Copyright
3. Moral Rights
Copyright, as we now know it, is of relatively modern origin. Even into the middle ages, the concept of ownership in a work was largely foreign, since reproduction of literary works and artistic works was still done by hand, and to have one's works so reproduced amounted to flattery of a high order. However, such reproduction was only tolerated if due credit was given the author; plagiarism, for example, was not treated lightly. Given this long tradition, it is unsurprising that current Canadian copyright law maintains a right of paternity, so as to provide to an author the right to be named as author of his or her works (or to remain anonymous, or to claim authorship under a pseudonym).
In combination with the right of paternity, there has also been statutorily created in Canada a right of integrity, which provides to the author of a work the right to prevent its distortion, mutilation, or use in association with products, services, causes or institutions, if such use would result in prejudice to the honour or reputation of the author. However, establishing that an activity would be "to the prejudice of the honour or reputation" of an author might be difficult in a court of law. For this reason, the Copyright Act includes a deeming provision, whereby, in the case of a painting, sculpture or engraving, prejudice is deemed to occur in respect of any distortion, mutilation or other modification to the work. One of the few reported moral rights cases involved the sculpture of Michael Snow entitled "Flight Stop", which comprises 60 individual geese, positioned high within the atrium of the Toronto Eaton Centre, and is illustrative of the type of activities which may be found to constitute a "distortion, mutilation or other modification" . One year, as part of Eaton's Christmas decoration effort, red ribbons were tied about the necks of the geese, and the artist, who claimed that affixing ribbons in this manner was prejudicial to his honour and reputation, was successful in obtaining a judicial order requiring that the ribbons be removed, even though no permanent harm or change to the sculpture was intended by Eaton's.
The right of integrity and right of paternity are collectively referred to as "moral rights", and only apply to "works" within the meaning of the Copyright Act; as such, current wisdom believes them to be inapplicable in the case of performer's performances, mechanical rights in sound recordings and in communication signals. Moral rights cannot be assigned, but they may be waived, in whole or in part. Accordingly, it is important, in circumstances wherein ownership of a copyright is being transferred, that a suitable written waiver of moral rights, reflecting the reasonable expectations of the purchaser, also be obtained, so as to enable the purchaser to subsequently use the copyright in accordance with his or her intended purpose.
In the United States, a right to be named as author of a work is available to an author, as is a right to prevent any intentional distortion, mutilation or other modification of the work which would be prejudicial to his or her honour or reputation. However, moral rights, in the broad Canadian sense, do not exist under United States law, and the rights available in the United States differ in numerous ways from Canadian moral rights. For example, in the United States, the rights of paternity and integrity do not apply in respect of commissioned works, nor is there a prohibition against use "prejudicial to the honour or integrity of the author" in association with products, services causes or institutions. As well, waivers of the paternity and integrity rights must be in writing, and signed by the author. However, it should be noted that the foregoing is not an exhaustive list of differences, and should further information in this regard be required, the reader is urged to seek professional advice.