'IP' Moral Rights Breaches Are Deception Offences, Not Property Offences: Correcting a Category Error

1

‘IP’ moral rights breaches are deception offences, not

property offences: Correcting a category error

Introduction

Nature Publishing Group, responsible for the publication of Nature and Scientific

American, to name just two of its most prominent journals, attracted criticism in March

of 2014 in regard to changes it made to requirements enforced upon authors wishing to

publish in the organisation’s journals (Smith 2014). The controversy surrounded, at

least in significant part, the requirement for authors to forgo any moral rights (in

connection with copyright) that they might have in relation to their publishable work.

The relevant clause of their licensing agreement, in its original form, read:

7. The Author(s) hereby waive or agree not to assert (where such waiver is not

possible at law) any and all moral rights they may now or in the future hold

in connection with the Contribution and the Supplementary Information

(Macmillan Publishers Limited 2013).

In late 2014, presumably in response to the controversy, the clause was revised so as to

read:

2

7. The Author(s) grant NPG the perpetual right to edit, correct, or retract the

Contribution and Supplementary Information if NPG considers (in its

reasonable opinion) that such actions are required. The Author(s) hereby agree

that they shall not object to NPG carrying out any such actions (Macmillan

Publishers Limited 2014).

Although the explicit reference to ‘moral rights’ was removed, the revised clause

remains functionally equivalent to the previous version, in that it does not clearly alter

or reduce the demands made of authors. As explained in further detail below, moral

rights protect against the editing or alteration of a work where that alteration is not

conducted in consultation with, and finally approved by, the original author of the work.

This makes the premeditated non-assertion of the right to that process of consultation

and approval, through the pre-commitment to not object to edits and alterations made to

one’s work, functionally a waiver of one’s moral rights.

Such a requirement therefore raises significant questions about the nature of

moral rights, and points to a common category error that is made when moral rights are

conceived of as property rights. Moral rights are currently recognised as a component of

copyright law and are thereby legally understood to be intellectual property rights. My

purpose in this paper is to demonstrate that although moral rights intersect with

statutory property rights, they in themselves are natural, non-proprietary rights. Whereas

3

property rights are the domain of offences of theft, the claim advanced here is that moral

rights offences are acts of deception; specific subclasses of fraud.

This category error can be seen by considering the language of NPG’s original

licensing clause; the criticism it sparked; and the response to that criticism from NPG.

The clause can be seen to be making an incoherent request of its authors, being that the

truth of an author’s having authored a work is a natural artefact that cannot be modified

by fiat. It is incorrect to regard moral rights, which protect individuals against deceptive

practices, as rights that are alienable or can be waived. Although this is one important

consequence of correcting the category error observed, the NPG example is an instance

of a more widely pervasive, even systematic, misconception about the nature of

copyright. A category error is committed whenever copyright protections are presented

as either solely proprietary, or natural to the extent that they are proprietary.1 The

consequences of the category error, and the implications of recognising and correcting

it, hold material importance to a range of contemporary issues.

To develop this criticism of moral rights as property rights it is necessary to

retrace the fundamental justifications that we have for recognising property rights

1 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.

4

generally. For this I appeal to John Locke, for two related reasons. First, Lockean theory

has, historically, had an important influence on the property and case law (amongst

other law) of the United States. This foundational property law frequently forms the

basis of attempts to promote an expansive intellectual property regime, both

domestically within the United States as well as globally – where the United States also

aggressively pursues its IP agenda. Second, the way in which this expansionist agenda

is pursued typically involves the communication of a popular argument that asserts that

authors and inventors naturally deserve to be able to profit from the objects they create.

Although prominent public advocates of this claim rarely extend any deeper

philosophical basis for their reasoning, that basis is typically found in Locke. I call this

popular proposition the ‘naïve desert narrative.’ Whatever success Locke’s labour

centric theory has, in accounting for natural proprietorship over tangible objects, relies

on important assumptions and limiting conditions, of which I provide an account in the

next section. These prevent it from being extended to intangible objects. Modern

Lockean conceptions of copyright frequently fail to comprehend why this extension

cannot be made.

