Designing a freedom of expression-compliant framework for moral rights in the EU: challenges and proposals

In the discussions on copyright and freedom of expression, it is common to focus on copy-right’s economic rights and their potential to restrict the users’ freedom of artistic creativity, freedom to express criticism or freedom to receive and impart information. By contrast, moral rights of the authors (such as the right of divulgation, the right of attribution and the right of integrity) have been much less explored with regard to their potential conflict with creators’ and users’ freedom of expression. Without doubt, moral rights are at the core of copyright protection, in particular in systems following the so-called “civil law” tradition. Their protection represents an important interest that can claim fundamental rights foundations. On a more general level, moral rights can emanate from the need to protect the authors’ dignity and personality - the values underlying a number of fundamental rights in the human rights treaties. More specifically, certain scholars allocate the interest in the protection of the authors’ moral rights in the right to privacy and personal integrity, others - in the so-called “negative” aspect of the right to freedom of expression - the right not to speak and to be free from unwanted associations. Either one way or another, however, the interest of the author in the protection of her personality via moral rights should not be accorded absolute and hence unqualified protection. In particular, competing freedom of expression interests of users (including derivative creators) must not be neglected as a result of such protection. The argument of this chapter is that, despite a relative lack of attention towards the effects of moral rights on the freedom of expression of others, moral rights, if applied in an unlimited way, might impede users’ freedoms even to a greater extent than economic rights of copyright holders. The problem thus deserves further scrutiny and solutions need to be advanced to guarantee that uses of copyright-protected works that are essential for a democratic society are not unduly hindered by moral rights.