Originality in Context
29 Pages Posted: 1 May 2007 Last revised: 23 May 2012
The purpose of this Essay is to discuss whether moral rights should be accorded to a limited variety of authors. Even those who argue that moral rights protections in the United States are justified might still question whether they should be applicable to all types of "authored" works. International treaties that attempt to situate Intellectual Property rights within the discourse of human rights do not necessarily require a work to be copyrightable in order to be protected by moral rights. Still, in most if not all countries, moral rights protections attach to works that are subject to copyright protection. If we assume that copyright law, at least in the United States, sets a particular floor for the concept of originality, it would not make sense to discuss moral rights in conjunction with works that do not possess at least this minimal level of originality. On the other hand, just because a work is sufficiently original to obtain copyright protection does not mean that it automatically should receive the additional safeguards of moral rights. Sound reasons may support confining the application of moral rights to a smaller category of works than are covered by copyright law. Thus, this discussion asks whether, as a normative matter, moral rights should be applicable to a limited variety of works of authorship and if so, how the law can make viable distinctions.
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