Moral Rights of Author in Estonian Copyright Law

• Author: Heiki Pisuke
• Pages: 166-166

Heiki Pisuke

Moral Rights of Author in Estonian Copyright Law

Section 39 of the Republic of Estonia Constitution provides, "An author has the inalienable right to his or her work. The state shall protect the rights of the author." The objective of this article is to analyse the moral rights of the author and their protection in Estonian law and the international factors affecting protection.¹

1. Moral rights of author quasi human rights?

Article 27 (2) of the Universal Declaration of Human Rights (1948) provides, "Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author". The need for protecting the moral interests of the author has also been provided in article 15 of the International Covenant on Economic, Social and Cultural Rights (1966).² The moral rights, as well as property rights, guaranteed under the Covenant are further strengthened by the right to non-discrimination. According to article 2 of the Covenant the states parties to the Covenant shall apply these rights to all individuals (citizens and aliens) within their territory and subject to their jurisdiction and ensure that these rights are exercised without discrimination of any kind.³

The European Convention of Human Rights and Fundamental Freedoms (1950), as well as the African Charter on Human and People's Rights (1981) make no reference to the moral and economic interests of the author. The Charter of Fundamental Rights of the European Union⁴ in article 17 paragraph 2 reads without specification, "Intellectual property shall be protected".

In legal science, discussion is going on about the status of the right of property in international law. It is a rather widely held belief that most property rights cannot be included in the category of fundamental human rights.⁵ As intellectual property is, by nature, related to property rights and according to the generally accepted opinion in the Anglo-American legal doctrine also derived therefrom, intellectual property rights are consequently not regarded as human rights. It has been attempted to categorise intellectual property rights as "universally recognised rights", "universal rights", "natural rights", etc. At the same time, jurists admit especially in the countries based on the Continental European tradition that some intellectual property rights may rise to the level of human rights. In such a case, these selected rights belong to human rights as personality rights.⁶

When assuming the latter position, the moral rights of the author are most likely to be included in human rights. Moral rights as the rights that are the most directly related to creative activity are also natural rights. As long as disputes about the relation between intellectual property rights and human rights are yet in progress, moral rights may be called quasi human rights.

2. Berne Convention standards

Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works⁷ establishes international standards, according to which the states party to the convention shall guarantee their authors so-called moral rights. These rights have been formulated in article 6bis (1) of the Convention as follows:

1) the author shall have the right to claim authorship of the work (or the right of paternity); and

2) the author shall have the right to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour and reputation (or the right of integrity and respect).

According to article 6bis (1) of the Convention, these rights are independent rights of the author, which do not depend on the economic rights of the author and belong to the author even if economic rights have been transferred.⁸ The term of protection of moral rights in party states has to be at least as long as the term of protection of economic rights, i.e. the life of the author and 50 years after his or her death (article 7 (1)). However, the wording of the Convention directly implies that national law may provide for a longer term for the protection of moral rights or protect these rights without a term. The means of redress for safeguarding the moral rights are governed by the legislation of the country where protection is claimed (article 6bis (3)). Thus, the party states are free to choose what means of protection, in civil law, criminal law or other, they use.⁹

Article 6bis of the Berne Convention was established as an international standard at the diplomatic conference held in Rome in 1928 and its wording was revised at the Brussels conference in 1948. The inclusion of moral rights in the Berne Convention was reasoned by stating that "work is a reflection of the personality of its creator".¹⁰

The concept of the moral interests and moral rights of the author and its first legal regulation originates from France at the end of the 18^th century and at the beginning of the 19^th century.¹¹ The doctrine of moral rights came to be universally recognised in the countries of Continental Europe already at the beginning of the 20^th century. In common law countries, thanks to their strong historical orientation to copyright primarily as an economic right, the doctrine of moral rights has not integrated to date.

3. WTO TRIPS

Since 13 November 1999, Estonia has been a member of the World Trade Organisation (WTO). The most extensive global international agreement concerning intellectual property so far - the Agreement on the Trade-Related Aspects of Intellectual Property Rights - which is Annex 1C to the Agreement Establishing the World Trade Organisation (Marrakesh Agreement) has been concluded in the framework of the WTO.¹² According to article 9 (1) of the Agreement, members shall comply with articles 1 through 21 of the Berne Convention (Paris Act, 1971) and the Appendix to the Berne Convention. But the agreement makes an exception concerning article 6bis of the moral rights provisions of the Berne Convention, "However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom". The exception provided for in article 9 (1) is a step backwards with regard to the global recognition and protection of moral rights and by this, the Anglo-American traditional approach significantly outweighs the copyright doctrine of Continental Europe. At the same time, the provision indicates that the agreement regards only economic rights as intellectual property rights.

4. Personal rights in earlier Estonian law

During the whole period of the independent Republic of Estonia (1918-1940), the 1911 Copyright Act (of the Russian Empire) was in force. In the thirties, a national draft Copyright Act was prepared based on the German law model. However, it was never adopted.¹³ In 1927, Estonia became party to the Berne Convention for the Protection of Literary and Artistic Works (Berlin Act of 1908).¹⁴ The 1911 Act did not contain a separate provision concerning moral rights. Amendments were not made to legislation after Estonia's accession to the Berne Convention either.

After Estonia was occupied by the Soviet Union, Soviet copyright law continued to apply in Estonia for almost 50 years. During the last decades of the Soviet State, the copyright provisions were included in Part IV of the Civil Code of the Estonian SSR (CC) of 1964. Part IV of the CC was worked out in full conformity with the 1961 Fundamentals of Civil Legislation of the USSR and the Soviet Republics. The Soviet copyright legislation and doctrine were in force until the adoption of the Estonian Copyright Act in 1992. The 1992 Act was founded on bases that completely differed from the Soviet copyright doctrine. Yet the impact of the theory and evolved practice of the Soviet era on some provisions of the 1992 Act may be detected.

The Civil Code did not contain a separate regulation of the moral and economic rights of the author. All the rights of the author were set out in § 483 of the CC, supplemented by §§ 484¹⁵ and 485¹⁶ as specific provisions. The Soviet civil law doctrine distinguished between three groups of rights: economic rights, personal rights related to economic rights, and personal rights not related to economic rights. The doctrine regarded the moral rights of the author as rights not related to economic rights.¹⁷

Section 483 of the CC served as the basis for the catalogue of the so-called personal non-economic rights¹⁸ in the Soviet copyright law:

1) the right of author's name (inalienability of author's name), i.e. the right to decide whether to publish, reproduce and distribute a work under the person's own name, pseudonym or anonymously;

2) the right of integrity of the work.

The content of integrity of the work was specified in § 484 of the CC as:

1) the prohibition against making any alterations in the work, in the name of the work or in designating the name of the author without the consent of the author;

2) the prohibition against including illustrations, a foreword, an epilogue, comments and any explanations.

After the death of the...