Culture Matters: Why Canada's Proposed Amendments to its Copyright Law Should Revisit Moral Rights
| Author | Mira T. Sundara Rajan |
| Pages | 476-499 |
Culture Matters:
Why Canada’s Proposed Amendments to its
Copyright Law Should Revisit Moral Rights
Mira T. Sundara Rajan*
A. INTRODUCTION
Copyright law has not ent irely lost its abi lity to sur prise. Canada’s latest
round of proposed copyright refor ms, the third “new ” bill in five years,
reminds us of one area in which internation al copyright rules have taken
an unexpec ted twist: performers’ rig hts.
Since , performers have enjoyed more rights than ever before in
the h istory of cop yright law. I n that yea r, a Copyr ight Treaty and a Per-
formances and Phonograms Treaty, prepared b y the World Intellectual
Property Organ ization (WIPO) and known collectively as the WIPO Inter-
net Treaties, entered into force. Of the two, the WIPO Performa nces and
* For a comprehensive tre atment of moral rights, o n which this ar ticle is based, see
Mira T. Sundara R ajan, Moral Rights: Prin ciples, Practice and Ne w Technology, Oxford
University Pr ess (New York) . e author would li ke to thank Tom Horacek, JD
(UBC, ) for his assistance w ith citations. i s research was suppor ted by the
Social Sc iences and Humanit ies Research Counc il of Canada.
e current Bill C- was tabled by the gov ernment on June . Bil l C-,
An Act to Amend the Co pyright Act, d Ses s., th Parl., , www.parl.gc.ca/
HousePublic ations/Publicat ion.aspx?DocId= &Langu age=e&Mode=. Bi ll
C- was intr oduced in , and Bil l C- appeared in : www.parl.gc.ca/
HousePublic ations/Publicat ion.aspx?Docid= &file= . A commentary on
Bill C- i s available at /ww w.parl.gc.ca/Sites/LOP/Legislative Summaries/Bil ls_
ls.asp?lang=e&source=library_prb&Parl=&Ses=&ls=C.
WIPO Copyright Treaty, Decemb er , www.wipo.int/treaties/en/ip/wct/trtdoc s
_wo.html, I.L.M. [WCT]; W IPO Performances and Phonog rams Treaty,
Chapter Sixte en: Culture Matters
Phonograms Treaty (WPPT) introduced various specific improvements to
the internationa l status of performers. Among its innovations, the W PPT
counts a new “moral right” that seeks to protect the non-commercial in-
terests of per forming artists in their work. In doing so, it focuses on two
aspects of the per former’s art. Fi rst, every performer is entitled to have
his or her performance attributed to him or her by name. Second, the
integrity of the performance is to be protected by prohibiting distortion,
mutilation, or dam aging alteration of the work.
In a world where discussion of copyright issues se ems fixated on the
money to be made, the performer’s mora l right is a c urious stab at a ltru-
ism — a throwback, perhaps, to a nineteenth-century vie w of art as a
vitally important ac tivity car ried on by gifted people. Moral r ights such
as these, whether for authors or perfor mers, have been strongly opposed
by the United States. In particula r, an eminently practica l copyright lobby
in Hollywood apparently sees moral rig hts as an idea beyond redemption.
Among other concerns, the Hollywood film industry v iews the potenti al
loss of commercial control over t he substantia l economic i nvestment in
films as a di sastrous turn for the US film indu stry.
In response to these concer ns, the moral rights of performers m andat-
ed by the WPPT do not apply to any situation where a performance is used
in t he context of a fi lm. But t his restrict ion, though significant, is still
a relati vely minor one. A much la rger issue may be why, and how, moral
rights found their way i nto the international copyright reg ime at all.
ere are at least two interesting ways of responding to this question.
e fi rs t is to n ote the pre occ upa tio n of the mus ic i ndu st ry wit h t he e xp an-
sion of copyr ight to cover new med ia activities, suc h as the down loading
of music files from the Internet. e music industr y may see any increase
of rights as p otentially beneficial to copyright-holders — even though
performers’ moral r ights must always remain vested in individual human
beings, a nd, with t he limited exce ption of Japan, c an never be exercised
anywhere by a cor poration. Apar t from a fe w commentators who have
December , w ww.wipo.int/treaties/en/ip/wppt, I .L.M. [WPPT].
WPPT, above note , Art. ().
WPPT, above note , Art. ().
See, for example, David Ni mmer’s discussion of t his issue: David Nim mer, “Conven-
tional Copy right: A Moralit y Play” () Entertai nment Law Review at –.
Note the definition of “phonogram” i n Article ( b) of the WPPT, above note .
is peculia rity of Japanese law is a ccomplished by includ ing corporations w ithin
the Japanese defi nition of authorship. See Jap anese Copyright Ac t, available in En g-
lish tran slation on the website of the C opyright Resea rch and Informat ion Center
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