The labour-centrism ordinarily seen in Locke’s account is insufficient in

establishing natural property rights over intangible objects like ideas, but this is not to

leave property rights without a place in relation to intangible objects; nor is it to leave

natural rights without a place in relation to the possession of ideas. The provision of

5

socially beneficial statutory agreements that curtail the natural rights of members of a

state where doing so mutually advantages those members is both consistent with and

implied by Locke’s account. A Lockean can indeed justify the promotion of productive

activity through provisions of copyright, but requires something more involved than a

simple desert narrative.

While Locke’s explicit labour account cannot by itself justify natural property

rights, by contrast I argue that natural non-proprietary rights do follow on the basis of

the nature of labour and the role of production in social economic communities. The

kinds of natural rights this account delivers if it succeeds are of the sort ordinarily

recognised under the umbrella of moral rights. Moral rights include things like the right

to the correct attribution of one’s work; the right to fidelity during the copying of one’s

work; and the right not to have the work of others attributed incorrectly to oneself

(Berne Convention 1886, Article 6bis). These rights, although interacting importantly

with property, are not themselves property rights. This is most clearly seen in relation to

the right not to have the work of others attributed to oneself, as that is a right which a

person only asserts in regard to objects which are not their property. We do not have

property rights in relation to things we do not own.2

2 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,

6

The current indexing of moral rights under intellectual property rights, then, is a

category error. Moreover, property rights by definition are transferrable, and anyone

with a claim to them may rightly choose not to assert them. By contrast, not only are

moral rights not property rights, but by their nature they cannot be rightly transferred or

waived. For example, while the author of a book reserves the ability to sell the right to

profit from the reproduction of that book, they cannot sell the right to be recognised as

the author of the work. Not only would the introduction of the statutory ability to sell

the right to recognition not provide any social benefit, it could never actually be

effectual without persistent deception anyway. As soon as the identity of the natural

author was discovered, the legally stipulated recognition, acknowledged to be ‘owned’

by a purchaser, would be meaningless.

Inappropriateness of intellectual labour

Given that Locke’s traditional account of physical property is built around a

concept of physical labour, it might be thought that an adequate way of extending the

account to accommodate intangible objects like ideas would be to provide an account of

intellectual labour. It seems prima facie intuitive that if it is the case that people deserve

to enjoy property in tangible objects which they have laboured to extract from the

rather than the complicity of the named party. This would make the offence best explained as a deception,

rather than a theft.

7

commons, then it is also plausible that they deserve property in ideas they labour to

develop. This view is mistaken, however, at least insofar as the desert is thought to

extend to what modern proponents of copyright expansion intend their envisaged

regimes to protect. An attempt to construct an account of intellectual labour that

parallels Locke’s physical labour account reveals that it cannot succeed. The obstacle to

such an account is the Lockean ‘as good and as much’ proviso (Locke 1947, pp. 137-

138), as is widely acknowledged throughout the intellectual property literature. A

prominent account of the impact of the proviso is given by Gordon (1993). Gordon,

who does defend a limited natural rights account for the justification of economic

copyrights, identifies the proviso as a factor that requires those rights be tightly

prescribed to specific circumstances, with limits on duration and concessions readily

made to competing public rights.3

Critical to the Lockean account is the fact that the tangible objects that are initially

located in the pre-statutory commons are exhaustible. Once a person has, say, removed

an acorn and digested it, it has thereby served the project one individual had for it and

cannot subsequently be put towards any other. This means that, in order to make

3 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.

8

rational the labour act that is required to make the common object useful, a labourer

must have confidence that they will be able to direct it towards the fulfilment of their

own projects, and that no one else shall misappropriate it for their own purposes. The

corresponding obligations this entails are that one must not take more from the

commons than one’s projects demand, and that one must leave in the commons objects

of quantity and quality sufficient to ensure that others have an equitable opportunity to

advance their own projects too (Locke 1947, pp.137-138). Therefore, while one might

defensibly take an acorn from a forest, one could not defensibly remove all the acorns

from that forest.

The exclusive right to the use of an object – that is, the proprietary right over it – is

defensible only in light of its exhaustible usefulness, and this presents a critical problem

for any attempt to secure the same rights in relation to ideas. Ideational objects of the

kind that are presently protected under intellectual property regimes are not naturally

exhaustible. A designer’s ability to employ his or her design in the pursuit of his or her

own projects is in no way compromised by my simultaneous employment of the design

towards my own projects. Unlike the acorn, it can serve both our ends.

