UNIVERSITY OF LUSAKA

SCHOOL OF LAW
L340 – IP LAW
UNIT 6 – MORAL AND ECONOMIC RIGHTS
George Mpundu Kanja
 Structure of Presentation
• Introduction – Moral Rights
• Paternity Right
• Integrity Right
• False Attribution of a Work
• Right to Privacy in Relation to Photographs and Films
• Divulgation Right
• Retraction Right
• Duration of Moral Rights
• Waiver of Moral Rights
 Structure of Presentation
• Introduction – Economic Rights
• Reproduction right
• Translation right
• Adaptation right
• Public performance right
• Broadcasting right
• Communication right 
• Distribution right
• Rental right
• Right of Display
• Right of resale (Droit de suite)
 Introduction
• There are two types of rights granted to the
authors under copyright, namely the moral
rights and economic rights.
• Moral rights are those rights which relate to the
protection of the personality of the author and
the integrity of his work, and similar matters.
• They allow the author to take certain actions to
preserve the personal link between himself and
the work.
 Introduction
• Economic rights, on the other hand, are those
rights concerning control over the
commercial or industrial exploitation of
works, and other means of use of the works
which involve such acts as reproduction or
representation.
• They allow the owner to derive financial
reward from the use of his works by others.
 Introduction
• Some countries such as the USA does not fully recognize
moral rights except those for visual art and as such it is
not a member or party to any international copyright
convention that includes moral rights.
• The USA excludes moral rights mainly because it may
conflict with the exploitation of copyright works, in
particular, for works made for hire or commissioned
work, in that every time the work has to be exploited in
certain way one has to respect the moral rights of the
author or director and if necessary obtain their
permission.
 Introduction
• In Zambia the Copyright and Performance Rights Act,
does recognize moral rights.
• Section 24 (2) provides that notwithstanding the transfer
of the copyright, or any part of it, the author or director
of audiovisual work shall have the right:-
• (a) to be identified as the author or director of the
works; and  
• (b) to object to any distortion, mutilation or other
modification or derogatory action in relation to the work
that would be prejudicial to his honour or reputation.
 Introduction
• Moral rights can only arise and initially be granted to an
individual.
• Thus all authors of original works and directors of films
or audiovisual works are accorded moral rights, while the
owners of the entrepreneurial related rights are not
granted moral rights.
• Related rights often rely on or derived from copyright
works and are secondary rights, such as recording of an
original musical work. They are linked to the
entrepreneurial exploitation of copyright and as such
moral rights are not needed in relation to them.
 Paternity Right

• The paternity right also known as the ‘identification right’

or ‘right of authorship’ is the right of the author or creator
of a work to be identified as its author.
• It is the right of the author to have his name ascribed on
the work or to choose to have his work published
anonymously or pseudonymously.
• An author may authorize a publisher to publish his work
but the contract may be silent on the publisher’s duty to
ascribe the work to the author.
• The integrity right can be invoked to impose this obligation
on the publisher.
 Paternity Right

• The paternity right is of particular importance

in cases where the author has assigned all his
economic rights to the publisher or another
party.
• If there is a further assignment, there will be
no contractual link between the second
assignee and the author, hence the right to
claim authorship can be of particular
important in this situation.
 Paternity Right

• The paternity right is only granted to authors of literary,

dramatic, musical or artistic works or director of a film or
audiovisual work.
• Therefore the paternity right does not apply to other
types of works, such as computer programmmes, sound
recordings, broadcasts and cable programmes or other
works in which copyright does not subsist.
• Furthermore, the right does not apply to works created by
the author in the course of employment or works made
by the author on the commission of some other person.
 Paternity Right

• Under the Copyright and Performance Rights

Act for paternity right to be enjoyed it need
not be asserted by the author of a work as it
automatically accrues to him the moment the
work is created and if it attracts copyright
protection.
 Integrity Right

• Like the right of paternity, the right to object

to any distortion, mutilation or other
modification or derogatory action or
treatment is given to authors in respect of
their literary, musical, artistic or dramatic
works, and to directors in respect of their
films or audiovisual work.
 Integrity Right

• The question of whether the treatment of a work is

derogatory to the reputation of the author or in some way
degrades the work as conceived by its creator is largely a
matter of opinion, and therefore more liable to be subject
of dispute.
• Besides the courts have often been confronted with the
question as to what should be taken into account in
determining whether the treatment of a work is derogatory.
• Should it be the author’s opinion or the opinion of the
other persons? Should it be an objective or subjective test?
 Integrity Right

