Moral rights – for the rich and powerful

matsch-richard-p_cp_298385.jpgWho is this man and what is he up to?

The French have a doctrine of the ‘moral rights’ of an artist.   I don’t know many of the details but it protects them against certain kinds of bowdlerisation of their works and (I think) is also the platform on which artists generates some income when they have sold their works and they get sold again.   It’s a nice idea if you’re sentimental about artists (I’m prepared to be a bit sentimental about them I guess) but I doubt it’s very good law or economics.

In any event, I was amazed to read in slashdot today that this kind of idea has popped up in the endlessly, outrageously, intellectually protectionist and extortionist United States.   CBC reports that:

Deleting swearing, sex and violence from films on DVD or VHS violates copyright laws, a U.S. judge has ruled in a decision that could end controversial sanitizing done for some video-rental chains, cable services and the internet.

The Hollywood studios argued the case very much along ‘moral rights’ lines.   Michael Apted, the president of the Directors Guild of America was pretty thrilled with the result.

“These films carry our name and reflect our reputations. So we have great passion about protecting our work  … against unauthorized editing,” said Apted in a statement on the guild’s website.

And the judge hopped in for his chop praising the Hollywood studios and directors behind the suit, ordering the companies that provide the service to hand over their inventories.

Their objective … is to stop the infringement because of its irreparable injury to the creative artistic expression in the copyrighted movies. . . . There is a public interest in providing such protection.

So there you go. Personally a service taking the muck out of films would be very handy for me as a parent of an eight and a twelve year old.   I’ve been thinking for some time how different things are now compared with a generation or two ago.   Then you could go and see pretty much any movie and adult content was ‘encoded’ as it were – the adults knew what was going on and the kids might have been bored, but they were none the wiser.   A very good system I reckon.   But no longer with us.

Recently we didn’t go to Click – from what I could see a kids movie about someone who had a remote control that could control things other than the tele.   Sounded like the kids would like it, but it was rated M, so we didn’t go, not knowing what surprises the M might be warning us about.

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12 Responses to Moral rights – for the rich and powerful

  1. Ken Parish says:

    Moral rights protection isn’t confined to the US and France. In fact they’re enshrined in the Berne Convention that provides the basis for the copyright laws of just about all countries. Australian copyright law now recognises moral rights too. See this article for a fairly substantial coverage of the concept.

    I have some sympathy with your observations about your children and their subjection to gratuitous swearing, sex etc. But maybe that’s better seen as a criticism of the accuracy of our film classification system than of the supposed iniquity of giving some degree of legal recognition to the moral rights of creators of films and other works. Maybe it also suggests that many parents may be somewhat more relaxed about what their kids see. Personally I wouldn’t be at all worried about the effect an M-rated film would be likely to have on my 12 year old, although I’d be a bit more wary about an 8 year old child.

    There are certainly some cogent arguments that can be made against overly prescriptive moral rights protection, not least flowing from the inherently incremental and derivative nature of all creative works, whcih renders problematic a legal regime that privileges the specific artistic “vision” of a specific artist over all others from whom she borrowed and who may wish to borrow from her and then add their own creative spark and thereby create a different work. Collage and modern music involving digital sampling are only the most obvious examples. However, that sort of difficulty doesn’t really help the mostly Utah-based christian movie “scrubbing” companies which produce and resell sanitised versions of contemporary films, with all swearing, sex, nudity etc removed. I frankly don’t blame the film makers for exercising their moral rights against these presumptuous wowsers. They don’t on any view add any creative element to the existing film. If they want a G-rated product to show to fundie families,they should go and raise money from the wealthy fundie churches of the US bible belt and produce their own sanitised pap.

  2. david tiley says:

    There is a fundy movement to make films, following on from rapture literature.

    Besides Ken’s description of derivation, the moral rights legislation suffers from the fact that many works are collective. It led to producers, writers and directors of films in Australia getting very narky with each other.

    Here we solved the problem very simply. Moral rights, considered to be inalienable, and conjured from the idea that they exist apart from the marketplace, can be bought and sold. Not even for money – its just a routine line in a contract.

    There was a famous case a few years ago in which a Japanese industrialist bought a Van Gogh Iris, at the time the most expensive art purchase in the world. He then announced that he wanted it burnt at his funeral.

    Does he have the right to do that?

    I suppose I agree that a percentage of the resale price of a painting should pass back to the artist. When we look at the average wages of artists in Australia, that seems sensible. But then, I presume the maker is compensated by an increase in the purchase price of the next new works.

