In his book Merges propose a stronger enforceability of the moral rights. For Merges a copyright or patent holder should have some rights over his creation even after transferring it to another person. Those rights should include, among others, the right to be mentioned as the creator or author.
I agree with Merges in the importance of such a right. The right to be mentioned as the creator of an idea, when it is being used by others, is an important incentive for creation. In a market for ideas it is essential to be recognized as a creator because that’s a way to be acknowledge in the field and to obtain a better position in the market (in terms of competition). Nevertheless, I disagree with Merger in the extension of these so called moral rights.
For Merger these rights have two important features: (a) they can’t be alienated; (b) they give the right holder some control over his creation even after the transfer. Merger is so strict with this point of view that, for him, it should be prohibited for a right holder to alienate these rights even by a free willing transaction.
Unfortunately, Merger doesn’t give us any explanation or justification for this. And more important, Merger doesn’t explain how this idea plays with another important idea of the IP system: generate incentives for new creations. Indeed, allowing the free transfer of these rights can create an important market that, at the same time, would allow authors and creators to obtain finance for their work (and survival!). An example could help us to understand this idea.
In the writing and music industry there is a very interesting figure known as the ghostwriter[1]. In simple words, a ghostwriter is a professional writer who is paid to write books, articles, or songs for other persons (who are going to be credited as the authors). As an example, a ghostwriter is usually hired for celebrities to write their biographies[2].
Why a person could agree to accept this kind of job? Because for new writers is a very good way to finance his own activities and creations. Indeed, while working for other people, new writers can obtain the funds they need to live and work in their own material. In this sense, the possibility to transfer the right to be credited as an author could be a very important way for new artists to keep in business. Only in this way they could afford their living costs and continue with their own work. In some way, this possibility allows them to create more ideas.
In this context, why the regulation should prohibit these kind of free transactions? Isn’t this going against the idea of generating incentives for new creations? Isn’t this going against Kant’s idea of waiving rights (at least on some way) that Merges proposed?
Probably a romantic view of acknowledge lead Merges to this proposal. Nevertheless, reality shows us the importance of these kinds of agreements. Indeed, we shouldn’t see these agreements as something unfair or immoral, but as something that at the end benefits artists.
[1] For more information see http://en.wikipedia.org/wiki/Ghostwriter
[2] A good example of this could be saw in the film “The Ghost Writer”, by Roman Polanski. See http://www.youtube.com/watch?v=L_AerBW0EcI
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