• In Tidy v Trustees of national History Museum the plaintiff, a

cartoonist, drew some large dinosaur cartoons in black and
white for the defendant museum to exhibit. The museum,
without the plaintiff’s authority, published a book on
dinosaurs, including reproductions of the plaintiff’s cartoons, a
seventh the size of the originals and with a pink and yellow
background. The plaintiff’s authorship was acknowledged but
the plaintiff sued for both breach of his copyright and his
moral right of integrity. The defendant admitted the breach of
copyright, but disputed the moral rights of breach. The Court
refused the plaintiff’s motion for summary judgment on that
claim, remitting the case for a full trail.
 Integrity Right

• Rattee J stated:
• Before accepting the plaintiff’s view that the
reproduction in the book complained of is prejudicial to
his honour or reputation, I have to be satisfied that that
view is one which is reasonably held, which inevitably
involves the application of an objective test of
reasonableness. It seems to me that there is a possible
defence … that, in fact, the reputation of the plaintiff
would not be harmed one which in the mind of any
reasonable person looking at the reproduction of which
he complains.
 Integrity Right

• In the case of Prise de Parole Inc. v Guerin, Editeur

Ltee, the plaintiff author complained that the
defendant publisher had included in a school
anthology, without his authority, an abridged
version of the plaintiff’s well known novel. The
abridgment was incompetently done: subplots were
omitted and the order of the story was changed.
Apart from claiming an injunction and damages for
copyright infringement, the plaintiff also claimed for
breach of his moral rights.
 Integrity Right

• Denault J. in the Court of first instance stated as

follows:
• … although the author has shown that his novel
was substantially modified without his knowledge
and that he was shocked and distressed by this,
the evidence has not shown that, objectively … his
work was modified to the prejudicial of his honour
or reputation. Since this has not been proven, the
plaintiff is not entitled to moral damages.
 Integrity Right

• Like paternity right, integrity right does not

apply to works, such as computer
programmmes, sound recordings, broadcasts
and cable programmes or other works in
which copyright does not subsist.
• Furthermore, the right does not apply to
works created by the author in the course of
employment or works made by the author on
the commission of some other person.
 False Attribution of a Work

• The right to object to false attribution of a

work is the converse of the right to be
identified or paternity right.
• A person to whom a literary, dramatic,
musical or artistic work is attributed as the
author, or to whom a film or audiovisual
work is attributed director has the right to
object when that attribution is false.
 False Attribution of a Work

• The objection may be in relation to the issue

of copies to the public, public exhibition of an
artistic work, public performance or showing,
broadcast or cable-cast of a literary, dramatic
or musical work or a film.
• The right to object to false attribution of the
work is not included in the Copyright and
Performance Rights Act.
 Right to Privacy in Relation to Photographs and Films

• Most people are concerned that photographs or films of a

private functions such as weddings may find their way or
be displayed publicly without the consent or against the
wishes of the people involved in the photographs or films.
• Thus in some jurisdictions such the United Kingdom they
have come up with provisions to protect the persons who
are involved in the photographs or films and to stop
photographers from profiting from photographs taken at
the private function, more especially if persons involved
are celebrities, or photographs of celebrities babies.
 Right to Privacy in Relation to Photographs and Films

• Thus where a photographer is commissioned

to take photographs of a wedding or private
function, those photographs cannot be
issued to or shown to the public without the
consent of the commissioner, for example,
the bride or parents of the baby.
 Right to Privacy in Relation to Photographs and Films

• In the case of Mail Newspapers Plc v Express

Newspapers Plc an injunction was granted to prevent
the publication of wedding photographs of a married
couple. The wife had suffered a brain haemorrhage
when 24 weeks pregnant and was kept on a life support
machine in the hope that the baby could be born alive.
• The husband had granted exclusive in the pictures to the
plaintiff in respect of photographs and the defendant
tried to obtain copies from the photographer.
 Right to Privacy in Relation to Photographs and Films

• the right to privacy in relation to photographs

and films is not just a negative right as it can
also be used to secure exclusivity and gain a
higher price for the use of the photographs or
films.
• A good example is where some celebrities
have sold their wedding pictures or baby’s
pictures for example to newspapers and
donated money to charities.
 Right to Privacy in Relation to Photographs and Films

• Like the right to object to false attribution of a

work, the right to privacy in relation to
photographs and films is not included in the
Copyright and Performance Rights Act.
 Divulgation Right

