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Copyright, Moral Rights, and the Social Self
Simon, David A.
Simon, David A.
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Abstract
Moral rights—non-economic rights that enable authors to control how their
copyrighted work is divulged, attributed, modified, and withdrawn—are
grounded on the Investment Theory: when an author creates a work, she
invests part of her self in it. Because the work is an extension of the author’s
“self,” special rights—not merely economic rights—are needed to protect
it. Although intuitive, the rationale raises two central questions any moral
rights theorist must address: how can an author invest her “self” in a work,
and how might the law protect this investment? Moral rights scholars have
not provided a satisfactory answer to the first question, making the second
one difficult to address. This Article argues that an idea from social
psychology might help answer the first question and shape how we respond
to the second. Rather than some philosophical or abstract conception of the
self, the authorial self the law protects is the social one: the self created and
maintained through social interaction.
On this account, moral rights are tools to present and manage aspects of
this social self. They are limited “rights of impression management.” This
framing enables two analytical moves. First, it precisifies what moral rights
protect (the social self as externalized in the work) and the harm they
protect against (potential inconsistencies in that self). Second, it provides a
framework for discussing how moral rights ought to protect the self from
harm, raising the ultimate questions of whether and to what extent the
Investment Theory is justified.