Frequently, however, people are not in a position where they can pragmatically

isolate the kinds of designs that are useful to their own projects, and the only people

who do have the means to isolate those designs stand to gain little through the use of

them personally – unless, that is, the possibility of making them saleable is opened up to

9

them. To incentivise the isolation of socially beneficial designs, then, the members of a

society may reach statutory arrangements that establish functional proprietary rights in

these kinds of objects. Importantly, though, these are not natural rights, and are only

justified on the basis of concerns for social benefit. On a conventional account that

recognises natural intellectual property rights (like the natural desert account), the

purpose of enacting statutory property rights could be understood as selflessly limiting

natural rights to certain terms (hence the duration limitations on copyright and patents)

in the interest of social benefit. On the account I present, however, the statutory law is

the only source of those rights in the first place, and the limited terms of protection are

necessitated by the answerability of the legislation to social utility.

‘Production’ and ‘Reproduction’

It would nevertheless be too quick to say there are no natural rights that creators are

entitled to when it comes to the things they create. On the contrary, such natural rights

do exist – but they are not property rights. To explain these rights, and to justify their

recognition, one must consider two notions that play a central, albeit implicit, role in

Locke’s account of property: production and reproduction. In this section I explain these

terms and show how they are able to help recast the comparative qualities of Locke’s

account and those of the naïve desert narrative.

10

Productions here is a portmanteau term referring to original creations of a sort that

are variously classified across a myriad of fields, depending on the type of the

production: inventions, literature, artwork, music, and so on. These are instances of

(intangible) intellectual content – particular arrangements of ideas and thoughts – that

are generated and then applied for the first time.4 Producers of these objects enjoy a

similarly diverse array of titles: e.g. inventors, designers, authors, composers and artists.

In more quotidian examples of production, however, a producer may receive no specific

honorific descriptor.

Reproductions are any instances of the application or embodiment of the

intellectual content that are generated subsequent to the original production. For

example, I own a reproduction of Tolstoy’s War and Peace, published in London by

Random House. It is heavy and thick, and I can hold it in my hands – and it is my

property. Also counted amongst my property is a reproduction of one of Sony

Corporation’s smartphones, manufactured by Sony or under contract to Sony. These

reproductions are proprietarily my own, but are naturally described as Tolstoy’s and

Sony’s. This attribution persists because the objects reproduce intellectual content that

was originally produced by Tolstoy and Sony.

4 ‘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.

11

With this terminology it is possible to explain why Locke’s account only evinces

that natural proprieties exist over specific physical objects, whereas the intellectual

content that informs reproductions cannot justifiably be treated as natural property.

Some straightforward examples are able to bring out this fact. Take Locke’s traditional

case of an individual who picks acorns from trees for later eating. Through this picking,

by the metaphorical ‘mixing’ of her labour, the acorns have been made useful; turned

into a convenience for her to consume at any time. Similarly, under the pre-statutory

state of nature, a person may use wood they have rightfully removed from its position

within the commons to construct a novel tool, such as a wheelbarrow. In both of these

instances Locke is standardly understood to be concerned with the right to own physical

objects: a collection of acorns or a particular assemblage of wood. And indeed, it is

these physical things, for Locke, over which labour justifies ownership.

It is also this pre-eminence of the physical, however, that leads to a false distinction

between physical and intellectual labour; around which the naïve desert account is built.

The desert picture seems initially appealing because if Locke’s account delivers

proprietorship over physical objects via a corresponding type of labour, then ostensibly

what is required to deliver intellectual property stands to be intellectual labour. But this

is to lose sight of the fact that Locke’s conception of labour already assumes labour is

necessarily an intellectual exercise: a labour act is an act intended to bring about a pre-

conceived future state of affairs, such as the possession of something of value. The

12

motivation of the naïve desert account is to deliver natural proprietorship over ideas, but

it must be the case that physically acting upon an object in order to secure it as property

– as in the picking of acorns or the building of wheelbarrows – is done with an idea of

that process and its rewards held in mind. Therefore, without the pairing of a relevant

propositional attitude to the act the causal link between a physical exertion and an

object’s altered state is not enough to establish property rights over the object. A tree

climber who inadvertently and unknowingly shakes acorns free from the branches

during their ascent would not come to have property rights over those acorns.

