authorising the publication of the work. Moreover, he deemed the moral rights argued by the son of the author were abusive. The judge stated that the tension between author’s copyright and community interest and explicitly favoured the latter over the former.

As the Intellectual Property Watch post notes, this is perhaps the first time that an Argentine court has limited the exercise of moral rights of an author by taking into account the interest of the community in gaining access to unpublished works. Moreover, the judge arrived at that remarkable decision that in some circumstances moral rights could be “abusive”, not by reference to Argentina’s Copyright Act, as might be expected, but to international treaties:

the American Convention on Human Rights, also known as the Pact of San José de Costa Rica, Art. 21, subsection 1 (the law can subordinate individual rights to social interests, i.e., the so-called doctrine of the social function of property), and the International Covenant on Economic, Social and Cultural Rights (adopted by the United Nations General Assembly on 16 December 1966), Art. 15, subsection 1 (right of every person to take part in the cultural life).

That judgement is not yet definitive, since the Argentinian Appellate Court now needs to consider the case. But it would set a remarkable precedent for considering the impact of copyright in a wider social contract, and weighing the rights of the creator against those of the community:

It seems this decision is a reaction against the perceived misbalance between incentive and access trade-off in contemporary copyright law. In any case, the ruling opens the door to many challenging interpretations. If the rights of the heir, as successor of the author, can be deemed abusive in a court of law, could the moral rights of a living author be considered abusive as well?

Now there’s a thought.

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