A few days ago Don Martin, writing for the National Post, reported that a new copyright bill will be unveiled next week. As I went looking for more information, something else caught my eye. From James Adams, writing for the Globe and Mail, came this story, “College and sculptor resolve dispute over destroyed art.”
The family of Hadyn Davies has reached an agreement with Sarnia’s Lambton College of Applied Arts and Technology concerning the destruction of a work by Davies. His Stonehenge-inspired sculpture, Homage, was commissioned by the college in 1974, then destroyed by the college in 2005. The administration of the time stated that the sculpture had deteriorated to such a point that it was unsafe. Davies, who passed away in 2008, had filed suit claiming that the destruction was a violation of his moral rights and that the college had breached “…its obligation to maintain the work.”
What isn’t clear from the article is whether Davies had a separate contractual agreement with the college to maintain the sculpture, or whether the obligation mentioned is that as found under the condition of moral rights. At the time of the destruction, the Sarnia Observer wrote: “The artist owns copyright on work and has moral rights that prevent the work from being altered or mutilated in a way that would hurt the artist’s honour or reputation. Is destruction by backhoe not a mutilation?”
[Davies’ life story is interesting to read, see here. ]
I don’t think anyone could dispute that destruction by backhoe is a mutilation. The problem is that, technically, the destruction of the sculpture itself wasn’t a violation of moral rights. As indicated in the Observer story, the way moral rights have been written into law, the artist has to prove that their honour or reputation was damaged, before a claim of moral rights could succeed.
Infringement of Moral Rights, in particular the integrity right, is found in Section 28.2 of the Copyright Act / Loi sur le droit d’auteur:
The author’s right to the integrity of a work is infringed only if the work is, to the prejudice of the honour or reputation of the author,
(a) distorted, mutilated or otherwise modified; or
(b) used in association with a product, service, cause or institution.
Il n’y a violation du droit à l’intégrité que si l’oeuvre est, d’une manière préjudiciable à l’honneur ou à la réputation de l’auteur, déformée, mutilée ou autrement modifiée, ou utilisée en liaison avec un produit, une cause, un service ou une institution.
This places the burden of proof on the artist to show the loss of reputation. Not an easy thing to do, even for established artists. In Copyright Law (2000) David Vaver makes reference to a similar case in Quebec where artists’ claims were dismissed on the grounds that if their work was out of sight, their reputation could not have suffered (p.162).
A better coding of moral rights would be to follow a structure similar to fair dealing – where the onus is on the individual manipulating the work to do so in accordance with general guidelines that are respectful of both the work and the artist’s wishes. Moral rights are really about homage.