Properly understood, then, a Lockean account not only does not justify natural

intellectual property, but is actually incompatible with an account of natural intellectual

property. If ideas were natural objects of property, then the fact that picking acorns is

predicated on the idea of picking acorns would mean that by arriving at (or at least

acting upon) the idea of picking acorns, one would prevent peers from being able to

justifiably pick acorns, for that would require them to make unpermitted use of

another’s property (the idea to pick acorns). The first person to pick an acorn, then,

would functionally be removing every acorn, not just the one, from the commons.

It can only reasonably be construed that Locke intends only for individual acorns

and individual wheelbarrows to be naturally appropriated as property. Each newly

useful acorn and each newly constructed barrow is a reproduction of the original

application of the intellectual content pick an acorn and build a wheelbarrow,

13

respectively. The intellectual content applied in developing them is not exhaustible,

which is precisely what makes reproductions possible, and so securing a creator’s

access to their ideas is not predicated on precluding others from access. It is the natural

scarcity that arises from this exhaustibility that provides the natural justification for the

provision of proprietary exclusivity over physical reproductions. Although the

intellectual content of ideas does not have this exhaustibility, statutory property rights

may justifiably be introduced via social contract to generate for it an artificial scarcity

(e.g. through copyright and patent monopolies) where doing so is expected to be

socially beneficial. In addition, however, other social implications that arise in light of

the nature of production and reproduction (that are independent of matters of

exhaustibility and scarcity) require the recognition of a set of rights (that, as is shown,

are non-proprietary). These are properly understood as ‘moral rights.’

The social importance of production

The social role of production and reproduction is central in human development and

flourishing. This is the basic fact that underlies the standard justification of statutory

intellectual property protections, for this justification in effect points out the centrality

of production and reproduction and identifies a range of instances where it is not

naturally able to occur. The production-reproduction process is straightforward enough

14

and simple to understand economically, but the same phenomena also has a particular

social aspect that is important enough in its own right to mean that natural moral rights

come to arise. Here, it is valuable to consider a distinction between the different ways in

which we use terms that describe the intellectual content of productions, such as

‘thoughts’ and ‘ideas.’ Sometimes we discuss an item of intellectual content as being a

particular characteristic of one person’s mind, whereas at other times we describe an

item of intellectual content as though it is something common and accessible to multiple

people. Hugh Breakey (2009, p. 330) points out, for instance, that one person may have

the idea that the sun is shining, and yet another person could ordinarily be said to have

the same idea:

On the one hand, ideas are something very personal, embodied within particular

minds. If I have the idea, ‘the sun is shining’, that is my idea in so far as it is a

property, in some sense, of my mind. On the other hand, it is quite meaningful

to say that you have just the same idea as I do, as might occur if you too believe

that ‘the sun is shining.’

I take Breakey’s particularly-embodied ideas to be possessed ideas, held as a

specific instance of a potential idea ‘qua abstract proposition’ (Breakey 2009, p.331)

that may be independently accessible to others. Because they are the kind I am here

15

most concerned with, however, I will use the terms such as ideas and thoughts to mean

possessed ideas and possessed thoughts.

In view of the fact that we possess thoughts and ideas as specific instantiations

of common notions that could potentially be, or could potentially come to be, arrived at

by others, consider a novel such as Tolstoy’s War and Peace. This is a book that seems

intrinsically linked to its author, such that it is practically impossible to imagine that

anyone other than Tolstoy could have written it. This kind of object can be contrasted

with objects that, while they may be attributable to a particular individual creator, could

feasibly have been created by somebody else. An example of this second class is a

telephone.

It is quite reasonable to accept that in a counterfactual world in which Bell had

never existed, a machine functionally equivalent to Bell’s telephone would predictably

have been produced, in time, by somebody else. By contrast, it is difficult if not

impossible to imagine that, had Tolstoy died in infancy, War and Peace would ever

have entered the public sphere. He was not merely ‘the first’ to pen the book, and his

premature death would not have just delayed its publication by fifty; one hundred; five

hundred years. Tolstoy was the only person through whom a society could come to

enjoy War and Peace, and without him it simply would never have existed. Another

way of expressing this is to say that, where it perhaps makes intuitive sense to talk of

Bell’s experiences leading up to the invention of the telephone as experiences ‘qua

16

abstract possibilities,’ into which he was the first to stumble, Tolstoy’s particular

experiences were so personal and particular to his individual, and so necessarily

formative to the object War and Peace, that it is absurd to discuss them as though they

could ever have been encountered by another person. Although it may not be a strict

logical impossibility that someone else could have independently produced a work

identical to War and Peace, earnestly suggesting that we could have expected it to be

so would be as absurd as sincerely tabling the suggestion of infinite monkeys with

typewriters as a counterfactual means of its production.

