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Vincent Porter
copyright
WIPO


The Authenticity of the Work
part 5

One of the key differences between works which are stored or transmitted in digitized form is the ease in with which they can be transformed, or as their rights owners would say, deformed. A key aspect of consumer protection on the information highway will therefore be to ensure that the version of the work which is rented, or bought, is genuine and complete. This will be particularly important as the consumer, or perhaps more properly the subscriber, will be paying to see or hear the work before it can be inspected. In effect, the work will be electronically shrink-wrapped.

One obvious way to tackle this problem would be to rethink the role of the author's moral right, and in particular the right of integrity. The moral rights of authors have been virtually ignored in the headlong rush to international harmonisation. The USA has been allowed to ratify the Berne Convention even though its domestic laws afford virtually no protection for an author's moral rights. In the United Kingdom an author can be required by a publisher to waive his or her moral rights. Under the TRIPS Agreement, although member states have to comply with the substantive provisions of the Berne Convention, they are under no obligation to protect the moral rights of authors. Finally, in the European Union, all four copyright directives are silent on moral rights.

Until recently, common law countries have had a sound economic argument for denying authors their right of integrity. If the rationale of copyright law was to serve the welfare of the public by promoting the progress of science and the useful arts, in most cases this required a marriage of labour and capital - the author and the investor. It would therefore be unwise to grant a right of integrity to the author, as it would be likely to discourage investment, for if the investor wanted to modify a work in order better to satisfy the needs of the consumer, the assertion by the author of a right of integrity could prevent this.

It must be remembered however, that this argument only holds good so long as two conditions pertain. The first is that the investor can retain control over the integrity of the work once it has been put onto the market. This will now be difficult to enforce once a work is digitised. The second is that the consumer can inspect the work before purchasing it - by browsing through a book for instance. In some fields of exploitation, such as film exhibition, consumers have traditionally had no means of knowing whether or not they were seeing the integral version of a work, they have relied on the retailer, here the cinema exhibitor. But in others, such as television transmission, neither the investor nor the consumer has been able to prevent the work being interrupted by advertising commercials.

One way to overcome these difficulties would be to augment the author's right of integrity with a new right of integrity for a work when it was digitally transmitted. This right would be owned by the person making the arrangements for the production of the work, that is the producer. It would therefore encourage, not just the labour to create the work, but also the investment necessary to produce the work. In addition, it would provide the consumer with a guarantee of authenticity.

 
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