Author’s right and copyright
The difference between author’s right and copyright
Although 'copyright' is often seen as synonymous with the term ‘author’s right’, there are some small but significant differences in meaning.
The term ‘author’s right’, most often used in mainland Europe, mainly protects the person of the author, whereas the English ‘copyright’ refers to the investment and to the existing regulations in Anglo-Saxon countries (UK, USA). Legal bodies (for example nv, bvba, vzw) can also be considered as original claimants (‘works made for hire’). This is not the case in the system of the ‘author’s right’, where essentially a transfer of rights initiated by the original author to the legal body is needed. Furthermore in ‘author’s right’, the moral rights are inalienable, whereas in ‘copyright’ nations they are nearly impossible.
In Belgium, author’s right is protected by the articles of the Law of 30 June 1994 on author’s rights and neighbouring rights. The ‘author’s right’ protects the authors of literary and art works, while the ‘neighbouring rights’ protect the achievements of the performing artists (such as actors, singers, dancers, musicians) and producers of recordings, films, broadcasts and databases.
Considering the author's right
Essentially, the author of an intellectual creation exercises exclusive and absolute ownership over it, by virtue purely of having created it. He or she however is nevertheless entitled to relinquish these rights in whole or in part, by sale, contract or legation, to another person or entity who then becomes then the legal rights holder.
There are two different kinds of author’s rights:
Patrimonial rights give the author the exclusive right to exploit his or her work commercially, or to authorise others to exploit them, in any way and within the limits established by law. In principle, the consent of the author is required for every reproduction and/or publication of a protected work.
The author’s moral rights
The moral rights protect the personal and reputational value of a work to its creation. They are considered to be tied to the person and are therefore inalienable. Moral rights include the right of divulgation (the right to publish a work), the right of attribution or paternity (the right to publish a work anonymously or using a pseudonym or the right to be identified as the author) and the right to the integrity of the work (the right to respect for the work of an author, for example the right of the author to object to changes made in the work).
Duration of the author's rights
According to the law, an artist has the right to benefit from his or her creation during his or her lifetime. Upon their death, this right is transferred to their heirs for 70 years from 1 January of the next year. At the end of this period, the work falls into the public domain.
In the case of a work created in collaboration, such as a film, the calendar year taken into account is that of the death of the last of the following collaborators: the scriptwriter or adaptor, composer (in the case of an original score) or director.
The duration of copyright in the case of a work produced under a pseudonym, anonymously, or collectively, is 70 years, starting on 1 January of the year following that of publication. When a work created by an author who is deceased for 70 years is published, and the work hasn’t been published before, posthumous exploitation of the work is still possible. In that case, the law provides a shortened period of copyright protection of 25 years (upon the publication of the work).
Considering neighbouring rights
Similar to the 'author’s right', the moral rights of the performing artists are inalienable. The patrimonial rights expire 50 years after the performance, or the first publication of the performance. Professionally recognised additional artists (such as extras in a film) are not considered performing artists.
Rights of the artist over objects photographed
The objects (e.g. sculptures, paintings, pieces of architecture) exhibited or preserved in museums and certain public places (parks, gardens etc.) do not automatically belong to the public domain. Some are still protected by the artist’s copyright. As a result, any shots of art objects and their subsequent use are subject to the consent of the artist or his/her legal successors.
It is advisable to consult the organisations in charge of the preservation or exhibition to obtain the address of the artist, his or her heirs or the union representing them.
Belgian Authors, Composers
and Publicists Union
Multimedia Society of
Authors of Visual Arts