Journal articles on the topic 'Moral rights in law'
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1
Cruft, Rowan. "Human Rights Law Without Natural Moral Rights." Ethics & International Affairs 29, no. 2 (2015): 223–32. http://dx.doi.org/10.1017/s0892679415000088.
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In this latest work by one of our leading political and legal philosophers, Allen Buchanan outlines a novel framework for assessing the system of international human rights law—the system that he takes to be the heart of modern human rights practice. Buchanan does not offer a full justification for the current system, but rather aims “to make a strong prima facie case that the existing system as a whole has what it takes to warrant our support of it on moral grounds, even if some aspects of it are defective and should be the object of serious efforts at improvement” (p. 173).
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Puspasari, Anastasia Theresia. "Tinjauan Konsep Hak Eksklusif dalam Hak Cipta Berdasarkan Teori Hegel." Dialogia Iuridica 13, no. 2 (April 28, 2022): 140–61. http://dx.doi.org/10.28932/di.v13i2.4577.
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Copyright is a protection in a form of an exclusive right which is attached with the creator, including moral rights which are possessed by the creator for the embodiment for their personality in the creation. The referred moral rights are recognized in the international treaties, specifically in Berne Convention and TRIPS Agreement, which put forward the moral rights as a copyright protection. The protection of moral rights evolved from the Continental Europe countries, which recognizes author’s rights. The principle of moral rights could be analyzed with Hegel’s theory from the writing in his book entitled “Philosophy of Rights”, postulating the principle of how a person could claim his right of property possessions. In accordance with Hegel’s theory, this research will be focused on the scope of copyright as an exclusive right, which will also analyze the copyright law of Indonesia regulated in Law Number 28/2014. The copyright protection regarding moral rights in Law Number 28/2014 principally regulates the right given to the creator to signify their identities in their creation or to claim for their creation which adheres with their personalities. Moral rights are also given to performers in the form of related rights, as a right for the performers to claim the performance of the creation.
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Pasternak, Avia. "From Corporate Moral Agency to Corporate Moral Rights." Law & Ethics of Human Rights 11, no. 1 (May 8, 2017): 135–59. http://dx.doi.org/10.1515/lehr-2017-0003.
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Abstract Recent literature suggests that organizational entities, such as states and business corporations, can qualify as moral agents. Does it follow that, as members of our moral community, group agents are entitled to moral protections? This article explores the connection between groups’ moral agency and moral rights. I argue that corporate moral agency does not, in itself, ground a group’s claim for moral protections. Nevertheless, a group agent can be entitled to derivative moral rights protections, which attach to the group itself but are grounded in the interests of individuals, such as the group’s members. Furthermore, the agential status of a group helps to identify which rights can attach to it, given its moral agency. One such moral agency related right is a right not to be morally subverted. This right generates a duty for the group agent’s members to ensure that its decision-making process incorporates sound moral reasoning. The final part of the article applies these conclusions to recent debates on the rights of states. I argue that, as moral agents, states have a moral right not to be morally subverted. It follows that citizens have a pro tanto duty, directed at their state, not to engage in political activities that would subvert its moral powers.
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Gewirth, Alan. "Moral Foundations of Civil Rights Law." Modern Schoolman 64, no. 4 (1987): 235–55. http://dx.doi.org/10.5840/schoolman198764458.
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Gewirth, Alan. "Moral Foundations of Civil Rights Law." Journal of Law and Religion 5, no. 1 (1987): 125. http://dx.doi.org/10.2307/1051021.
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Cappelen, Alexander W. "The Moral Rationale for International Fiscal Law." Ethics & International Affairs 15, no. 1 (March 2001): 97–110. http://dx.doi.org/10.1111/j.1747-7093.2001.tb00346.x.
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A country's right to levy taxes is a fundamental aspect of its sovereignty. Without the power to tax, a government would be unable to redistribute resources among its citizens and provide public goods. The question of how tax rights should be distributed is therefore one of the oldest and most important problems of tax theory. Increased international economic integration has made this question even more important, as a larger share of economic transactions take place across national borders, giving rise to situations in which more than one country is able to tax the same base.How such conflicts are resolved affects both the ability of countries to redistribute resources domestically and the international distribution of tax revenues. The allocation of tax rights therefore raises important questions of distributive justice, questions that require a normative theory of the right to tax. This essay seeks to evaluate the current distribution of tax rights by examining whether it can in fact be justified within the main approaches to distributive justice.
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Zysset, Alain. "Human rights: moral or political?" Jurisprudence 10, no. 2 (February 18, 2019): 281–88. http://dx.doi.org/10.1080/20403313.2019.1575617.
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Masiyakurima, Patrick. "The Trouble with Moral Rights." Modern Law Review 68, no. 3 (May 2005): 411–34. http://dx.doi.org/10.1111/j.1468-2230.2005.00544.x.
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Sundara Rajan, Mira T. "Moral rights: the future of copyright law?" Journal of Intellectual Property Law & Practice 14, no. 4 (January 31, 2019): 257–58. http://dx.doi.org/10.1093/jiplp/jpz008.
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Sorial, Sarah. "Law, Cosmopolitan Law and the Protection of Human Rights." Journal of International Political Theory 4, no. 2 (October 2008): 241–64. http://dx.doi.org/10.3366/e1755088208000232.