• Divulgation or dissemination right is the

author’s right to decide when, where and in
what form the work will be disseminated to
any other person, persons or general public.
• Thus an author can restrain the publication or
use of a work when it is contrary to the form
in which he wishes that work to be
disseminated to the public.
 Divulgation Right

• The divulgation right is not mentioned or

included in the Copyright and Performance
Rights Act or the Berne Convention.
 Retraction Right

• The retraction right is the right of the author

to withdraw his work from the publication
because of changed opinion.
• For example, if the author in his literary work
stated that the world was flat and then later it
is found that the world is round, he can
exercise his right of retraction to allow him to
remove or withdraw his book from circulation.
 Retraction Right

• Like the divulgation right, retraction right is

not mentioned in the Copyright and
Performance Rights Act.
 Duration of Moral Rights

• The Copyright and Performance Rights Act provides

that moral rights shall expire on the death of the
author or director of the audiovisual work.
• Thus author’s moral rights cannot be infringed when
he is dead.
• This is unfair to the author’s personal representative
who might see others, for example, distort, mutilate
or modify the work but can do nothing about it as the
moral rights do not exist in the work in question and
hence no legal right to enforce them.
 Waiver of Moral Rights

• It must be stated that under the Copyright

and Performance Rights Act, the author of a
work or a director of a film or audiovisual
work cannot waive his moral rights.
• However, in some countries such as the United
Kingdom the author of a work or director of
film may under a written instrument (signed by
the person giving his moral right) waive his
moral rights
 Economic Rights
• In addition to moral rights, copyright law grants
the author or other right owner economic
rights which allow him to derive financial
reward from the use of his work by others.
• The economic rights enable the author or
other right owner to control the commercial
or industrial exploitation of his work and
participate in the benefits of the use of the
said work.
 Economic Rights
• They are also called ‘controlled acts’ or
‘exclusive rights’ of the copyright owner in
relation to his work, which allows him to
control and authorize or prevent others from
exploiting or dealing with the work without
his consent.
 Economic Rights
• The economic rights granted to the author in
relation to the work can be classified into the
following categories:
• (a) Reproduction right, such as copying, printed
publication or sound recording;
• (b) Translation right, such as translating the
work from one language to another;
• (c) Adaptation right, such as adapting a novel
from a novel into a movie or play;
 Economic Rights
• (d) Public performance right, such as performing
copyright work to the public;
• (f) Broadcasting right, such as broadcasts by
radio, cable or satellite;
• (g) Communication right
• (h) Distribution right
• (i) Rental right
• (j) Right of Display
• (k) Right of resale (Droit de suite) 
 REPRODUCTION RIGHT

• The right of the copyright owner to prevent others

from making copies of his works is the most basic
right under copyright. Reproduction refers to the
action of making a copy or to the copy produced by
the act of reproduction of a work protected by
copyright.
• The Copyright and Performance Rights Act defines
copying as a reproduction of a work or of an
adaptation of a work, whatever the medium in
which the reproduction is made or stored.
 REPRODUCTION RIGHT

• Reproduction of copyright works can be in any material

form.
• The term ‘material form’ includes reproduction of
copyright works in ’hard form copies’ such as tapes,
books, discs and chips; and reproduction in electronic
form, (whether transient or retained) such digital copies
of copyright works made with computers.
• Reproduction in material form, for example, of a literary or
dramatic work may consist of a copy of artistic works, and
in case of artistic works a copy made by hand or a
photograph.
 REPRODUCTION RIGHT

• As for sculptures and other three-dimensional

works the material form reproduction may be in
the form of replica.
• Furthermore, literary, dramatic and musical works
may be reproduced in material form by the making
of sound recordings or films, and films may also
reproduce artistic works in material form.
• Material form of the reproduction may be in the
same medium or a different medium.
 TRANSLATION RIGHT

• The copyright owner has the exclusive right to

translate the work.
• Translation is the expression of a work in a
language other than that of the original
version.
• For example, translating a book from one
language (English) to another (Bemba).
 TRANSLATION RIGHT

• In Radji v Khakbaz the plaintiff wrote a book called ‘In the

Service of the Peacock Throne’, which was serialized in the
Sunday Times of London. The Iran Times, a newspaper
published in the U.S.A translated the serialization into
Farsi and published it without the plaintiff’s authority. The
plaintiff sued the defendant for infringing copyright by the
unauthorized translation and publication.
• The court found that there was copyright infringement
and granted an injunction, and ordered damages to be
assessed.
 TRANSLATION RIGHT

