UBC Legal Counsel Responds to Moral Rights Question

[This is in response to my concerns about UBC's Moral Rights Waiver in publication agreements. See previous post here.]

Oct 26, 2015
From: Lai, Hubert

Dear Charles:

Thank you for your e-mail of September 7, 2015 expressing your concerns with regards to a moral rights clause contained in the BC Studies Manuscript Publishing Agreement.

As you know, UBC has provided you with an exemption from the moral rights clause, and I understand that BC Studies published your work in its October 30 issue.  In addition to providing this exemption, I would like to also respond to your request for an explanation as to why UBC includes a moral rights clause in its Manuscript Publishing Agreement template.

Moral rights are category of rights granted under the Canadian Copyright Act (RSC 1985, c. C-42).  Section 14.1 of the Copyright Act defines these rights (and the effect of a waiver) as follows:

Moral rights
        14.1 (1) The author of a work has, subject to section 28.2, the right to the integrity of the work and, in connection with an act mentioned in section 3, the right, where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous.
No assignment of moral rights
        (2) Moral rights may not be assigned but may be waived in whole or in part.
No waiver by assignment
        (3) An assignment of copyright in a work does not by that act alone constitute a waiver of any moral rights.
Effect of waiver
        (4) Where a waiver of any moral right is made in favour of an owner or a licensee of copyright, it may be invoked by any person authorized by the owner or licensee to use the work, unless there is an indication to the contrary in the waiver.

Moral rights protect the "integrity" or an author's work and the right "where reasonable in the circumstances" to be, or not be, associated with the work.  Under Section 28 of the Copyright Act an author may bring a claim for infringement of his or her moral rights. "Moral rights", in addition to copyright, are therefore a part of the bundle of intellectual property rights dealt with under the Canadian Copyright Act.

Publication of an author's work requires that UBC comply with the Copyright Act.  In particular, to publish a work, it is necessary for UBC's journals to obtain either an assignment or license of an author's copyright in the work.  However Section 14 of the Copyright Act makes it clear that such an assignment or license alone does not confer a right or license with regards to an author's moral rights.
 Without an express waiver of such moral rights, UBC's journals could therefore face the risk of possible legal claims for infringement of an author's moral rights.  For example, such claims could be alleged to arise from a journal's:

• ordinary editing of the author's (or authors') manuscript for publication;                     
• reformatting of the published work for publication in other media; or
• digesting or précising of the work for an index or for archival purposes.

Furthermore, it is also possible that an author's moral rights could be asserted to inhibit a journal's ability to publish a formal correction or retraction in connection with a previously published work. This could be of particular concern in cases where the published work has more than one author.

To avoid such disputes UBC’s journals include a waiver of moral rights in their publishing agreement templates. In doing so, UBC is not unusual, as many other publishers include similar wording in their publishing agreements. To balance these legal concerns against the concerns which you have raised, we have also maintained a policy of considering, on a case by case basis, exemptions from the moral rights clause.

Finally, I would like to emphasise that UBC and its journals are strongly committed to ensuring that authors are fully credited for their publications.  UBC recognizes that authorship is very important to the academic reputation of individuals who submit their work for publication and that correctly attributing authorship is essential to the scholarly process.  The inclusion of a moral rights clause in the publishing agreement template was never intended to detract from these principles. To affirm this we are reviewing the language in the publishing agreement template with a view to clarifying that the moral rights clause is not intended to diminish an author's right to be associated with their published work.

I hope that this letter provides you with a better understanding of the reasons for including the moral rights wording in UBC's journal publishing agreement.

Regards,

Hubert
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Hubert Lai, Q.C.
University Counsel
The University of British Columbia
6328 Memorial Road
Vancouver, British Columbia, V6T 1Z2
Tel: (604) 822-0687
Fax: (604) 822-8731
E-mail: hubert.lai@ubc.ca
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