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In Between Facts and Norms, Habermas articulates a system of rights, including human rights, within the democratic constitutional state. For Habermas, while human rights, like other subjective rights have moral content, they do not structurally belong to a moral system; nor should they be grounded in one. Instead, human rights belong to a positive and coercive legal order upon which individuals can make actionable legal claims. Habermas extends this argument to include international human rights, which are realised within the context of a cosmopolitan legal order. The aim of this paper is to assess the relevance of law as a mechanism for securing human rights protection. I argue that positive law does make a material difference to securing individual human rights and to cultivating and augmenting a general rights culture both nationally and globally. I suggest that Habermas' model of law presents the most viable way of negotiating the tensions that human rights discourse gives rise to: the tensions between morality and law, between legality and politics, and between the national and international contexts of human rights protection.
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Perry, Michael J. "FREEDOM OF CONSCIENCE AS RELIGIOUS AND MORAL FREEDOM." Journal of Law and Religion 29, no. 1 (January 3, 2014): 124–41. http://dx.doi.org/10.1017/jlr.2013.1.
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AbstractIn another essay being published contemporaneously with this one, I have explained that as the concept “human right” is understood both in the Universal Declaration of Human Rights and in all the various international human rights treaties that have followed in the Universal Declaration's wake, a right is a human right if the rationale for establishing and protecting the right—for example, as a treaty-based right—is, in part, that conduct that violates the right violates the imperative, articulated in Article 1 of the Universal Declaration, to “act towards all human beings in a spirit of brotherhood.” Each of the human rights articulated in the Universal Declaration and/or in one or more international human rights treaties—for example, the right, articulated in Article 5 of the Universal Declaration and elsewhere, not to be subjected to “cruel, inhuman or degrading treatment or punishment”—is a specification of what, in conjunction with other considerations, the imperative—which functions in the morality of human rights as the normative ground of human rights—is thought to forbid (or to require). A particular specification is controversial if and to the extent the supporting claim—a claim to the effect that the “act towards all human beings in a spirit of brotherhood” imperative forbids (or requires)X—is controversial. My aim in this essay is to elaborate and defend a particular specification: the right, internationally recognized as a human right, to freedom of conscience—to freedom, that is, to live one's life in accord with the deliverances of one's conscience.
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Chartier, Gary. "Natural Law and Animal Rights." Canadian Journal of Law & Jurisprudence 23, no. 1 (January 2010): 33–46. http://dx.doi.org/10.1017/s084182090000480x.
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The new classical natural law theorists have been decidedly skeptical about claims that non-human animals deserve serious moral consideration. Their theory features an array of incommensurable, nonfungible basic aspects of welfare and a set of principles governing participation in and pursuit of these goods. Attacks on animals’ interests seem to be inconsistent with one or more of these principles. But leading natural law theorists maintain that animals do not participate in basic aspects of well being in ways that merit protection, that the so-called “argument from marginal cases” is unsuccessful as a basis for claims that animals have moral standing, and that affirming that animals have rights leaves one with no basis for maintaining that humans do as well. In response, I suggest that animals can be understood to participate in some aspects of well being, defend the argument from marginal cases, and offer reasons why we might believe that affirming that animals have rights does not undermine the claim that humans have rights.
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Corlett, J. Angelo. "The Problem of Collective Moral Rights." Canadian Journal of Law & Jurisprudence 7, no. 2 (July 1994): 237–59. http://dx.doi.org/10.1017/s084182090000268x.
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Despite the neglect by political liberals in the distant and recent past to take collective rights seriously, the problem of collective rights is beginning to capture the attention of an increasing number of philosophers. This new concern for collective rights seems to be “the result of a recent interest in the value of communities.” I shall clarify and assess some of the chief categories of collective moral rights talk and proffer some criteria of adequacy for a philosophical analysis of collective moral rights. Finally, I set forth and defend an analysis of justified collective moral rights.
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Allan, James. "A Doubter's Guide to Law and Natural Rights." Victoria University of Wellington Law Review 28, no. 1 (March 2, 1998): 243. http://dx.doi.org/10.26686/vuwlr.v28i1.6092.
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The assertion that there are no independent moral values which transcend the view of an individual, or the society in which he or she lives, may cause consternation to many. Indeed it has been argued that it will tum the liberal western legal tradition on its head by removing the foundation for the rights on which that tradition is built. James Allan in this article suggests that such consternation is misplaced. While an objective moral reality is denied, he accepts the existence of an objective physical world. From this premise he reasons that certain courses of conduct will have certain consequences which, by human nature rather than moral precept, will be desirable or undesirable. It is therefore unlikely that the status quo need be changed to take account of the possibility of moral scepticism. The author proceeds to argue that if the fiction of moral realism were exposed it is likely that the position of tolerance widely adopted in the West would be able to be better defended. He concludes that the Western legal tradition, its commitment to tolerance and the existence of rule based rights would be preserved and enhanced by an acceptance of moral scepticism.
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Feser, Edward. "CLASSICAL NATURAL LAW THEORY, PROPERTY RIGHTS, AND TAXATION." Social Philosophy and Policy 27, no. 1 (January 2010): 21–52. http://dx.doi.org/10.1017/s0265052509990021.
