The integrity right of authors is not absolute. This research aims at examining how to confine the extent of the authorial integrity right from the comparative and international perspectives for the purpose of redressing a fair and justified balance between authors and other parties involved.
Last Update: 11.06.19
The integrity right of authors is an important moral right in the context of copyright law that protects the work against changes of the form in which the author had initially expressed it. This research aims at exploring the extent of the integrity right for the purpose of redressing a fair and justified balance between the authorial integrity embodied in the work and the interests of other parties involved and the public at large.
Chapter 1 indicates that Article 6bis of the Berne Convention has set up two-fold possible restraints in limiting the extent of the integrity right, that is, (1) there should be a derogatory treatment of the work; and (2) such derogatory treatment would be prejudicial to the honor or reputation of the author. However, such confinements are possibily insufficient primarily due to the requirement of the minimum level of protection and the delicate flexibility in formulation for national implementation and interpretation.
In Chapter 2 a comparative study in five selected jurisdictions, i.e., China, France, Germany, UK and the US is conducted. It identifies the divergences of the statutory rules imposed by the national copyright laws to confine the subsistence and the exercise of the integrity right and provides the theoretical and systematic explanations therefor.
Chapter 3 further explores special issues, such as possible limitations on the exercise of the integrity right in dealing with conflicts of the author’s personal interests against deformation of his work with the legitimate interests of the property owner in the physical embodiment of the work, the commercial exploitation of the works with contractual authorization of the author; and the freedom of artistic creation and expression of the subsequent authors and end users. In particular, it discusses the issues of waiver, works in the public domain, the modifications made as a result of adaptation, parodic modifications, destruction, illegal placement of a work, site-specific works, and the removal of a work which has been incorporated in a building.
Chapter 4 argues that the balance of interests would serve as a general principle in defining and confining the extent of the integrity right of authors. It reviews the judicial approach developed by German courts and the normative approach adopted in Australia. Further, general principles and common considerations in applying the balancing test are analyzed for the mutual benefits that the countries can learn from each other despite the substantial divergences in the statutory and theoretical rules of the authorial integrity right.
Yanbing Li
Prof. Dr. Thomas Dreier
I.4 Fairness als Rechtsprinzip
