It’s rare for creative works to be published without any changes being made to the author’s original manuscript. In fact, editing the author’s work is usually considered an essential step prior to publication.
But in recent years, there have been a number of cases where editorial changes were made to original works without the author’s consent. Prime examples would include certain passages reworked in the books of British author Roald Dahl or the “modernization” of novels written by Agatha Christie and Ian Fleming.
- Roald Dahl censorship allegations or Les versions originales des livres de Roald Dahl republiées
- Agatha Christie novels reworked or Roald Dahl, James Bond... au tour d'Agatha Christie d'être corrigée (en France aussi)
How does copyright fit into this editorial process, especially when the publisher is modifying the original work?
A moral rights issue
Authors have “economic” rights that enable them to derive financial reward from the use of their works (publishing, reproducing, making the work available to the public, etc.). In conjunction with those rights, they also have “moral” rights, which refer to the personal, more philosophical connection between the author and their works.
Unlike economic rights, which can be assigned to third parties with or without compensation, moral rights belong solely to authors. Moral rights cannot be assigned but they can be “waived.”
Here in Canada, the Copyright Act recognizes two types of moral rights:
- Right of attribution (or right to claim authorship or right of paternity): The author has the right to associate their name (real name or pseudonym) with their creation or, alternatively, they can maintain their anonymity.
- Right to the integrity of the work: The author can oppose any distortion, mutilation or modification of their work or the use of their work in association with a product, service, cause or institution.
In other countries such as France, authors also have a right of retraction, which allows them to withdraw their works from the market, a right of destruction, which allows them to destroy or oppose the destruction of their work, and a right of access, which allows them to gain access to a physical copy of their work stored in a private location.
Limits on legal action
When it comes to the right of integrity, the Copyright Act places a major limit on authors’ legal actions and remedies.
The Act states that the author’s right to the integrity of a work is infringed only if the modifications are detrimental (“to the prejudice of the honour or reputation of the author”).
Snow v. Eaton Centre Ltd.
In this 1982 case, the Ontario High Court of Justice ruled that the integrity of the sculpture Flight Stop by Michael Snow had been infringed.
The case is based on the fact that during the holiday season, Toronto’s Eaton Centre had attached decorative red ribbons to the artist’s sculptural installation representing Canada Geese in flight. In a very brief judgment at the interlocutory stage (i.e. the judge did not hear evidence submitted during a full-scale trial), the Court noted:
“(…) The plaintiff is adamant in his belief that his naturalistic composition has been made to look ridiculous by the addition of ribbons and suggests it is not unlike dangling earrings from the Venus de Milo. (…) I am satisfied the ribbons do distort or modify the plaintiff's work and the plaintiff's concern this will be prejudicial to his honour or reputation is reasonable under the circumstances.”
This judgment is one of the few that has addressed the issue of the right of integrity and that has ruled in favour of the artist.
Detrimental to the author’s honour … objectively or subjectively?
As was made clear in judgments subsequent to the Snow case, the criterion relating to prejudice to the author’s honour or reputation can be very difficult to satisfy, especially since there is a presumption in the Act that any modification to a painting, sculpture or engraving is prejudicial to the artist, whereas that presumption does not apply to other creative fields such as literature.
To meet the criterion in fields other than visual arts, the artist must personally (subjectively) consider that the integrity of their work has been infringed. In addition, they must provide evidence that their honour or reputation has objectively been damaged based, for example, on public or expert opinion.
This objectivity criterion was used by the court in Prise de parole v. Guérin, where the author asked for compensation because the published version distorted his work by taking extracts and omitting subplots and context.
While acknowledging the author’s frustration, the court noted that he had not been ridiculed or mocked and he had not personally heard any complaints after the text was published.
Under those conditions, the court concluded that the author had not provided evidence that, objectively, his work had been modified to the prejudice of his honour or reputation. This dual criterion of subjective and objective evidence has subsequently been used in various decisions, all of which ruled that there had been no objective harm.
Assigning copyright to publishers
The Act seems to recognize that the new copyright owner has the right to make changes as long as they do not infringe the author’s moral right to the integrity of their work.
Publishers are therefore allowed to modify works if the copyright in those works has been assigned to them and if the modifications are not detrimental to the author’s honour or reputation.
Nevertheless, the publisher’s right to make changes can be spelled out, limited or even excluded in a contract between the author and publisher. That’s why adding relevant provisions to their contract is likely the best way for authors to prevent modifications to their work. For instance, the contract could specify that any proposed changes must be submitted to the author for approval.