© 2004 by Oxford University Press
Technological Creativity and Moral Rights : A Comparative Perspective
1 Professor of Law, University of Auckland. i.eagles{at}auckland.ac.nz 2 Senior Lecturer in Commercial Law, University of Auckland. i.longdin{at}auckland.ac.nz.
Computer software sits rather uncomfortably within the moral rights paradigm. In many jurisdictions information scientists and IT creatives (employees and principals alike) are treated differently from other authors when moral rights are legislatively allocated or judicially interpreted. The reasons for this are variously assumed to be cultural inappropriateness, technological impossibility or simply the fear that software creators will use any moral rights awarded to them to renegotiate economic rights which they have ceded away and thereby disrupt the orderly development of, and investment in, lucrative technology markets. The authors argue that if the test for the ascription of moral rights is indeed the embodiment of the author’s personality in a work then the case for excluding or limiting rights for software creators falls away. They also posit that if utilitarian justifications do support limiting the availability of moral rights, the focus should more properly shift to the level of creativity rather than the type of work.