Dead loss: Damages for posthumous breach of the moral right of integrity

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Abstract

This article considers whether damages may be awarded for the posthumous breach of an author's moral right of integrity, which endures for 70 years post-mortem and, in many common law countries, protects authors against certain conduct in respect of a work which is prejudicial to their honour or reputation. While remedies for infringement ostensibly include damages, this article interrogates whether death defeats the moral right by denying significant damages due to a number of obstacles, principally the apparent conundrum that the dead cannot suffer loss. Has Parliament legislated a puzzle by giving the dead rights that are practically ineffectual? The problem is significant because nonnominal damages mark and deter wrongs, justify the expense and risk of litigation, and support the role of posthumous moral rights and remedies in protecting the public's interest in cultural heritage. The article explains the impediments to posthumous damages awards and advocates reform to facilitate them and enhance the efficacy of post-mortem moral rights.
Original languageEnglish
Pages (from-to)240-287
Number of pages48
JournalMelbourne University Law Review
Volume40
Issue number1
Publication statusPublished - 2016

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