• In relation to computer program translation means the

conversion of computer program from one computer
language or code into another.
• In Apple Computer, Inc. v Mackintosh Computers Ltd the
defendant imported clones of Apple Computers that
included unauthorized copies of the Apple operating
system embodied in a ROM (Read Only Memory) chip in
the machine. Apple sued for copyright infringement,
claiming that the computer program on the chip was a
‘reproduction’ of the written source code of the program
in which Apple had copyright.
 TRANSLATION RIGHT

• The plaintiff also argued that the computer

program forming the operating system
‘translated’ the source code.
• The trial judge agreed with the plaintiff, but a
majority of the court of Appeal found that
there had been only a reproduction, and not
a translation.
 ADAPTATION RIGHT

• The right of adaptation refers to the author’s

right to control transformation of his work
into another type of presentation, such as
changing of novel into a film or play, or by
transcribing a musical work for piano into
one for full orchestra, or vice versa.
 ADAPTATION RIGHT

• The Copyright and Performance Rights Act defines

“adaptation” to include:
• (a) in relation to any literary work, a translation of
the work, or a version of the work in which the
story or action is conveyed solely or principally by
means of pictures;
• (b) in relation to a literary work in a non-dramatic
form, a version of the work (whether in its original
language or in a different language) in a dramatic
form;
 ADAPTATION RIGHT

• (c) in relation to a literary work in a dramatic form, a

version of the work (whether in its original language
or in a different language) in a non-dramatic form;
• (d) in relation to a musical work, an arrangement or
transcription of the work;
• (e) in relation to an artistic work in two dimensions,
the reproduction of that work in an object in three-
dimensions; and in relation to a computer program, a
version of the program in which it is converted from
one computer language or code into another.
 PUBLIC PERFORMANCE RIGHT

• A public performance is considered to be any

performance of a work at a place where the
public is or can be present, or at a place not
open to the public but where a substantial
number of persons outside the normal circle
of the family and its closest social
acquaintances are present.
 PUBLIC PERFORMANCE RIGHT

• The Copyright and Performance Rights Act defines

“performance” as a performance of drama, dance or mime;
a musical performance; a reading or recitation of a literary
work; or a performance of a variety act or any similar
presentation, insofar as it is a live performance given by one
or more individuals.
• In addition the Act grants to a performer the right called the
“performer’s right” to exploit his performance by means of
recording, broadcast or inclusion in a cable program service.
• Copyright and Performance Rights Act does not define a
“Performer”
 PUBLIC PERFORMANCE RIGHT

• On the basis of the public performance right, the author or

other owner of the copyright may authorize live
performances of a work, such as the presentation of a
play in a theatre or an orchestra performance of a
symphony in a concert hall.
• Similarly, public performance also includes performance by
means of recordings.
• Thus musical works embodied in phonograms are
considered “publicly performed” when the phonograms
are played over amplification equipment in such places as
discotheques, shopping malls, work places and airplanes.
 PUBLIC PERFORMANCE RIGHT

• The Copyright and performance Rights Act does not define what
constitutes “public” as regards a performance.
• Nonetheless, the term “public” as it relates to performance has
been subjected to judicial interpretation.
• Thus in Jennings v Stephens, the plaintiff owned copyright in a
play, which was performed, without the plaintiff’s consent, for
the defendant’s women’s club by amateur players from another
women’s club. The plaintiff claimed the performance had been
“in public”.
• The defendant said that its club was private and the
performance occurred without charge. The Court nevertheless
held that the performance had been “in public”.
 PUBLIC PERFORMANCE RIGHT

• Similarly, in Turner v Performing Rights Society two

companies performed music to their employees
during working hours. The performing rights in works
thus used was vested in the Performing Rights
Society which sought to require the companies to
take a licence for the performances. The companies
claimed that the performances were not public.
• The Court held that such performances constituted
performances in public and were, therefore, an
infringement of the plaintiffs’ rights.
 COMMUNICATION RIGHT

• The Copyright and Performance Rights Act

grants to the owner of the copyright in a
work, an exclusive right to do or authorize
others to communicate to the public his work
by any other means.
• Furthermore, the Act provides that
“communication to the public” of a work
includes the performance, playing or showing
of the work in public.
 COMMUNICATION RIGHT

