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Part IV of the Copyright, Designs and Patents Act 1988 (CDPA) makes provision for the protection of moral rights, giving effect to Article 6 of the Berne Convention. This was the first statutory provision for moral rights that the UK government had enacted, which contrasts with some Continental countries, such as France, where the express protection of ‘droit moral’ has greater lineage. However, many would argue that the common law previously offered piecemeal protection to moral rights through, for example, contract law and the tort of defamation.

The existence of moral rights are dependant on the creation of copyright. Whereas copyright is an economic right, moral rights are seen as being linked inextricably to the personality of the author. Moral rights will only arise in relation to authorial works.

The UK’s approach to moral rights is, however, tentative. Theoretical approaches to copyright in the UK are rooted firmly in economic exploitation considerations. Copyright is a means to incentivise creative output through the potential of economic benefit. Copyright therefore protects the economic interests in a work. However, moral rights can in some circumstances be at odds with this theory (for example, where an artist alleges derogatory treatment due to a reduction in scale of his work so that it can be included in a publication).

This is arguably why, under the CDPA, the protection of moral rights is subject to notable limitation. All moral rights under the CDPA are hindered by a myriad of exceptions, are capable of being waived and, in the case of the right to paternity, require positive assertion for protection to be effected.

Furthermore, with regard to the right to object to derogatory treatment, the author must demonstrate “treatment” of the work that amounts to a “distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director” (section 80(2)(b)). In determining this, the courts have applied an objective test (as opposed to other countries, such as Canada, where the artist’s subjective opinion is taken into account). Accordingly, it is very difficult to demonstrate derogatory treatment. 

From the perspective of creators, whilst the express protection that the CDPA gives to moral rights is to be welcomed, it might be argued that this protection is not as comprehensive as on first glance it seems. It can be argues that greater protection of the personality rights of creators should be recognised.