Yesterday the Rights Alliance, Denmark’s very effective anti-piracy organization, published a news item about an unusual piracy case implicating the moral rights of performers under the copyright law.
In May 2023, the Rights Alliance became aware of the appearance on Reddit of compilations of scenes from films featuring Danish actresses, showing the performers naked or in scenes of a sexual nature. When it attracted public attention, the Reddit site was made private, but the Rights Alliance was able to investigate and reported the matter to the National Special Crime Unit (the NSK). Yesterday, the NSK arrested a 39-year old man and charged him with infringing copyright by sharing clips from Danish films and television series in a private group on Reddit and on pornographic websites. Many of the actors concerned have expressed their hurt and anger at the distortion of their performances.
Normally copyright and related rights infringement concerns the economic rights of the artists and producers involved. However, related rights law also protects the performer against, in the words of the 1996 WIPO Performances and Phonograms Treaty (WPPT), “any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation”. The WPPT addresses aural (typically musical) performers. The 2012 Beijing Treaty on Audiovisual Performances covers performers in audiovisual productions.
Not all countries have signed up to these treaties, and in fact Denmark has not ratified the Beijing Treaty. However, Article 3(2) of the Danish Copyright Act (Ophavsretten) provides that the work “must not be altered or made available to the public in a manner or in a context which is prejudicial to the author's literary or artistic reputation or individuality.” Article 65(6) of the Act provides that Article 3 shall apply correspondingly to performers’ live and recorded performances.
Article 76 provides that it is an offence punishable by fine to infringe Article 65 intentionally or with gross negligence. If the offence is committed intentionally and in aggravating circumstances, the maximum sentence is a year and a half. If the offence is committed for unlawful gain or otherwise under particularly aggravating circumstances, the maximum sentence is 6 years’ imprisonment (Article 299b, Danish Criminal Code).
The Rights Alliance made the complaint on behalf of the national broadcaster DR, the Danish Actors’ Association, the Danish Film Directors’ Association and the producers whose films had been pillaged. However, it was clearly the actors who were the principal victims of the alleged offence (it is necessary to recall that there has yet to be a trial) and their interest was essentially personal, not economic. This seems to be a rare example where a criminal remedy for moral rights infringement is unquestionably proper.
Not all countries have criminal remedies for moral rights infringement – the UK, for example. Perhaps they should?
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