Exercise 3
Assume that you work for Professor Higgins’ institution and you deal with copyright clearances for the exploitation of materials to students and elsewhere. Please read the following scenario and consider whether or not in your view it may be possible for Professor Higgins to feel his right of integrity has been infringed.
Scenario
Professor John Higgins is an expert on modern and ancient art. His academic reputation is renowned widely and he is invited to many academic gatherings and discourses on his subjects. He is well known in the broadcast industry. The institution he works for sells their courses worldwide. Recently the institution translated and edited some of the course materials he authored to take account of some cultural differences which exist in some of the educational institutions the materials have been licensed to in the Middle East. He is named as the academic author on the course. The translated and edited materials have also been licensed to some educational institutions based in the UK.
Please now indicate which of the following responses would most closely fit your view of Professor Higgins’ position. Then read the Commentary.
Responses
| A | Professor Higgins is an employee and as such is not entitled to moral rights. Therefore Professor Higgins’ moral rights have not been infringed. I would not need to take any action and the exploitation of the courses which Professor Higgins wrote may be altered and licensed with no risk to the institution. |
| B | Professor Higgins is an employee and is not entitled to moral rights. However, I would inform Professor Higgins as a matter of courtesy that the course he wrote has been sold to other institutions abroad and in the UK. No further action need be taken. |
| C | Whilst Professor Higgins is an employee and not entitled to moral rights, it is our custom to let him know of the plans for the course he authored and that it will be edited and translated for a particular customer. Other than following my usual course of action, nothing untoward or unusual for us. |
| D | Whilst Prof Higgins is an employee (employees are not afforded moral rights), if he is named as the author, then (unless his contract of employment is constructed quite tightly) he is capable of claiming moral rights and the translation and editing of the materials may have altered the original context to a form he may not approve of. |
Commentary
If you chose D, that is the closest to the correct answer. As far as employment is concerned, it is true that – if the author was named previously and is named in the revised editions for the commercial market – then that author has the moral right to object to derogatory treatment. The integrity right does not have to be asserted (unlike the paternity right) and lasts as long as copyright. In the scenario in this exercise, it would be reasonable to conclude that the demand for the course has resulted from the standing Professor Higgins has in his field and having his name attached to it, along with that of the institution, which together enhance the validity and quality of the course material. However, although the country in which the course has been sold may not recognise moral rights, the edited and translated course has also been licensed in the UK, which does. Translation and editing of a work are not on their own a case for claiming breach of the integrity right. However, if the editing – even minor – altered the structure of Professor Higgins’s work, it is possible that his right of integrity has been infringed.
The trouble with moral rights is that there are many differing opinions as to what amounts to a distortion or mutilation of work which may have a derogatory effect on the reputation of the author being impugned. Case law is still emerging in the United Kingdom. In this situation, many people will apply subjective judgements instead of sound working practice to ensure that, as far as possible, the risk for their workplace is kept to a minimum. It is not just about the likelihood of cases going to court (most don’t) – it’s about the time it may take to deal with complaints and perhaps to recall materials – which in some circumstances could lead an institution to be in breach of contracts (unless that is taken care of).
So how do you keep risk to a minimum?
Good practice.
If you are dealing with any issues to do with academic employees’ work (authoring/editing/translations/any alterations), familiarise yourself with the contracts of employment governing this. Whilst copyright may rest with the institution and moral rights may not apply – as with all contracts there may be agreement as to how the work of an institutional academic is handled. Do they need to be notified/consulted if work is being re-edited (from original)? You might not need approval for changes – just notification to them – in which case a courtesy letter can be sent.
If it is policy to name author, then – unless the contract is very tightly constructed otherwise – moral rights (integrity right) will be available to the author when the work is published commercially. This means that any structural/editorial changes to the work should either be agreed with the author, or, depending upon the situation, a sufficient disclaimer published with the revised edition.
When commissioning work from external authors, ensure that the contract has a moral rights waiver – this waives both the paternity and integrity rights. Some authors refuse to sign such a waiver, but despite their refusal would usually agree to any reasonable changes required.