This is significant due to the social function of original intellectual content.

Oftentimes the intellectual content of a production is very difficult to deliver, either

occurring through a situational happenstance that evokes an improbable epiphany – as

in the recognition of the beneficial properties of penicillin – or through a concerted

concentration of intellectual energy to the development of nascent ideas into eventual

useful content (which is often thought of as ‘intellectual labouring,’ despite this being

misleading given that all labour has an intellectual component, as previously shown).

Once this intellectual content is applied or embodied for the first time, however (that is,

when it is presented as a production), it subsequently becomes much easier for others to

arrive at and apply in new instances. Such a ‘breakthrough’ production therefore holds

to its possessor not only the same primary value as that which a subsequent

reproduction holds to its possessor, but it also holds a high social value as the very

17

source of subsequent reproductions. It is in large part via the mutual exploitation of one

another’s productions (for the purposes of generating reproductions) that a society

flourishes – each individual shares in a vastly greater number of valuable reproductions

than they could ever have independently produced.

The false reduction of deception to theft

An essential role of statutory property law is to solve free-rider problems. The

economic implications of the social value of production are quite straightforward and

well documented: the heavily concentrated individual investment by a single producer

ultimately provides a dispersed advantage that reaches subsequent reproducers who

were uninvolved in the initial investment, resulting in a disincentive to undertake

investments that stand to return exceptional social value. This gives rise to social utility

arguments for the introduction of statutory property rights like copyright and patent.

But one consequence of the implementation of these statutory responses to free-

rider problems (as under copyright and patent) is the motivation some individuals

develop to falsify claims of being the producer of one of these breakthrough

productions. Given that those recognised as producers are subsequently afforded the

opportunity to exercise those corresponding statutory property rights, such a false claim

would deny the true producer the ability to exploit those rights, and this gives the

18

offence the guise of being a property offence: theft. This categorisation is mistaken,

however, and the mistake that is made in this instance is one that lies at the heart of the

broader error made in the categorising of moral rights breaches as property offences.

This section provides an explanation of why this conception is erroneous, as well as

why the error is easily made.

It is true that a (statutory) property offence occurs in the type of situation just

described, so long as a framework of statutory law is in place that makes reproduction

unlawful without the prior consent of the original producer. But it is also indisputable

that the property offence committed, being based on the false claim of production, is

facilitated by a deception. Moreover, this deception constitutes an offence prior to, and

independent of, the property offence. This is not always obvious, and where the final

consequence of the deception is economic in nature the distinction may ultimately seem

trivial, which makes the conflation of the deception and the property offence natural.

However, this conflation has harmful social consequences. A range of these can be

evidenced through the consideration of three closely related instances of deception:

1) equivalent instances of deception after the expiration of statutory

protections, under modern standards;

2) equivalent instances of deception where statutory property provisions were

never in place; and

19

3) equivalent instances of deception in which any non-proprietary ends are

facilitated.

These are so closely related because instances of deception after the expiration of

statutory protections are functionally equivalent to deceptions where those protections

were never in place at all, and both of those are instances involving deception that

facilitates an end that is necessarily non-proprietary in nature. Each is nevertheless

worth considering in turn.

An example of the kind of deception for the facilitation of statutory theft would

be where a person copies the text of a book and sells reproductions of it whilst claiming

to be the author. Ordinarily this would be done to profit where statutory copyright law

reserves the ability to do so for someone else – the actual author. But copyright is

limited to a fixed term, after which a text enters the public domain and can be

reproduced freely. Suppose, then, that an individual rediscovers a long lost and

forgotten, yet literarily important, piece of writing – perhaps a lost work of Tolstoy’s.

Further suppose that the finder of this text transcribes it and reproduces it, claims to be

the original author, and distributes the copies; they even do this without monetary

return, absorbing the reproduction and distribution costs at a personal financial loss.