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AbstractClassical natural law theory derives moral conclusions from the essentialist and teleological understanding of nature enshrined in classical metaphysics. The paper argues that this understanding of nature is as defensible today as it was in the days of Plato, Aristotle, Augustine, and Aquinas. It then shows how a natural law theory of the grounds and content of our moral obligations follows from this understanding of nature, and how a doctrine of natural rights follows in turn from the theory of natural law. With this background in place, the implications of the theory for questions about property rights and taxation are explored. It is argued that classical natural law theory entails the existence of a natural right of private property, and that this right is neither so strong as to supportlaissez fairelibertarianism, nor so weak as to allow for socialism. Though the theory leaves much of the middle ground between these extremes open to empirical rather than moral evaluation, it is argued that there is a strong natural law presumption against social democratic policies and in favor of free enterprise.
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Pavčnik, Marijan. "Questioning the Moral Understanding of Law." DANUBE: Law and Economics Review 8, no. 2 (June 27, 2017): 111–16. http://dx.doi.org/10.1515/danb-2017-0008.
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Abstract The primary content-related framework we are bound to are the basic human rights as established in the constitution. These basic rights may change and develop, yet as the heritage of our political and legal culture, they possess such a solid core meaning that only a “dogmatic sceptic” (G. Radbruch) can doubt it. In societies with plural values, the moral values expressed by the basic human rights are the most solid moral basis of law. The moral understanding of law is necessarily accompanied by a moral criticism of law. Such criticism is often not pleasing to the authorities, but it cannot be avoided if one wants to live up to our responsibility towards nature, society and future generations. A lawyer who is not interested in these issues and only sticks to the letter of the law acts in a fossilized manner and does not enrich the life that the law is intended for. Legal thought should always have its meaning, as Smole’s Antigone would say.
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SEN, AMARTYA. "Legal Rights and Moral Rights: Old Questions and New Problems*." Ratio Juris 9, no. 2 (June 1996): 153–67. http://dx.doi.org/10.1111/j.1467-9337.1996.tb00233.x.
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Nainggolan, Samuel Dharma Putra, Ni Made Yordha Ayu Astiti, and Diajeng Woro Andini. "COPYRIGHT DAN RIGHT TO COPY (PEMAHAMAN DASAR HAK CIPTA DAN HAK YANG TERKAIT DENGAN HAK CIPTA DALAM BIDANG HAK KEKAYAAN INTELEKTUAL)." HUKUM DAN DINAMIKA MASYARAKAT 20, no. 2 (December 23, 2022): 1. http://dx.doi.org/10.56444/hdm.v20i2.3551.
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Copyright is a system of rights in the field of Intellectual Property Rights (IPR). In Indonesia, arrangements regarding Copyright are currently governed by Law Number 28 of 2014 Concerning Copyright. Regulates the scope and protection of a work which is the embodiment of human creativity, taste and initiative as God's creatures. Copyright which is an exclusive right attached to the Author in which there are Economic Rights and Moral Rights. Authors and other parties who receive Rights Related to Copyrights can receive economic benefits from an existing copyrighted work (Economic Rights). died (moral rights). In the Civil Law System legal system, the focus is on protection of the Author, whereas in the Common Law System legal system, the focus is on the protection of Works.
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Suka Asih K.Tus, Desyanti. "HAK EKONOMI DAN HAK MORAL KARYA CIPTA POTRET DI SOSIAL MEDIA." VYAVAHARA DUTA 14, no. 1 (September 19, 2019): 12. http://dx.doi.org/10.25078/vd.v14i1.1099.
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<p>Copyright is an exclusive right which contains economic rights and moral rights. Portrait is part of a protected creation. In a portrait that is distributed offline or online through social media, namely economic rights and moral rights that must be presented and adhered to by users. Copyright infragement that still occur for portraits on social media are related to violations of economic and moral rights. The use of portraits on social media without permission for commercial purposes is a form of violation of economic rights. While the form of violations of moral rights over portraits is not to include the creator or source of portraits used in social media. The regulation and protection of economic and moral rights of portraits on social media are regulated in the Copyright Law. Economic rights are stipulated in Article 12 to Article 15. Moral rights are stipulated in Article 5 to Article 7.</p>
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Jecker, Nancy S., and Loren Lomasky. "Persons, Rights, and the Moral Community." Law and Philosophy 8, no. 2 (August 1989): 279. http://dx.doi.org/10.2307/3504699.
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Meyers, Diana Tietjens. "Social exclusion, moral reflection, and rights." Law and Philosophy 12, no. 2 (May 1993): 217–32. http://dx.doi.org/10.1007/bf02346479.
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Schilling, Theodor. "The Recognition of Human Rights: A Threefold Myth." Human Rights Law Review 20, no. 2 (June 2020): 210–35. http://dx.doi.org/10.1093/hrlr/ngaa016.
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Abstract The discussion of the recognition of human rights by law suffers from the acceptance of three myths: that recognition is provided for in human rights instruments, that there exist moral norms ready to be recognised by law and that recognition is what happens when a legal norm that corresponds to a moral precept is adopted. To counter the first myth, the article undertakes a close reading of the relevant passages of human rights instruments. To counter the second myth, the article observes that there exist few if any universally valid moral norms ready to be recognised by law but an abundance of other moral precepts. To counter the third myth, the article argues that what happens is rather the replication of the content of a moral precept in law. From all these, it follows that there cannot be any necessary connection between moral norms or other precepts and legal human rights. This distinctness of moral precepts and legal human rights, it is argued in conclusion, is apt to strengthen legal human rights protection: it diminishes the influence ‘traditional values’ might otherwise have on this protection.
