Contextual Infringement of the Moral Right of Integrity: A Taxonomy Across Jurisdictions

The moral right of integrity is frequently expressed in various jurisdictions to
prevent acts which materially distort, modify or even destroy copyright works.
However, international intellectual property law instruments also require their
many signatories to protect against harmful acts done “in relation to” works,
where the work may remain materially unaltered. This article is a detailed
exploration of this overlooked aspect of the integrity right as a means of controlling
contextual use of works without physically modifying them. The article outlines
the origins of this “contextual” integrity right, its broad scope, available defences,
and its theoretical rationale as a tool to protect an author’s message and prevent
associative taint of works. Referring to court decisions and numerous non-curial
examples, the article then categorises and explains the varied acts that may
constitute contextual infringement and generates a taxonomy for describing them.
This catalogue identifies potentially very broad and diverse infringement
circumstances and a variety of approaches across jurisdictions. It spotlights the
varied and conflicting stakeholder interests of author, alleged infringer and the
community, which are difficult to reconcile. The article’s conclusion explains how
contextual infringement of the integrity right differs from conventional infringement
based on material change to the work, and the potentially serious implications of
those differences. Cognisant of the potential harms of a contextual integrity right,
the article argues that it must be accompanied by a reasonableness defence to
optimally balance interests and prevent overreaching by hypersensitive authors.