August 17, 2000

Editor
American Writer
National Writers Union

To the Editor:

The problem with the commentary in the Summer 2000 issue, "Another View of 'Moral' Rights," from Australia's Max Barry, is that's it's factually inaccurate. I don't refer here to his positions on free trade, the WTO, etc. I may hold different opinions on those subjects, but he's certainly entitled to his.

However, he proposes that "moral rights" -- the term derives from a French law establishing the "droit morale" of makers of intellectual property, the right to have their work unaltered by others and to have their name attached to it, if they so choose -- are in fact requirements that are non-transferable, thus "prohibiting ghost-writing" and "prevent[ing] a writer from selling these right no matter how much he/she may want to."

This is ignorant nonsense. Of course there are ghost-writers in France and elsewhere, "droit morale" legislation notwithstanding. Of course writers are free to sign work-for-hire contracts in such countries; I've had such contracts sent to me for various European book projects in which I've been involved. (I choose not to sign them, and either negotiate a contract on my terms or else pass on the assignment; but such contracts remain legal and binding in those countries.) Of course a corporation can commission and publish texts by freelancers for its annual reports without putting their bylines on them. Of course a writer can choose to publish anonymously, or under a pseudonym. Etcetera, etcetera.

So Max Barry is talking drivel here. Moral rights don't "limit the ability of [the NWU's] non-American members to profit from their own work." Moral rights simply ensure that writing or other intellectual property for which the author holds copyright can't be altered and published without his or her permission and without his or her byline attached -- and that, even if copyright is transferred to another party, the text can't be altered and published under the author's byline without approval.

Which means that the pro-labor op-ed piece you wrote can't appear with someone else's name on it as author, and (even if done as work-for-hire) can't be revised into an anti-labor statement bearing your byline -- without your written permission. I can't imagine a writer, regardless of his or her politics, who doesn't consider that a good thing.

The fact that Barry doesn't understand this certainly suggests a need for increased NWU tutorial activity down under. But here's the more urgent problem: Some eight inches of page space in our journal went to promulgating his fundamental error and disseminating it among the membership. This letter of correction will take up about the same amount of space -- and will not necessarily reach all the readers now misinformed about moral rights. So what we've achieved is the pointless waste of some 16 inches of precious space in American Writer, and the confusion of some percentage of its readership.

A recommendation: Since we can't expect AW's editor to have expertise on all such matters, any letter purporting to present facts about copyright law, contract law, and other such legal issues should be reviewed by the NWU's experts on such areas. If they find the letter's assertions in that regard basically accurate, then the letter gets published. If it's inaccurate, then it gets kicked back to the sender for correction and revision, with appropriate reference to sources for correct information on the subject.

That's not censorship -- it's elementary fact-checking. I suggest it as a necessary policy for our journal, to prevent people like Barry embarrassing themselves, and us, in the future. And I certainly think that this policy should be instituted starting with this letter of mine.

Regards,
/s/ Allan Coleman
NY Local

This is the complete text of a letter published in a shortened version in American Writer 18:4 (Fall 2000), p. 4. I was responding to a letter from Max Barry of Australia on the subject of "droit morale" or "moral rights," which appeared in the Summer 2000 issue of this house organ of the National Writers Union.