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Cohen, I. Glenn. "This Is Your Brain on Human Rights: Moral Enhancement and Human Rights." Law & Ethics of Human Rights 9, no. 1 (May 1, 2015): 1–41. http://dx.doi.org/10.1515/lehr-2015-0001.
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Abstract It seems fair to say that human rights law takes the human as given. Human beings are particular kinds of entities with particular kinds of psychologies and propensities, and it is the job of human rights law and human rights enforcement to govern that kind of entity, be it through sanctions, education, incentives, or other mechanisms. More specifically, human rights law takes human brains as given. If humans were different kinds of beings, both the mechanisms of getting compliance and possibly the very rules themselves would be different. The purpose of this essay is to very tentatively start to tie together thinking in neuroscience, bioethics, and human rights law to ask whether human rights law should take the nature of human beings, and more specifically, human brains, as given. I sketch the alternative possibility and examine it from a normative and (to a lesser extent) scientific perspective: instead of merely crafting laws and setting up structures that get human beings such as they are to respect human rights, that the human rights approach should also consider embracing attempts to remake human beings (and more specifically human brains) into the kinds of things that are more respectful of human rights law. This is currently science fiction, but there is some scientific evidence that moral enhancement may one day be possible. I call the alternative “moral enhancement to respect human rights law.” To put the aim of the essay in its mildest form it is to answer the following question: if it becomes possible to use enhancement to increase respect for human rights and fidelity to human rights law (whatever you think is constitutive of those categories), and in particular in a way that reduces serious human rights violations, is it worth “looking into?” Or, by contrast, are the immediate objections to such an endeavor so powerful or hard to refute that going in this direction should be forbidden.
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Wood, Nicholas Stuart. "Protecting Creativity: Why Moral Rights Should be Extended to Sound Recordings under New Zealand Copyright Law." Victoria University of Wellington Law Review 32, no. 1 (March 5, 2001): 163. http://dx.doi.org/10.26686/vuwlr.v32i1.5899.
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Traditionally, moral rights have not extended to the creators of sound recordings under either common law or civil law systems. The somewhat outdated rationale of this exclusion of sound recordings from the ambit of moral rights protection was generally that sound recordings were merely mechanical reproductions of already existing musical works, and hence the recordings lacked sufficient creativity to make them worthy of moral rights protection. In 1996, the WIPO Performances and Phonograms Treaty sought to remedy this anomaly in copyright law by extending the moral rights of paternity and of integrity to performers whose performances are fixed in sound recordings.This paper argues that New Zealand should follow WIPO's lead and extend the moral rights provisions of the Copyright Act 1994 to sound recordings. The author argues that sound recordings are imbued with sufficient creativity to merit moral rights protection and that this protection should be granted not only to performers but to sound engineers and producers, who also contribute creatively to the recording. This paper examines how moral rights in relation to sound recordings might work in practice and what remedies should be available for breach of these rights. The author concludes that the extension of moral rights to sound recordings need not impact detrimentally on the music industry, as some commentators fear.
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Bird, Robert C. "Moral Rights: Diagnosis and Rehabilitation." American Business Law Journal 46, no. 3 (September 2009): 407–52. http://dx.doi.org/10.1111/j.1744-1714.2009.01082.x.
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Gultom, Hosiana Daniel Adrian, Ellora Sukardi, and Serlly Waileruny. "Kajian Terhadap Hak Eksklusif Atas Jingle Dari Perspektif Hak Cipta Dan Merek." Ajudikasi : Jurnal Ilmu Hukum 5, no. 2 (December 25, 2021): 135–50. http://dx.doi.org/10.30656/ajudikasi.v5i2.3978.
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Jingle is included in the category of creation in the form of songs or music under copyright law and is included in the type of sound mark in trademark law. Therefor there is a double legal protection for the jingle, namely copyright and trademark. Copyright law protection uses a declarative system while trademark law protection uses a constitutive system. In copyright law and trademark law there are exclusive rights, namely rights granted by the state to the rightful owner. Exclusive rights in copyright are moral rights and economic rights while exclusive rights in trademarks are called trademark rights. With the existence of moral rights and economic rights in the context of copyright law and rights to trademarks in the context of trademark law, various privileges arise for the owner of the jingle. These features are reviewed by the author in this paper with the aim that the jingle owner can understand the moral rights and economic rights in the copyright law system and the rights to trademarks in the trademark legal system that are related to the jingle in a precise and comprehensive manner.
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Papazu, Monica. "Man in a World without God." Almanac “Essays on Conservatism” 29 (September 19, 2019): 119–30. http://dx.doi.org/10.24030/24092517-2019-0-3-119-130.
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The article discusses the gulf between the Christian and the secular view of man. Anthropocentric humanism is characterized by the rejection of the natural (moral) law, which has been supplanted by law positivism. So-called rights are disconnected from the moral law and from the moral duties from which they derive. As the idea of “essence” (that which gives a being its identity) is abolished, man can be redefined at will, and “the right to life” is being conceived as a relative, highly conditional right.
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Drobiazko, Volodymyr. "Protection of the rights of performers in accordance with German law." Theory and Practice of Intellectual Property, no. 4 (October 19, 2022): 24–29. http://dx.doi.org/10.33731/42022.265846.