• The Copyright and Performance Rights Act

provides a broad scope of the means or ways
by which copyright works may be
communicated to the public, it does not,
however, define what constitutes a “public”.
 COMMUNICATION RIGHT

• It is interesting to note that, the right of communication to the

public has been defined by the WIPO Copyright Treaty of 1996.
• Article 8 of the said treaty provides that “Authors of literary
and artistic works shall enjoy the exclusive right to
authorising any communication to the public of their works,
by wire or wireless means, including the making available to
the public of their works in such a way that members of the
public may access these works from a place and at a time
individually chosen by them.
• This provision would cover, among other things, the uploading
of copyright material on a website.
 BROADCASTING RIGHT

• The Copyright and Performance Rights Act does

grant to the owner of the copyright an exclusive
right in relation to his work to or authorize others
to broadcast or inclusion in a cable program of a
work.
• The right of broadcasting covers the emission by
wireless means for members of the public within
the range of the signal, whose equipment allows
reception of sounds or of images and sounds,
whether by radio, television or satellite.
 BROADCASTING RIGHT

• Section 2 of the Copyright and Performance Rights Act defines

broadcast.
• The Act further defines cable program as the aggregate of sounds, or of
sounds and visual images, or other information, embodied in a program
as transmitted by a cable program service. Cable program service
means a service that transmits, by the emission of electro-magnetic
energy over a path that is provided by a material substance, for
reception by members of the public, visual images or sounds, or both,
capable of being received by members of the public in possession of
suitable apparatus, regardless of whether:-
• the apparatus includes a special decoding devices;
• the members of the public are in Zambia or elsewhere;
• any member of the public actually receives the images or sounds.
 DISTRIBUTION RIGHT

• Distribution is the act of putting objects into circulation

for sale, or otherwise making objects available to third
parties, especially members of the public.
• The distribution right thus enables the author to control
the dissemination of physical copies of the work.
• The author can, for instance, through the distribution
right determine how many copies of his work should be
released on the market and in which countries his book
should be put on the market.
 DISTRIBUTION RIGHT

• The Copyright and Performance Rights Act

does provide for author’s right of distribution
of copies of a work.
• It is worth noting that the distribution right, in
some countries or regional trading groupings
such European Union, are subject to
exhaustion of rights.
 DISTRIBUTION RIGHT

• The author has the right to authorise making of a copy of

his work for the purpose of sale, but that the author
should not have further right to restrict all circulation in
that country or regional grouping of that particular copy.
• The author’s right of distribution of a copy of a work is
said to be “exhausted’ as regards that particular copy
when the author has permitted or consented to the sale
of that copy.
• This principle is referred to as the “first doctrine of sale”
in the United States or “doctrine of exhaustion” in other
countries .
 RENTAL RIGHT

• Rental right is the making available for use of a work,

for a limited and for direct or indirect economic or
commercial advantage.
• The Copyright and Performance Rights Act as well as
the Berne Convention does not provide for rental rights.
• Authors of computer programs, cinematographic
works, and works embodied in phonograms shall
enjoy the exclusive right to authorise commercial
rental to the public of the originals or copies of their
work.
 RENTAL RIGHT

• Similarly, the performers and producers of phonograms are

granted the right of rental.
• Performers shall enjoy the exclusive right of authorising the
commercial rental to the public of the original copies of their
performances fixed in phonograms, even after distribution
of them by or pursuant to authorisation by the performer.
• Besides producers of phonograms shall enjoy the exclusive
right of authorising the commercial rental to the public of the
original copies of their phonograms, even after distribution of
them by or pursuant to authorisation by the performer.
 RIGHT OF DISPLAY

• In some jurisdiction such as the USA, the

author is granted a specific right to display his
work in public, this right being separate and
distinct from the public performance right.
• Therefore under the U.S. Act, the author is
granted the right to perform the copyright
work publicly and also to display the
copyright work publicly.
 RIGHT OF DISPLAY

• The display right covers literary, musical,

dramatic and various artistic works as well as
individual images of a motion picture or
other audiovisual work.
 RIGHT OF RESALE (DROIT DE SUITE)

• In some jurisdictions such as France and

Germany artists are granted the right to
participate in the sale price obtained from
the sale of their works of art or manuscripts
subsequent to first transfer.
 RIGHT OF RESALE (DROIT DE SUITE)

• This right has been recognized and justified on

the basis that an artists may be obliged or
forced to sell a work at a beginning of his
career at a low price, and yet find that, years
later, having become famous, the work is
changing hands at greatly increased prices.
THANK YOU