Case 5 - The Right to be Named (Moral Rights)

Summary

A.1. CASE

Richard, a scientist with the renowned pharmaceutical company IPC, buys a computer programme, the top-selling product of IT-Company (ITC), which organises his article database. The programme has been written by the renowned Professor Higgens at Y-University. A specific algorithm, developed by him, is the core of the programme. This is widely known in the relevant community. In order to strengthen its marketing position, ITC markets the programme enclosing a licence agreement that obliges commercial users to cite the company’s name (ITC) when improving the programme; explicitly, any reference to Professor Higgens is forbidden. The contract between Higgens and ITC is silent about the original personality right of Prof. Higgens.

Does Prof. Higgens have the right to be named if Richard adapts ITC’s programme to the needs of pharmaceutical companies? Can Higgens claim an injunction if IPC markets the improved product making reference only to ITC?

A.2. COUNTRY REPORTS

(1) BELGIUM

I. Operative Rules

Yes, Prof. Higgens has the right to be named and can claim an injunction to stop marketing the improved product without mentioning his name.

II. Descriptive Formants

• – Article 6bis Berne Convention;

• – Software Directive 91/250/EC;

• – Articles 3 and 4 BSA (Arts. XI.296 and XI.297 BCEL);

• – Articles 1§2, 3, 86ter and 87 BCA (Arts. XI.165§2, XI.167, XI.334 and XVII.14 BCEL).

The starting assumption to solve the present case is that the algorithm developed by Prof. Higgens is protectable under copyright law, more particularly under the BSA, which implements the Soft ware Directive 91/250/EC (now Book XI, Title VI BCEL).

a) Does Prof. Higgens have the right to be named ?

According to Article 4 of the BSA (Art. XI.297 BCEL), the moral rights on computer programmes are regulated by Article 6bis of the Berne Convention. Article 6bis Berne Convention stipulates that: ‘Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation.’