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Keywords: rights of the performer, moral rights, rights to use, communication tothe public, the right of the performer to demand payment of remuneration, the validityperiod of the rights to use
The article examines the protection of performers' rights in Germany, introduced by the Act amending copyright regulations of 24 June 1985. The Copyright Act includes Part 2 «Neighboring Rights», section 3 of which deals with the protection of performers' rights, and the law itself is called the «German Copyright and Neighboring Rights Act». The German Law of 10 September 2003 on the regulation of copyright in the information society completely amends §§ 73−83 of the Copyright and Related Rights Act, which governs the protection of performers' rights under the WPPT.The provisions of § 73 «Performer» are extended to the performance of works of folk art. Paragraphs 74−76 are devoted to the protection of moral rights, which were indicated fragmentarily by previous legislation. In the corrected form, moral rightstake precedence over rights of use, which confirms the special adherence of German law to them. Whereas under previous legislation so-called “consent rights” were granted to performers, the updated paragraphs grants the present rights of use:recording, reproduction and distribution, communication to the public, rights of use, the right of the performer to demand payment of remuneration, the sharing of several performances.In Germany, the rights of the organizer of performances are protected. If the performance of the performer is organized by a company, then the rights to use belong, in addition to the performer, also to the owner of the company. According to §83, the provisions of Section 6 «Copyright Restrictions» of Part I «Copyright» of the Copyright and Related Rights Act apply respectively to the restriction of the rights of the performer and the organizer of the performance.The protection of performers in Germany is in accordance with the provisions of the Rome Convention, the WPPT, the relevant EU directives. With further improvement of the protection of the rights of performers in Ukraine, it would be useful to use the experience of Germany regarding the protection of the rights of the organizer of a performance and determining the term for the protection of rights to performances recorded on a phonogram.
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Walt, Steven, and Micah Schwartzman. "Morality, Ontology, and Corporate Rights." Law & Ethics of Human Rights 11, no. 1 (May 8, 2017): 1–29. http://dx.doi.org/10.1515/lehr-2017-0002.
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Abstract Does the ontology of corporations matter for corporate rights? Much of the philosophical literature on corporate rights focuses on whether corporations are real entities, aggregations of individuals, or fictions to which rights or other entitlements can be ascribed. We argue that this focus is misplaced. Whether corporations have rights, and the sort of rights they have, is a question of moral theory. It is not fundamentally a matter of ontology, as F.W. Maitland thought, or a matter of legal or moral semantics, as H.L.A. Hart once argued. The going moral theory, not conceptual requirements or explanatory criteria, determines the conditions a corporation must satisfy to have various rights and duties. We argue that this truth is independent of the deontic, consequentialist, or hybrid character of the moral theory. This paper defends three claims. First, the ontological status of a group as an intentional agent is neither necessary nor sufficient for its moral status or entitlements. A moral theory in principle could recognize groups that are not intentional agents, and a group’s existence as an intentional agent does not by itself require moral recognition. A moral commitment to corporate rights and duties is therefore not determined by the indispensability of groups in explaining group behavior. Second, the substantive claims of a moral theory (understood broadly) determine the conditions for assigning rights and duties to corporations. Third, this moral conception of corporate rights has both legal and moral implications for the treatment of corporations.
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Sainsbury, Maree. "What's it Got to Do with Morality? Moral Rights: An Historic and Contemporary Perspective." Media International Australia 114, no. 1 (February 2005): 61–70. http://dx.doi.org/10.1177/1329878x0511400108.
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Australia introduced moral rights legislation in December 2000, giving effect to a doctrine that originated in civil law jurisdictions in the eighteenth century. The rights given effect to in Australia are the right of integrity, which allows the author to prevent derogatory treatment of their work, and the right of attribution, which mandates attribution of the author when the work is reproduced, published or otherwise communicated to the public. There is also the right to prevent false attribution of authorship. This article looks at the historical development of moral rights and examines why such an amendment to the law in Australia was necessary in a contemporary context. It discusses the implications of this amendment for the media and other industries.
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Lewis, Jessica. "With Love and Kisses: Nothing Lasts Forever: An Examination of the Social and Artistic Antiquation of Moral Rights." International Journal of Cultural Property 23, no. 3 (August 2016): 267–94. http://dx.doi.org/10.1017/s0940739116000151.
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Abstract:This article examines the social and artistic antiquation of moral rights law. Moral rights law developed, and was implemented, under the heavy influence of the French preference to put the rights of the author at the center of intellectual property protection (with Victor Hugo leading this charge). However, as artistic practice evolves in a continually rapid fashion, it is becoming increasingly clear that moral rights are unable to properly accord with modern art forms. An examination of the social construction of authorship, the emergence of unique contemporary art forms, and the role of technology as a catalyst to intellectual property law, reveals that the Western world’s legal moral rights scheme cannot survive its current form. Moral rights’ endurance hinges on its ability to reconcile with a social and artistic climate alien to its origins. Artistic expression does not exist in a vacuum and is inextricably linked to, and reflective of, the social climate it is born out of. As society evolves and shifts, so too does its art and so must the law.
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Cantatore, Francina, and Jane Johnston. "Moral Rights: Exploring the Myths, Meanings and Misunderstandings in Australian Copyright Law." Deakin Law Review 21, no. 1 (February 23, 2018): 71. http://dx.doi.org/10.21153/dlr2016vol21no1art727.
