Abstract
In March of 2014 Nature Publishing Group, responsible for the publication of journals such as Nature and Scientific American, was subject to criticism for its requirement that contributing authors waive their moral rights (a component of their copyright) in relation to their published articles. Some of the rights included under the umbrella term ‘moral rights’ are the right to have any copies of one’s work reproduced accurately and without alteration; the right to the accurate attribution of one’s work under one’s own name; and the right not to have the work of others falsely attributed to oneself. The Nature Publishing case, from the criticism it sparked to the group’s own response, highlights a category error that occurs when moral rights are conceived of as property rights. Rather, moral rights are natural, non-proprietary rights. In correcting this category error it becomes evident that moral rights offences are not property offences, such as theft, but fraud offences—like plagiarism and forgery. Subsequently, whereas property rights, by definition, are able to be transferred or waived, it can be shown that no justification can be made for treating moral rights as transferrable or able to be waived.
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Notes
It is important to distinguish this claim from the central thesis of the paper. The claim that copyrights, insofar as they are proprietary economic rights, cannot be natural rights, is an ambitious claim that has a history of contention. Although I suggest that a conflation of the natural status of moral rights with the broader economic components of copyright contributes to confusion throughout that discussion, the success of the claim that moral rights offences are deception offences is not contingent on the claim that economic intellectual property rights cannot be natural. Established detractors who defend the existence of some natural proprietary copyrights, based on a Lockean conception of natural law, need not see any conceptual conflict between that position and the central claim here, which is that moral rights cannot be taken to be rights of that kind.
An alternative explanation of the wrongful attachment of another’s name to a work they did not produce may present the name itself as the proprietary object that is owned. In this vein, the attachment of the name would constitute an unauthorised use of private property. However, this invites the inverse problem of one’s right to attach another’s name to something accurately, but without permission, as well as the permitted use of the name inaccurately. Although I leave a more involved discussion for another place, the determining factor in the ethicality of the action initially appears to be the accuracy of the attachment, rather than the complicity of the named party. This would make the offence best explained as a deception, rather than a theft.
It is primarily this divided opinion over the appropriate operation of the ‘as good and as much’ proviso, in relation to intellectual property, that results in the disagreement about the extent to which economic copyrights are established by natural law, rather than by statutory provision. Thinkers within the same tradition as Gordon, therefore, are they who, I expect, shall benefit by discerning between the immediate argument (that proprietary components of copyright are necessarily non-natural), and the more central argument of the paper (that moral rights in particular are non-proprietary rights), as per note 1. Even if the proviso does allow for the provision of natural economic copyrights, this would not be incongruous with conceiving of moral rights as strictly natural, non-proprietary rights, on the basis that moral rights offences are deception offences.
‘First time’ is admittedly over-simplistic here, in that it fails to account for identical productions delivered through independent producers. For communicative clarity I have left aside complications regarding simultaneously or independently delivered identical productions—but a more nuanced definition would be informed by the proceeding discussions regarding embodied ideas compared with ideas ‘qua abstract propositions;’ and the differing degrees of reproducibility, and potential for independent reproducibility, between different kinds of objects.
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Acknowledgments
I would like to thank David Neil for his critical evaluation of this paper across several versions. I also owe thanks to two anonymous reviewers for their astute and productive comments.
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McKeahnie, J. ‘IP’ Moral Rights Breaches are Deception Offences, Not Property Offences: Correcting a Category Error. Res Publica 22, 193–207 (2016). https://doi.org/10.1007/s11158-015-9279-9
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DOI: https://doi.org/10.1007/s11158-015-9279-9