Having been published so long ago, the lost text would no longer be protected by

property law as the law exists today. Even if it was, the reproducer would be

20

demonstrating no economic motivation for the deception. This deception would still be

an offence against Tolstoy, and all readers.

Additionally, we might imagine a jurisdiction in which there was no legal

prohibition against third-party reproduction of a living author’s work. In this case no

property offence could be located in such reproduction, yet the act of dishonestly

presenting them as one’s own productions rather than as reproductions would still be

objectionable. In such a case we see clearly that the objectionableness arises from a

non-proprietary fact.

The deception also does not transition into a property offence simply due to the

introduction of statutory property protections. Within the current statutory environment

a number of deception cases of this kind are routinely dealt with outside of the property-

centric mechanisms of copyright law. There are two major, antecedent classes of such

misrepresentations: plagiarism and forgery. Plagiarism occurs whenever an offender

claims to be the producer of something to which they are only a reproducer; while

forgery occurs whenever an offender claims that something they produced was actually

produced by someone else.

As an example of such a deception that is not ordinarily penalised via the

mechanisms of property law, consider an act of academic plagiarism at the

undergraduate level: a student reproduces the essay of another person, attempting to

present it as their own production in order to satisfy an assessment requirement and in

21

turn receive a qualification. Such an offence is considered by universities to be serious

misconduct, bearing severe penalties. However it is rarely dealt with in the manner of a

property offence. This is notably dissimilar to the quite comparable example of collegial

reproduction within a university, whereby a member of staff reproduces a marketable

object that a colleague has developed, and represents it as their own invention; one

would certainly expect this to be addressed as a property offence. This dissimilarity is a

pragmatic rather than ideological one, and can be explained because in the former case

there is rarely any economic interest, on the part of the actual author or the institution,

compromised in the deceptive copying. While a case can certainly be made for the fact

that the author is in some way harmed – and it seems right that the author should have

the option to initiate action against the undergraduate plagiarism of their work – it must

be a harm affecting something like their reputation or agency, rather than their property.

Indeed, the institution conferring the qualification (which is the direct target of the

deception), and the general public that would subsequently recognise the degree as

legitimate (who would thereby be deceived in turn), are perhaps more clearly

identifiable victims of the offence. This is why the initiation of proceedings against

undergraduate plagiarists, although they could potentially be initiated by the original

author, are ordinarily initiated by the institutions themselves, and are (rightly) not

contingent on the participation of the original author at all.

22

Additional evidence for the proper categorisation of moral rights is found in

considering instances of unauthorised literary reproduction that avoid being plagiaristic.

So long as the reproduction is not performed deceptively, and is incorporated into some

ultimately new, genuine production, a comparable act that would otherwise be

plagiarism ceases to be so. Partial copying is common, and indeed institutionalised,

within academic writing. It is institutionalised by systems of referencing, which are

employed specifically to differentiate what parts of a text reflect innovative production

on the part of an author, as separate from parts that reflect only what they have

derivatively reproduced (either directly or in paraphrase) from the productions of

somebody else. Where, in discussing Lockean theory, I might quote a passage originally

written by Locke, I properly use citation to designate those words as a reproduction,

separate from the content originating as a production of my own intellect. If such a

reproduction was a property offence, as in a theft, then it would not become acceptable

on account of one’s acknowledgement of their action. Instead, the acknowledgement

absolves a reproducer of wrongdoing because it is misrepresentation of the reproduction

as production, rather than the act of reproduction per se, that constitutes the offence in

question. This offence can occur in addition to, and even facilitate, a property crime like

theft, but it cannot be logically reduced to or conflated with it.

23

Deception offences are natural offences

It is clear, then, that the misrepresentation of the nature of an object’s

production, by misattributing it (or any of the changes made to it) to a false producer,

are the sorts of offences that authors and artists are protected against under moral rights

legislation. The right to have one’s name attributed to one’s work is not a right to

exclude others from reproducing one’s productions, but a right to the assurance that

those reproductions will be presented as reproductions, and not as the original

productions of anyone else; it is a protection against plagiarism. The right not to have

one’s name attributed to work that is not one’s own is an antecedent assurance against

fraudulent misrepresentations of productions as containing one’s intellectual content

when it does not; a protection against forgery.

