The United States Court of Appeals for the Ninth Circuit recently affirmed a district court's decision in favor of rapper Jay-Z, dismissing "moral rights" infringement claims brought by the heir to Egyptian composer Baligh Hamdy's copyright in a 1957 arrangement of the song Khosara 1. This decision has created global intrigue on what "moral rights" are and if and how they can be protected. This article considers moral rights in Canada, and concludes that a Canadian court might be more receptive to claims like those brought against Jay-Z in the United States.
What are Moral Rights in Canada?
Moral rights are provided for in Canada under sections 14.1(1) and 17.1(1) of the Copyright Act, which provides that the author of a work or a performer of an aural performance has the right to the integrity of the work and the right to be associated with the work as its author. Moral rights subsist for the same term as the copyright in the work 2, but cannot be assigned and belong to the author regardless of who actually owns the copyright 3. Consequently, moral rights pass to the author's heirs rather than the copyright owner upon the author's death 4.
How are Moral Rights Infringed?
Moral rights are infringed by acts or omissions that are contrary to the author's right to the integrity of the work or the author's right to be associated with the work as its author 5. The right to association with a work is subject to a reasonableness standard, while the right to the integrity of a work is infringed only if the work is used in association with a product, service, cause or institution, or modified in a way that prejudices the author's honour or reputation 6. For paintings, sculptures and engravings, any distortion, mutilation or modification is deemed to prejudice the author's honor and reputation 7, and consequently to infringe the author's moral rights. For other types of works, what constitutes a modification that prejudices an author's honour or reputation is less clear.
The Canadian courts first examined this issue in Snow v Eaton Centre Ltd 8. In this case, the Ontario courts found Toronto Eaton Centre liable for infringing the plaintiff's moral rights by putting Christmas ribbons on the plaintiff's sculpture and displaying the "modified" sculpture. Moral rights issues were more recently discussed by the Supreme Court of Canada (SCC) in Théberge v. Galerie d'Art du Petit Champlain Inc 9. In this case, the plaintiff sought an injunction to prevent the defendant from infringing his copyright in a poster by lifting the ink that was used to print the poster and transferring it onto a canvas. The court considered the plaintiff's attempt to "assert a moral right in the guise of an economic right" 10, and dismissed the plaintiff's action since no substantial reproductions of the poster were made in the process. It is unclear how the SCC would have ruled had the plaintiff brought a claim for moral rights infringement rather than infringement of an economic right.
Notwithstanding that the claim was not successful in that case, moral rights are more generously provided for in the Canadian Copyright Act than under United States law. In addition to the right "to produce or reproduce the work or any substantial part thereof in any material form whatever, [and] to perform the work or any substantial part thereof in public" 11, Canadian authors, artists and musicians also have the right to preserve the integrity of their works. For musicians, this may mean that any unauthorized use of their musical works in association with a product, service, cause, or institution constitutes an infringement of their moral rights, and modifications of the work that are made to the prejudice of the honour or reputation of the author may also be an infringement of moral rights in Canada 12.
Unlike in the United States where only works of "visual art" are protected by moral rights (see 17 U.S.C. § 106A(a)), Canadian copyright laws do not impose such a limitation. In fact, Canadian copyright law expressly extends moral rights to performers of aural performances 13. Hence, music and other forms of literary works are also protected by moral rights in Canada. The Canadian courts may not have been as dismissive about the plaintiff's claims in the Jay-Z case had such an issue been brought up in Canada.
1 Fahmy v. Jay Z, United States Court of Appeals, Ninth Circuit, No. 16-55213, 31 May 2018
2 Section 14.2(1) and 17.2(1) of the Copyright Act
3 Section 14.1(2) and 17.1(2) of the Copyright Act
4 Section 14.2(2) and 17.2(2) of the Copyright Act
5 Section 28.1 of the Copyright Act
6 Section 28.2(1) of the Copyright Act
7 Section 28.2(2) of the Copyright Act
8 Snow v The Eaton Centre Ltd. (1982) 70 CPR (2d) 105
9 Théberge v Galerie d'Art du Petit Champlain Inc  2 SCR 336, 2002 SCC 34
10 Théberge v Galerie d'Art du Petit Champlain Inc  2 SCR 336, 2002 SCC 34 at para 74
11 Section 3(1) of the Copyright Act
12 Section 28.2(1) of the Copyright Act
13 Section 17.1(1) of the Copyright Act
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