COMPENSATORY ASPECTS OF COPYRIGHT MORAL RIGHTS INFRINGEMENT: A CASE LAW-BASED COMPARATIVE ANALYSIS

COMPENSATORY ASPECTS OF COPYRIGHT MORAL RIGHTS INFRINGEMENT: A CASE LAW-BASED COMPARATIVE ANALYSIS 

ABSTRACT

A considerable body of scholarship has addressed the theoretical foundation and recognition of moral rights in copyright law; however, the compensatory dimension of their infringement remains largely unexplored. This paper addresses this gap, examining the conditions under which courts award moral damages for copyright moral rights infringement, the criteria applied in their assessment and quantification, and the extent to which different judicial approaches reflect distinct conceptions of copyright.

Despite the long historical development of copyright, international and European instruments continue to provide limited guidance on the assessment and quantification of moral damages.

To address this normative gap, the paper adopts a comparative methodology, analysing the case law of four jurisdictions: Italy, France, Germany, and the United Kingdom. These legal systems were selected for the contrasting conceptions of copyright they embody, namely the civil law droit d’auteur tradition, the German monist conception of copyright, and the common law utilitarian approach. The analysis is conducted at both the normative and case law levels, examining judgments delivered over the past twenty-five years.

In particular, the work is structured in three chapters. The first traces the historical development of copyright from the invention of the printing press to the present day, focusing on the recognition of authors’ moral rights and the current international and European framework. The second analyses the normative framework of remedies available for moral rights infringement at the international, European, and national levels, offering the basis for the empirical analysis that follows. Finally, the third chapter examines the case law in each legal system with particular focus on how courts assess and quantify moral damages.

The findings of the work are that courts adopt different approaches to compensating moral damages across jurisdictions. Italy and France they adopt a personalist approach, treating moral damages as an autonomous compensable head of harm. In addition, both legal systems present uncertainty with regard to the burden of proof following the infringement of moral rights and the so-called in Italy danno in re ipsa. By contrast, Germany requires evidence of sufficiently serious interference with the author’s personal link to the work. Turning to the United Kingdom, damages tend to be assessed through commercially oriented criteria, marginalising the moral dimension of copyright. Despite these points of divergence, the study also identifies common assessment criteria across jurisdictions, such as the seriousness of the infringement, the author’s notoriety, and the extent of dissemination.

However, the study highlights the need for clearer guidance on the assessment of moral prejudice, in order to ensure more consistent and effective protection of the personal dimension of copyright.