The fundamental consequence that makes correcting the erroneous

categorisation of moral rights offences as property offences is the generation of a

particular confusion as to the natural status of these offences, as well as the rights

afforded against them. Because property rights are routinely natural, but can be made

via statute; and because moral rights intersect so intimately with property rights,

specifically when they are statutory, it might initially seem tempting to think that moral

rights must (if not necessarily, then at least permissibly) be conceived of as statutorily

derived and amenable. By contrast, when one understands moral rights offences to be

deception offences, the fact that moral rights are inappropriate objects for statutory

24

amendment or limitation becomes clear. This importantly informs the way we must treat

moral rights.

A defining feature of property rights, whether they are natural or statutory, is

that they are transferrable. Under ordinary circumstances the owner of property, alone,

has the right to enforce or waive their claim to exclusivity. They may also sell or gift

what they own, which is another way of describing the transferral of property rights

from one individual to another. Being individualistic rights, owners also have the sole

ability to seek prosecution for, or forgive, past trespasses against their property rights.

This is very different to the way in which moral rights ought to be treated.

Once again, revisiting an act of plagiarism highlights the social, rather than

purely individualistic, nature of a moral rights offence. The undergraduate student who

plagiarises a former student’s work is not relieved of their culpability by obtaining the

permission of the former student. Instead, the former student would become complicit

to a fraud. The student who produced the work, and has the right to have his or her

name attributed to it, is not naturally afforded the ability to transfer that right to others.

The same is true in cases of forgery. If one attempts to artificially inflate the price of an

artwork one produces, by attributing it as the production of a famous contemporary

artist, then this deception is not an offence that the famous artist is given the power to

excuse. Not only are moral rights limited in this way at the level of natural law, but, as

the same case demonstrates, moral rights holders are unable to be effectively provided

25

these powers of transferability; waiver; or forgiveness, via fiat. Even if the

transferability of attribution was recognised at law, through statutory provision, the

forger’s plan to artificially inflate the price of an artwork would continue to rely on

deception. As soon as the statutory arrangement was divulged publically, the legal fact

of the artwork’s attribution would cease to bear on its value. The value would continue

to be determined by the natural fact of the artwork’s attribution, which the legal

provisions would be absolutely unable to alter. The effect of the provisions would

merely be, then, to protect ‘permitted’ forgers and plagiarists against prosecution for

their deceptions – but these would continue to impart the same social consequences as

always.

NPG’s response

The imperative of protecting against deception is emphasised in NPG’s response

to the criticism their publishing clause evoked, as well as in their ordinary daily

publishing procedure. I therefore return to their case for the purpose of concluding. The

group’s response to the controversy addressed truth and deception in two ways. First,

they advanced a negative account intended to reassure against the possibility that they

might abuse the waiver they required by perpetrating the kinds of fraudulent deceptions

previously identified. Second, they advance a positive account of the way in which they

26

suppose the original waiver facilitated their ability to protect their audiences from

deception.

NPG’s response to the controversy was delivered via a blog post. This

communication was used to emphasise NPG’s commitment to accuracy and

transparency in attribution of works, explaining that they ‘always attribute articles to

authors’ and ‘believe researchers should always be credited for their work,’ as well as

citing efforts the group has made to ‘foster disambiguated accreditation’ (Baynes 2014).

This is heavily geared towards reassuring authors of the maintenance of their individual

interests. The statement made seems sincere; it ought not to be thought that NPG

harbours any interest in defrauding its contributors. But the fact still stands that, if the

clause is taken to have legal traction, and NPG did decide to offend against their authors

in this way, the publisher would have impunity against legal repercussion. Further, it

should be remembered that their ability to do so would be predicated on the persistent

denial of the activity. While NPG may not present a realistic threat to authors’ interests,

legitimising such scenarios by legally treating moral rights in the manner of property

rights opens the avenue to eventual abuses of this kind by one party or another. To

warrant such legitimisation, a strong case for the social benefit of such a treatment

would be required.

27

NPG’s response supposed that a public benefit was indeed served by the waiver

of moral rights. They suggested that this benefit would be realised in extreme cases of

disagreement between the authors of co-authored submissions:

We take seriously our responsibility towards the integrity of the scientific

record. The “moral rights” language included in our license to publish is there to

ensure that the journal and its publisher are free to publish formal corrections or

retractions of articles where the integrity of the scientific record may be

compromised by the disagreement of authors. This is not our preferred approach

to dealing with corrections and retractions, and we work with authors and

institutions to try seek consensus first. The right against derogatory treatment is

a key aspect of moral rights (Baynes 2014).

