US Copyright Office Conducting Public Study on Moral Rights Laws

The US Copyright Office is requesting public comments for a public study assessing the state of US moral rights laws.

Practical Law Intellectual Property & Technology

On January 23, 2017, the US Copyright Office issued a notice requesting public comments on how existing US law protects the moral rights of authors. The request for comments is part of a public study to review the current state of existing US law recognizing and protecting the moral rights of attribution and integrity. The study also will address whether any additional protection is advisable.

Moral rights generally are non-economic rights that are personal to an author. The principal focus of the Copyright Office's study are the moral rights of:

  • Attribution, the right of an author to be credited as the author of her work.

  • Integrity, the right of an author to prevent prejudicial distortions of her work.

In July 2014, as part of a review of US copyright laws, members of the Subcommittee on Courts, Intellectual Property, and the Internet of the House Judiciary Committee expressed interest in evaluating the status of US protection for moral rights. The Register of Copyrights recommended further study of moral rights in 2016 at the end of the copyright review hearings process. Then the Committee requested that the Copyright Office conduct a study of the US's moral rights laws and determine whether additional protection is warranted.

Unlike other countries, the US has not adopted broad moral rights provisions as part of its federal copyright statute, the Copyright Act. Instead, US moral rights protection is comprised of a patchwork of federal and state statutes and common law. The notice provides a summary of US moral rights law and history, including moral rights requirements of international treaties, including the Berne Convention.

Specifically, the Copyright Office is seeking comments on:

  • The state of moral rights protection in the US, including:

    • the current means of protection;

    • whether additional protection should be considered; and

    • if so, what specific changes should be made.

  • How effective the Visual Artists Rights Act (VARA) (17 U.S.C. § 106A) and the Digital Millennium Copyright Act (DMCA) (17 U.S.C. § 1202) have been in promoting and protecting moral rights.

  • Whether improvements should be made to the VARA and the DMCA.

  • Whether stronger moral rights protections may implicate the First Amendment.

  • If a more explicit provision addressing moral rights were added to the Copyright Act, what exceptions or limitations should it contain (17 U.S.C. §§ 101 et seq.).

  • How federal case law (specifically, Dastar Corp. v. Twentieth Century Fox Film Corp. 539 U.S. 23 (2003)) has impacted moral rights protections and whether Congress should consider legislation to address it.

  • The impact of contract law and collective bargaining on enforcement of moral rights.

  • How the issue of waiver of moral rights affects transactions and other commercial and non-commercial dealings.

  • Foreign countries' approaches to moral rights protection and whether they can be implemented in the US.

  • How technology can be used to protect moral rights.

  • Whether there are voluntary private sector initiatives that could be developed to help authors secure and enforce their moral rights.

The Copyright Office must receive written comments by 11:59 p.m. ET on March 9, 2017 and written reply comments by 11:59 p.m. ET on April 24, 2017. Comments must be submitted electronically on the website. Specific instructions for submitting comments are on the Copyright Office website. The Copyright Office may announce one or more public meetings after it receives the written comments.

On March 2, 2017, the Copyright Office extended the deadline to submit initial written comments to 11:59 p.m. ET on March 30, 2017, and written reply comments to 11:59 p.m. ET on May 15, 2017 (82 Fed. Reg. 12372-01, 2017 WL 784355 (Mar. 2, 2017)).

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