    ——-

    It does depress me that we seem to be incapable of producing films for kids that don’t have adult elements. The Australian Children’s Television Foundation has a deserved reputation around the world for doing just that, to the honour of our culture. And there is a significant subsection of the industry that works continuously on kid’s programs. Amazingly, the sector depends on government money to survive, and the C classification system.

  3. Ken Parish says:

    Hi David

    I agree. The inherently collaborative nature of the film genre also makes the concept of moral rights somewhat problematic. However, as with the derivative nature of artistic creation, that argument doesn’t assist the christian fundie movie “scrubbers”. They had no involvement of any sort in the creative process and on no view could be said to enjoy moral rights over the work.

    If it was really true that there was a dearth of available family-oriented movies (as suggested by your comment that “we seem to be incapable of producing films for kids that don’t have adult elements”), that might provide a barely plausible basis for “scrubbers” to adopt self-help remedies to provide suitable viewing for children in the face of the decadent Hollywood moguls intent on corrupting youth!! But a quick glance at the current program at our local multiplex suggests that the argument isn’t actually all that strong (although it’s school holidays so maybe it’s a skewed sample). Apart from Click which Nicholas mentioned, and which is noted as having “moderate sexual references and moderate coarse language”, there is Little Man which has “moderate sexual references”. Parents might well regard them as unsuitable for an 8 year old, and for at least some 12 year olds (although I’d guarantee that he/she hears much worse in the school playground on a daily basis). However, Cars, Hoodwinked, Over the Hedge and Superman Returns look to me to be entirely suitable for either 8 or 12 year olds. And Pirates Of The Caribbean: Dead Man’s Chest and Stick It look to be suitable at least for 12 year olds if not for younger children. It doesn’t really suggest a desperate need for self-help censorship by the wowser brigade.

  4. Ken, I think you’re letting your views of the scrubbers get the better of you. If they want to pay for the copyright and scrub out the dirty bits, or any bits for that matter, why would you stop them? And if you’d stop them should you stop them if they clearly mark the result as derivative, and not the original. If one wanted to release a remake of ‘Triumph of the Will’ with lots of interpolations of a satirical or other kind, what’s the problem? Anyway, this has provoked me to post an old column which is above under ‘counterfeit gooes’. I think the maxim of not misleading the consumer goes a long way in these matters.

  5. Ken Parish says:

    Nicholas

    As you are aware, the moral rights concept establishes an additional right in a creator. Not only can they authorise or withold authorisation of copying, but they can also authorise or withhold authorisation of alteration of the original work. I wouldn’t have a problem if the rights holder had authorised not only copying but alteration/deletion, but obviously they didn’t in this case. Presumably in many cases the rights holder would be prepared to authorise censoring of the work for a price, as with dealing with any other form of property.

    As I commented previously, I agree that the moral rights concept is problematic in terms of potentially stifling subsequent creativity e.g. artists who take and alter part of the work and add new creative elements to create a new work. But I don’t agree that there should be an open slather right for others without permission to adulterate/censor an artistic work without adding any creative element of their own. All you are doing then is permitting the outsourcing/privatisation of oppressive censorship, especially in a country like the US where powerful fundamentalist christian groups can and do utilise money and muscle/intimidation to stifle discussion or exposure of messages and issues of which they don’t approve. The moral rights concept has the potential to be an instrument for stifling creativity and progress, but so too does the conduct of the “scrubbers”. It seems to me that it should be possible to devise a reasonable form of protection for a creator’s moral right in the artistic integrity of their work (which would certainly prohibit activities like “scrubbing”), without stifling the creativity of subsequent creative artists. Indeed, tradeable moral rights allied with fairly liberal “fair use” defences just about achieves that IMO.

  6. Ken Parish says:

    I should also comment specifically on this passage from your previous comment:

    “If one wanted to release a remake of ‘Triumph of the Will’ with lots of interpolations of a satirical or other kind, what’s the problem?”

    I wouldn’t have any problem at all with that. Unlike the “scrubbers”, someone who produces a version of a work with substantial satirical interpolations IS adding their own creative element and thereby creating a new work. Indeed that sort of exercise might well be lawful under existing fair dealing/fair use defences (if it can be said to be for educational, critical etc purposes). It’s very different from the activities of the “scrubbers” who add nothing but merely subtract and stifle.

  7. Stephen Bounds says:

    Nicholas,

    You’re conflating two separate things when you refer to “moral rights”. According to the Berne convention, an artist’s moral rights are:

    Article 6bis
    Moral Rights:

    1. To claim authorship; to object to certain modifications and other derogatory actions; 2. After the author’s death; 3. Means of redress

    (1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and 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 honor or reputation.

