Attribution Right? In a Letter of Recommendation?
Let's start with an admission: this Kat has always found moral rights a bit hard to grasp. Don't get me wrong--I am all in favour of protecting one's personhood and reputation. But the notion of a creator's personality being a priori intertwined with his work is simply too metaphysical for me, I guess. No matter--the law is the law, and where the local copyright law includes protection for moral rights, this Kat has done his best to represent his clients' interests to the full in this regard.
Still, the application of moral rights protection in diverse contexts led me to think about the issue in a perhaps an unconventional setting--letters of recommendation. Thus, this Kat was recently asked to write a letter of recommendation for a young lawyer with whom he had worked. "My pleasure", I replied and I then set out to draft such a letter. Since each request for a letter of recommendation is different, the letter had to be carefully crafted so as to balance the dignity of the lawyer who is being recommended, on the one hand, and my professional reputation, on the other. It is no surprise, therefore, that such a letter takes this Kat multiple hours to write.
So far, so good. But what happens if, instead of drafting each letter anew, this Kat simply looked for forms of letter of recommendation via an internet search. For purposes of discussion, let's say that he finds such a site-- [a quick search on the internet indicates that there do appear to be such sites.] The hypothetical site is solely the work of ABC, who has taken upon himself to draft all of the various forms of letter of recommendation that are available for download from the site. For payment of a fee, I can download a form of letter of recommendation and use it as I wish. Let's assume that the Terms of Use permit me only one licensed use per form per payment. The Terms of Use are silent with respect to ABC's moral rights with respect to the letter of recommendation that I have selected.
Let’s assume that I simply reproduce the entire text, augmented only by filling in the correct names and addresses and dating the letter. Do I have an obligation to attribute ABC as the author of the letter? In jurisdictions that require that the author assert his right to be identified as author of the work, the answer would seem to be clear--no assertion was made by ABC. But there are jurisdictions that provide for moral rights protection, and which do not require that the author assert his rights in this regard. As a matter of moral rights law, what is my legal obligation here? Still, the application of moral rights protection in diverse contexts led me to think about the issue in a perhaps an unconventional setting--letters of recommendation. Thus, this Kat was recently asked to write a letter of recommendation for a young lawyer with whom he had worked. "My pleasure", I replied and I then set out to draft such a letter. Since each request for a letter of recommendation is different, the letter had to be carefully crafted so as to balance the dignity of the lawyer who is being recommended, on the one hand, and my professional reputation, on the other. It is no surprise, therefore, that such a letter takes this Kat multiple hours to write.
So far, so good. But what happens if, instead of drafting each letter anew, this Kat simply looked for forms of letter of recommendation via an internet search. For purposes of discussion, let's say that he finds such a site--
It makes no practical sense that the letter of recommendation should attribute ABC as the ultimate author of the letter. But why should this be so as legal matter? Is there a principle that moral rights attribution should be given only in circumstances where it is reasonable? If so, how does one identify such circumstances? Or perhaps it is possible to claim that there is a constructive waiver given by ABC to anyone who licenses one of his forms of letter of recommendation? Or is there some other rationale?
Pushing forward with the hypothetical, let us assume that I in fact use the form of letter of recommendation several times, in breach of the Terms of Use, and that this becomes known to ABC. He then files an action against me, claiming breach of contract, copyright infringement and violation of his attribution right. Each claim will allow ABC separate relief, limited only by the prohibition against double recovery for the same harm. Breach of contract against this Kat--ok, liable as charged. Infringement of copyright against this Kat --ok, liable as charged. But what about that claim for violation of ABC's moral rights. The claim just seems inappropriate. But why, exactly? This Kat does not have a ready answer.