The force of moral rights

The strength of moral rights in Dutch copyright law has in January 2017 been illustrated in two legal disputes concerning the renovation of architectural buildings.

The strength of moral rights in Dutch copyright law has in January 2017 been illustrated in two legal disputes concerning the renovation of architectural buildings.

Under Dutch copyright law the rights of the author do not consist only of exploitation rights but also moral rights. In the area of IP the concept of moral rights is the odd one out: moral rights cannot be transferred. Even if the author transfers the exploitation rights connected to the copyright, they remain the owner of the moral rights.

The assignee obtains the rights to make the work available to the public and to reproduce it, but does not have the right to amend the work. The author can waive his or her right to part of the moral rights, and these rights then become void. The right to oppose the amendment of the work is excluded and cannot be waived.

The author and their reputation are connected to the work. Moral rights provide the author with the opportunity to act against damage or any other impairment of the work which could be detrimental to the reputation or name of the author.

Case studies

In March this year the natural history museum in Leiden discovered the force of the moral rights of the architect. The museum wished to expand its current building and had already started the renovation of it. During the renovation the architect protested on the basis of his moral rights. Part of the building would no longer be used as an exhibition space but instead as an office and depot, with all the consequent changes to the architecture of the inside of the building.

The court sided with the architect, ordering the construction work to stop. The museum and the architect have settled the matter and the building is now under construction.

A similar case concerned the former headquarters of KPMG. The owner of the building wished to break down the facade of the office building and build a new one more in line with the new residential purpose. The architect protested against the planned changes to the building. The court found that it did not concern a change or impairment but total destruction.

 "When a building or its characteristic features are totally destroyed there can no longer be a connection between the non-existing work and the author."

The distinctive feature of the building was the facade, which was protected by copyright. It is precisely that element that would be completely destroyed. The overall impression of the work would be that of a completely new one. However, destruction of a work is exempted from the acts that the author can oppose on the ground of moral rights.

On appeal, the Amsterdam Court of Appeal weighed all the interests involved and ruled in favour of the owner. The six-year vacancy of the building was relevant.

At first sight these judgments seem irreconcilable. Closer scrutiny highlights the raison d’être of moral rights.

The reputation of the author is connected to the work. If a work is changed or impaired the reputation of the author will be connected to this impaired work. When a building or its characteristic features are totally destroyed there can no longer be a connection between the non-existing work and the author. Although destruction is a more invasive measure than changes to the features of the building, the impact on the reputation of the author is more limited.

Although in the first case a settlement meant the sledgehammer was not stopped by the moral rights, it could have been. The two cases are a good reminder of the force of moral rights. Even though the copyright has been transferred, complete control over the work cannot be transferred. Moral rights can be more powerful than the sledgehammer.

Michiel Rijsdijk is a partner at Arnold + Siedsma. He can be contacted at: mrijsdijk@arnold-siedsma.com