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This article examines how moral rights are treated in Australian publishing contracts, and whether this approach is consistent with the expectations of authors, journalists and academics. Although, in theory, moral rights cannot be sold or assigned in Australia, the apparent wide scope for exceptions raises questions of whether there is any real protection afforded to creators under the Copyright Act 1968 (Cth), notably in circumstances that relate to pressure on creators to accept contractual terms in order to get published. Additionally, Australian case law reflects some uncertainty about the traditionally accepted non-economic nature of moral rights. The article examines recent case law in this field, found in Meskenas, Perez and Corby, and considers the literature associated with development of moral rights in Australia. It then presents the findings of a two-part study of moral rights in Australia; first through the results of interviews with 176 Australian authors, journalists and academics, followed by an analysis of 20 publishing contracts. It concludes that — in some, but not all, instances — a combination of the exceptions allowed under the Act and practical exigencies have diluted the unique character of authors’ moral rights and have created an environment of uncertainty.
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McCutcheon, Jani. "The Honour of the Dead – the Moral Right of Integrity Post-Mortem." Federal Law Review 42, no. 3 (September 2014): 485–518. http://dx.doi.org/10.22145/flr.42.3.3.
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Can the honour of the dead be prejudiced? There is much philosophical debate about whether the dead can, or should, enjoy legal rights. Australia, like many jurisdictions, has apparently bypassed that debate and confers post-mortem moral rights on authors, which endure for at least 70 years after an author's death. The Australian moral right of integrity protects authors from certain conduct in relation to their copyright works, which is prejudicial to their honour or reputation. This deliberate conferral of a posthumous right ostensibly acknowledges that a deceased author's honour can be harmed. This article examines questions surrounding the apparent conundrum of posthumous prejudice to an author's honour. How can prejudice to the honour of the dead be established in the absence of the author, particularly if honour is interpreted subjectively? Do insuperable evidentiary hurdles render the posthumous honour limb of the moral right of integrity illusory? The article concentrates on Australian law, but engages in relevant comparative treatments, particularly with French, Canadian and United Kingdom law. Judicial consideration of moral rights under the common law is scant, particularly in Australia, and rarer still in a post-mortem context. However, the issues explored in the article are important, will inevitably arise for consideration and merit a comprehensive examination.
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Thompson, C. Bradley. "ON DECLARING THE LAWS AND RIGHTS OF NATURE." Social Philosophy and Policy 29, no. 2 (July 2012): 104–38. http://dx.doi.org/10.1017/s0265052512000015.
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AbstractThis article examines the moral theory of the American Revolutionary and Founding periods by focusing on two key concepts of that doctrine: the moral laws and the moral rights of nature. In particular, the article will examine several important questions from the perspective of America’s Revolutionary generation: What are the moral laws and rights of nature? What is the difference between a law and a right of nature, and how are the laws and rights of nature related to each other? Are nature’s moral laws and rights descriptive, prescriptive, or both? What are the attributes and sanctions of nature’s laws and rights, and how are they promulgated? What is the source of nature’s laws and rights? And finally, how did America’s founding fathers use the laws and rights of nature to establish their political institutions? In order to answer these questions, the article focuses on the core text universally recognized as the symbol of America’s revolutionary mind and moral theory: the Declaration of Independence. The Declaration’s deepest philosophic meaning is herein illuminated by also examining the broader, extant literature of the period.
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Agarwal, Nikhil, and Vinayak Ojha. "Moral Rights: International Framework and Indian Approach." Christ University Law Journal 6, no. 1 (January 1, 2017): 1–20. http://dx.doi.org/10.12728/culj.10.1.
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In the wake of increasing globalization and technical advancements in the digital field, the dissemination of creative work has become easier than ever. However, this development has come with its own set of challenges, particularly for Intellectual Property Law, as most of online transfer of information is unregulated. Digitalization has lead to the imminent need for standardized and stringent protection of an author‟s work. While this protection is mainly conceived as commercial right of the author on his work, there is another fundamental element to it, which is equally important and cannot be neglected, i.e., moral rights. These rights include right of attribution and integrity and are so inextricably related, that they stay with the author, even after transfer of economic rights on the work. In order to ensure effective globalized protection, there is a requirement for minimum standards of protection in all domestic laws, as was provided in the TRIPS agreement. This paper analyzes the Moral Rights regime as envisaged by the TRIPS agreement, and the monoist and dualist approaches that have been adopted by different countries. It also analyzes the evolution of moral rights in India.
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Little, David. "THE RIGHT OF SELF-DEFENSE AND THE ORGANIC UNITY OF HUMAN RIGHTS." Journal of Law and Religion 36, no. 3 (December 2021): 459–94. http://dx.doi.org/10.1017/jlr.2021.59.
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AbstractThe article challenges the fashionable but finally unsupportable opinion in political and academic circles that there exists no compelling, unitary, universally resonant moral and legal justification of human rights. The argument is intimated by two overlooked passages in the preamble to the Universal Declaration of Human Rights that presuppose the right of self-defense against arbitrary force, understood as both a moral and legal concept, and as relevant both to personal and collective life. It shows how the logic of defensive force underlies the three formative human rights instruments: the UDHR, and the two covenants on political, legal, economic, social, and cultural rights. The underlying claim is that good reasons of a particular kind are required to justify any use of force, a claim that makes perfect sense against the backdrop of the atrocities committed by the German fascists and their allies in the mid-twentieth century. The article also refers to compelling, if preliminary, evidence of the widespread cross-cultural acceptance of the moral and legal right of self-defense, suggesting a basis for the worldwide comprehensibility and appeal of human-rights language.