This claim again emphasises an intended commitment to accuracy and truthfulness. The

suggestion that if, after publication, two authors of a co-authored text come to disagree

about the accuracy of the results – or if journal staff come to regard the contents as

inaccurate – then reserving the ability to bypass contributors’ moral rights would enable

the journal staff to issue corrections or clarifications that better serve the scientific

record. This proposed function of the waiver (which evidently influenced the language

employed in revising it) is clearly socially directed, as the integrity of the scientific

record is not merely a matter of interest to the authors who contribute to it, but

28

something that affects NPG’s audience, the broader scientific community, and

ultimately society generally – closely akin to the consequences of plagiarism.

Such a waiver is not necessary in preserving the integrity of the scientific record,

however. Not only is the use of this avenue less than preferable, as NPG concedes, it is

detrimental. The preferred method of resolving disputes is outlined in NPG’s

requirement that contributing authors inform the journal of any corrections they believe

need to be made, with the insistence that corrections to co-authored articles be

accompanied by the written consent of all contributors. In cases of author

disagreements, the coordinating author must also deliver copies of correspondence

between themselves and the dissenting authors (Nature Publishing Group 2014). This

procedure recognises and reinforces the importance of accurately maintaining

attribution of contributions to the scientific record. Even where an editor decides,

against the opinion of the original contributors, that a redaction or correction is

appropriate, it should be simple to explain that the correction ought to be attributed to

someone other than the original contributors, and we ought to expect that explanation to

be made. Neither the integrity of the scientific record, nor the interests of the society

that it serves, are advantaged through the inaccurate attribution of scientific statements

or retractions.

The incorrect treatment of moral rights as property rights is pervasive, and the fact

that it is erroneous is infrequently recognised. Despite the unobvious nature of the

29

mistake, its consequences are not benign – as the example of Nature Publishing Group

demonstrates. Property rights are, by definition, transferrable and can be waived. This is

sensible because the harm caused by a property offence, such as in the case of theft, is

typically inflicted only upon the rights-holder. Moral rights, however, protect against

inaccuracy in the attribution of products to their producers. Offences against them

therefore take the form of fraud, which has negative social consequences even in

instances where the person most identifiable as the rights-holder is not harmed. As such,

moral rights cannot defensibly be regarded as transferrable or able to be waived. They

must also, on account of the function they have of preserving truth and accuracy in

claims made about productions, be recognised as natural rights that cannot appropriately

be modified by statutory provisions.

References

Baynes, G. 2014. Clarifying NPG’s views on moral rights and institutional open access

mandates. Of schemes and memes.

http://blogs.nature.com/ofschemesandmemes/2014/03/28/clarifying-npgs-views-on-

moral-rights-and-institutional-open-access-mandates. Accessed 22 July 2014.

30

Berne convention for the protection of literary and artistic works (1886), Opened for

signature Sept. 9, 1886, as revised at Paris on July 24, 1971 and amended in 1979. S.

Treaty Doc. No. 99-27.

Breakey, Hugh. 2009. Liberalism and intellectual property rights. Politics, Philosophy

& Economics 8(3): 329–349.

Gordon, Wendy. 1993. A property right in self-expression: Equality and individualism

in the natural law of intellectual property. Yale Law Journal 102: 1533–1609.

Locke, John. 1947. Two treatises of government. New York: Hafner Publishing

Company.

Macmillan Publishers Limited. 2013. Licence to publish.

http://www.nature.com/licenceforms/npg/mpl-ltp.pdf. Accessed 22 July 2014.

Macmillan Publishers Limited. 2014. Licence to publish.

http://www.nature.com/licenceforms/npg/mpl-ltp.pdf. Accessed 19 February 2015.

31

Nature Publishing Group. 2014. Authorship.

http://www.nature.com/authors/policies/authorship.html. Accessed 22 July 2014.

Smith, K. 2014. Attacking academic values. Scholarly communications @ Duke.

http://blogs.library.duke.edu/scholcomm/2014/03/27/attacking-academic-values.

Accessed 22 July 2014.