    (2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained.

    (3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.

    The right to generate income on the resale of artistic works is much more controversial. It is recognised in France and a couple of other countries as “droit de suite”, and was raised in Australia under the term “resale royalties”. It is seen as a way to ensure equitable outcomes for artists in Indigenous communities who often sell their art cheaply and later have their works resold for tens or hundreds of thousands of dollars.

    But Article 1 makes it pretty clear that the Berne convention intends authors to have control over how their work is presented. I think that’s fair enough — I don’t see why filmmakers should have to fight against activities that would be seen as clearly unacceptable in other media. For example, book authors can expect that their text is published verbatim, or if translated, the translation should attempt to capture the original intent of the words.

    There’s a big difference between commercial and non-commercial use here in my opinion. If I bought a copy of a DVD and re-cut it for my kids, that should be legal, but I shouldn’t be able to manufacture and sell them.

    Importantly, the US has passed legislation protected DVD players that automatically skip over “objectionable” sections of unmodified DVDs:

    Early on, the legal sparring involved Salt Lake City-based ClearPlay, which offers video filtering software that allows for home viewing of cleaned-up versions of Hollywood titles.

    ClearPlay offers software programs developed for specific titles that users can run on their computer or ClearPlay’s proprietary DVD player along with an official copy of the DVD. With this technology, a nude shot of an actor can be altered to show a silhouette, or profanity can be bleeped out. Because ClearPlay’s technology does not involve making an altered DVD copy, it has been shielded from the copyright infringement claims. The debate over movie content filtering activities made its way into Congress, which passed the 2005 Family Movie Act that protects ClearPlay and other software-based filtering companies. Matsch noted that Congress at that time had the opportunity to also carve out legal protections for CleanFlicks and its ilk, but chose not to.

    This allows the user to exercise control over what they see without modifying and distributing the original artistic work. I think this is a suitable compromise. Don’t know if this technology is legal in Australia though.

  8. Thanks Stephen,

    You are of course dead right and I was being very sloppy in the original post – mea culpa. Conflation is what I done. It’s a fair cop.

    Your clarification opens up some very interesting issues which I might try to post about some time. I don’t really accept that it isn’t legitimate having purchased the copyright and paid licences for x copies of a work to then ‘on-distribute’ them as one sees fit (for instance as in the film Bedazzled where the devil distributes Agatha Christie novels with the back page removed.)

    It seems to me that by releasing and trying to make money out of the public realm, some private rights are surrendered and one of those is control of the work. If I thought this might drown good work in derivative dross I might think differently, but I don’t. Generally I think we underplay the collective rights of the public. Anyway, I’m sorry that this sounds very Delphic, but I will try if I get a chance to expand on what I’m talking about in a subsequent post.

    Teaser – it will be about how much we should pay sportspeople (amongst other things).

  9. derrida derider says:

    What a pyrrhic victory though! Those fundy video stores will now just not rent those movies – losing the studios revenue.

    IP is one area where corporations’ greed consistently distorts their judgement.

  10. Ken Parish says:

    DD

    I might be wrong, but my general understanding of the case is that the plaintiffs were Spielberg, Robert Redford and a number of other individual directors holding moral rights, not the big film companies themselves. I suspect that the reason for this is that these are the big directors who have enough market clout to be able to retain their own moral rights by refusing to sign standard studio contracts (referred to by David Tiley) which simply assign moral rights to the studio as a term of employment as director, scriptwriter etc. Thus, although the film-making and distribution companies themselves might well have chosen to allow “scrubbing” to continue because they still make a buck out of selling censored versions of DVDs to god botherer families, the big directors as individuals are more concerned about the integrity of their artistic creation and preserving their artistic reputations than they are about maximising income from the film at any cost.

  11. Thomas Fischer says:

    Hollywood directors and studios are very short sighted. Their box office is getting worse all the time except for a few exceptional movies like Captain America. There are many interesting dramas on HBO like Rome or Game of Thrones with plenty to hold your interest, but I have to watch it after everyone else in the family has gone off to bed because Game of Thrones has all these ridiculous bedroom scenes that add nothing of value to the series, and all these annoying vulgar references to men & women’s private parts. I would love to have all the F & P words bleeped out and a bit of visual distortion where the boobs and other private parts show up. Then I could watch game of thrones with out having to fast foward through the fleshy bits, but it is hard to fast forward past one verbal errupton of the F Word. So finally we had some good family friendly technology come along and all the sodomite directors and studio executives had to sue. Shame on them.

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