The concept of copyright and author’s right in common law and civil law
By Dr. Ali Al-Fatlawi
16/10/2014
The intellectual property system is aimed at encouraging and protecting creation, innovation and the artistic activity generated by the human spirit .Copyright, also called author’s right or author law under French law (droit d’auteur ), is the legal framework provided to authors of literary and artistic creation, where there is the possibility of remuneration in exchange for their works.
In every judicial system, copyright is granted by the state in order to promote creativity, which transforms copyright into a legal tool to stimulate intellectual creation. To do so, the legislation on this matter has to have a dual purpose, in the sense that it must not sacrifice either the rights of the author or the rights of the public.
However, two main conceptions of copyright can be found respectively in the Anglo-American system and the continental system. The first is from the Anglo-American system and aims at protecting the work itself (real protection) in favour of the public and the second derives from the continental system (or civil system) and supports the protection of the author’s personality. The former approach, mainly found in common law countries, considers essentially the interests of the public, who pay the royalties and aims to protect the work and balances the interests primarily, rather than the author, and as a result the economic nature of copyright is accentuated. The latter tradition, present in France, gave birth to the moral right. The doctrine there contemplates the work as the continuity and the extension of the personality of its author and sees, consequently, the moral right as a safeguard of the cultural heritage.
While referring to the legal protection of a work, either “author’s right” or “copyright” are used. However, these two words cover different conceptions and philosophies. “Copyright” means the right to copy, to duplicate, that is to say a pecuniary and economic right and addresses the issue of protecting authors from plagiarists. In contrast, “author’s right” focuses on the intellectual performance exhibited by the author. Indeed, some creators consider the non-monetary rewards and recognition are more important than the immediate financial gain.
Both systems have their advantages and disadvantages. Copyright gives more weight to the users but the author’s right, through a stronger moral right, gives the author or the artist more control over the uses of their work. Thus, the author’s right approach focuses on the author, while copyright refers to a non-author’s right to copy a given work.
The stress on distinction between the two ideologies does not mean that copyright relies only on a purely economic basis and that the author’s right concept is based on a noble moral right philosophy. It is noted that the two systems are different concerning the legal tools implemented to give recognition to moral rights. Consequently, it is preferable not to over-emphasise the two concepts but to underline the differences and analyse the consequences thereof.
Copyright is today very controversial as it affects numerous areas and has increasingly become the target of cultural and “high tech” firms, which are users and creators of works.
Consequently, copyright has become a cultural and economic issue and the real problem is to find a balance where the rights of the authors and that of others are in harmony.
