Avoiding another Bonfire of the Vanities : the right to object to destruction under moral rights doctrine

• Main Author: Cheng-Davies, Tania
• Other Authors: Charlesworth, Andrew ; Plomer, Aurora
• Published: University of Bristol 2018
• Online Access: https://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.761122

At the heart of the research underpinning this thesis is the question of why moral rights doctrine in common law jurisdictions ignores the possibility of creators having a legitimate claim to protection when faced with the destruction of their creative works. It is a question rarely examined or analysed in depth by the courts or legal commentators. The thesis posits that this lacuna in the doctrine undermines its threefold role as protector of a creator’s personality rights, a buttress against the erosion of cultural heritage, and a counterbalance to the overtly utilitarian and commercial nature of the copyright regime in common law countries. The thesis also critically examines the standard arguments raised against the recognition of such a right for creators. In the process, the research engages with a variety of sources from without the common law, namely, the ontology of art, the Roman concept of Iniuria, and anthropological studies on the concept of honour: sources not previously examined and applied in the context of this question. The research question is examined in the context of the United Kingdom’s utilitarian copyright regime, whose weak moral rights doctrine arguably undermines the nation’s artistic and cultural heritage. Lessons are sought from an appraisal of the cultural settings and moral rights regimes in other common law countries: Singapore, US, Australia and India. The underlying interdisciplinary and comparative law methods employed in the research ultimately aim to construct a case for the United Kingdom to embrace a widening of its moral rights, allowing its creators to object to the destruction of their works.