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Cain, Patricia A., Jean C. Love, Judith Jarvis Thomson, and William Parent. "Stories of Rights: Developing Moral Theory and Teaching Law." Michigan Law Review 86, no. 6 (May 1988): 1365. http://dx.doi.org/10.2307/1289185.
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Hall, Peter. "Moral algorithm versus human rights law; philosophy versus ethos." Lancet 376, no. 9758 (December 2010): 2072–73. http://dx.doi.org/10.1016/s0140-6736(10)62292-1.
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Adams, N. P. "GROUNDING PROCEDURAL RIGHTS." Legal Theory 25, no. 1 (January 28, 2019): 3–25. http://dx.doi.org/10.1017/s1352325218000186.
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AbstractIt is commonly held that we wrong someone if we punish them without first determining whether they are guilty through the process of a sufficiently fair and reliable procedure. This wrong is best explained by pre-institutional moral procedural rights. Recently, Christopher Heath Wellman has argued for the skeptical conclusion that there are no such rights, challenging a widely held orthodoxy. I propose two novel grounds for pre-institutional moral procedural rights and so answer Wellman's skepticism. First, we have rights not to be subject to punitive systems that do not include specific sorts of reliable procedures because otherwise we are subject to unreasonable risks of undeserved punishment. Second, not only do we have rights that others not harm us or unreasonably risk harming us, we have rights that they control for avoiding wrongfully harming us across relevant close possible worlds.
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Gaus, Gerald F. "Green's Rights Recognition Thesis and Moral Internalism." British Journal of Politics and International Relations 7, no. 1 (February 2005): 5–17. http://dx.doi.org/10.1111/j.1467-856x.2005.00163.x.
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T. H. Green claimed that ‘rights are made by recognition. There is no right but thinking makes it so’. This ‘rights recognition thesis’ is widely rejected. I argue in this article that, so far from being an idiosyncratic doctrine of 19th-century British Idealism, the rights recognition thesis implies a compelling conception of rights, and one that, surprisingly, is more in tune with contemporary meta-ethics than are many contemporary rights theories. Green's moral theory, I argue, is a form of the widely embraced doctrine of ‘moral internalism’. Such internalism, conjoined with a generally embraced analysis of rights, leads to some version of the rights recognition thesis.
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Namli, Elena. "Universal Rights versus Sharia? Reflections on the Moral and Legal Dimensions of Human Rights Law and Sharia." Religion and Human Rights 8, no. 2 (2013): 139–61. http://dx.doi.org/10.1163/18710328-12341248.
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Abstract This article develops a critique of the monopoly of liberal ideology in the field of human rights by considering how law, morality and politics are related to each other. The author argues that the constructive potential of international human rights law does not lie in its being understood and practiced as a positive law. On the contrary, to focus on human rights law as positive law is to conceal the political nature of human rights and to prevent effective development of its moral and political potential. Further, the author considers the case of Sharia law and argues that Sharia, for it to be implemented concretely in the social, political, and legal spheres, must be understood as a moral and religious ‘way’. These interpretations of human rights law and Sharia are used as the basis for a critique of the idea that human rights law and Sharia contradict each other.
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Mintoff, Joe. "Can Utilitarianism Justify Legal Rights with Moral Force?" University of Pennsylvania Law Review 151, no. 3 (January 2003): 887. http://dx.doi.org/10.2307/3312881.
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Hassoun, Nicole. "Some Reflections onThe Moral Dimensions of Human Rights." Jurisprudence 3, no. 1 (June 2012): 253–62. http://dx.doi.org/10.1080/20403313.2012.11423538.
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Panchenko, Olha Ivanivna. "The case-law from the ECHR regarding the compensation of moral damage to the employee." Revista Amazonia Investiga 11, no. 57 (November 8, 2022): 48–55. http://dx.doi.org/10.34069/ai/2022.57.09.5.
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The purpose of the article is to study the practice by the ECHR regarding reimbursement for moral harm caused to the employee. The subject matter of research is moral damage. Methodology. The methodological bases for the Article are: general scientific, systematic methods, method of descent from the abstract to the concrete, sociological and legal research method, method of generalizing judicial practice, etc. Research results. The judgments by the ECHR on compensation for moral damage to employees, which was caused as a result of discrimination, dismissal due to a strike, because of the statement in the media, political beliefs, based on gender and due to illness, were considered. Practical meaning. It was proven that since the rights of the second generation (which include labor rights) are not reflected in the Convention, a person has no right to apply for their protection to the Court. This is possible only if other fundamental rights were affected during the violation of labor rights. Value/originality. The use of case-law from the ECHR in the process of researching the institution of compensation for moral damage to an employee will contribute to the development of its use in law enforcement activities and the dissemination of the experience of equitable reimbursement as a way to protect the violated rights and legitimate interests of workers in Ukrainian realities.
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Mendonça Bertotti, Bárbara, Cynthia Gruendling Juruena, and Mohamed A. 'Arafa. "POLYGAMY AGAINST MORAL OR AGAINST LAW? A COMPARATIVE STUDY BETWEEN BRAZILIAN LAW AND ISLAMIC LAW." Revista do Direito, no. 63 (August 19, 2021): 26–48. http://dx.doi.org/10.17058/rdunisc.v0i63.15290.
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This article aims to investigate in a different way the concomitant relations of conjugality - here from the moment it is formalized matrimonialized as to its conformation as a situation of fact, not Authorized and not Islamic Law. The Brazilian and Islamic legal systems admit and protect polygamous relationships? The conclusion is that the right of reply is the right of police expression manifested in polygamy. In Brazil, the laws are not of the world of facts, being inclusive, in some cases, those of the right to the right, but there is still a strong tendency to legalize the legalization of polygamy, for strictly moral/religious reasons. Thus, contrary to common sense, it may be said that the Muslim is more monogamous than the Brazilian is. Still, it can be affirmed that, although Brazil declares itself secular, in practice there is no demarcated separation between State and religion. The Islamic communism is the rights of human religion. Paradoxically, would Brazil then be cloaked in the veil of Islam? The methodology used is exploratory, from a comparative perspective, taking the necessary precautions to differentiate between the two systems.
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Le, Van Anh. "Moral rights and their position in the digital world." Ministry of Science and Technology, Vietnam 64, no. 3 (December 20, 2022): 46–54. http://dx.doi.org/10.31276/vmostjossh.64(3).46-54.
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The proliferation of technology and the internet has made moral rights more vulnerable than ever. Although the digital age plays a significant role in disseminating culture to a larger audience, the online environment also comes with a threat to the author’s personal interests. Their “spiritual children” are more easily under attack. However, under international law, moral rights have not been considered duly. The Berne Convention, the TRIPS Agreement, WIPO Internet Treaties, and even EU Harmonize Directives all shy away from the moral rights issue in the “Digital age”. In an era when technology is developing faster than the laws regulating it, the exigency for moral rights development in copyright law must be paid more attention. This paper examines how the internet influences the protection of moral rights and to what extent it has made them more susceptible.
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Alexander, John M. "Capabilities, human rights and moral pluralism." International Journal of Human Rights 8, no. 4 (January 2004): 451–69. http://dx.doi.org/10.1080/1364298042000283585.
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Vaver, D. "Moral rights yesterday, today and tomorrow." International Journal of Law and Information Technology 7, no. 3 (September 1, 1999): 270–78. http://dx.doi.org/10.1093/ijlit/7.3.270.
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Situngkir, Danel Aditia. "MANIFESTASI PRINSIP MORAL DALAM PEMBENTUKAN PENGADILAN PIDANA INTERNASIONAL." Ensiklopedia of Journal 4, no. 3 (February 6, 2022): 1–7. http://dx.doi.org/10.33559/eoj.v4i3.950.
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The establishment of the International Criminal Court is an answer to the view of natural law regarding past events where to try the perpetrators of serious crimes against human rights an ad hoc international criminal court was formed which violates the provisions that have been considered rigid as law by positivists. In view of natural law, the provisions referred to in the Rome Statute are formed which are the basis for the establishment of an international criminal tribunal that has the authority to try perpetrators of crimes of genocide, crimes against humanity, war crimes and crimes of aggression. According to adherents of natural law theory, natural law doctrines will always color and inspire positive law, so that positive law always goes on the right track, both when laws are made, implemented and when used by judges in deciding cases in court. Natural law offers options through its higher-trusted rules. In this case the law of nature will function as an opposition to a tyrannical government (repeated often in history). The laws of nature are also dual in nature. At one end its function is to protect the rights, freedoms and independence of individuals, at the other end in a country, natural law as the embodiment of the highest value functions as a cry for a nation's integrity, in which operational forms of social solidarity, the common good, the public interest or social consensus.
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Moore, Michael S. "LIBERTY AND THE CONSTITUTION." Legal Theory 21, no. 3-4 (December 2015): 156–241. http://dx.doi.org/10.1017/s1352325216000057.
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ABSTRACTThe article uses the recent U.S. Supreme Court decision in the same-sex marriage caseObergefell v. Hodgesas the springboard for a general enquiry into the nature and existence of a constitutional right to liberty under the American Constitution. The discussion is divided into two main parts. The first examines the meaning and the justifiability of there being a moral right to liberty as a matter of political philosophy. Two such rights are distinguished and defended: first, a right not to be coerced by the state when the state is motivated by improper reasons (prominent among which are paternalistic reasons); and second, a right not to be coerced by the state when there are insufficient justifying reasons for the state to do so, irrespective of how such state coercion may be motivated. Neither right is regarded as “absolute,” and so it is morally permissible for the state to override such rights in certain circumstances. The second part of the article examines the distinct and additional considerations that must be taken into account when these two moral rights to liberty are fashioned into corresponding legal rights under American constitutional law. Both such rights survive the transformation, but each becomes altered somewhat in its content. This legal transformation includes recognition of the nonabsolute nature of moral rights, such recognition taking the form of some doctrine of “compelling state interests.” The discussion in these two main parts of the article is prefaced with a defense of the article's use of political philosophy to inform constitutional law, a defense motivated by Chief Justice Robert's denunciation of such an approach to constitutional law in his opinion inObergefell.