Copyright, Moral Rights, and Subjective Authorial Harm: CIPIL Evening Seminar

Speaker: Associate Professor David A. Simon, Northeastern University School of Law

Biography: David A. Simon, J.D., LL.M., Ph.D., is an Associate Professor of Law at Northeastern University School of Law, where he teaches courses on tort law, administrative law, and drug & device regulation. Professor Simon’s research focuses on innovation in healthcare, with an emphasis on drugs and devices. His work has appeared or will appear in a variety of publications, including the Texas Law Review, the Boston College Law Review, the Emory Law Journal, the Georgia Law Review, the Oxford Journal of Legal Studies, the Yale Journal of Law & the Humanities, the Journal of Law & the Biosciences, JAMA, Nature Biotechnology and the Journal of Law, Medicine, & Ethics. A complete list of Dr. Simon’s publications is available on his CV . Professor Simon is the Principal Investigator on the Project on Medical Device Safety and co-director of the Amy J. Reed Collaborative for Medical Device Safety, funded by Arnold Ventures. He is also a member of the UIUC CLASSICA research team, a project funded by the European Union. He has previously served on the faculties of Harvard Law School, George Washington University Law School, and the University of Kansas School of Law. During histime at Harvard Law School, he led a three-year project at the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics dubbed Diagnosing in the Home: The Ethical, Legal, and Regulatory Challenges and Opportunities of Digital Home Health, and funded by the Gordon and Betty Moore Foundation. Professor Simon is also a founder of two nonprofits—Harmed Americans for Reform in Medical-Device Safety and Project TCF20—and a practicing member of the Illinois and Massachusetts Bars.

Abstract: Copyright law grants authors special non-economic “moral rights” to prevent others from using their works in certain ways. In their strongest “solipsistic” form, moral rights give the author the absolute power to prevent any use that offends her sensibilities. While the solipsistic view of moral rights exists in only a few countries, the sentiment underlying it is pervasive in moral rights theory: an author’s claims are superior to all others because only the author knows when harm occurs, regardless of others’ views. In other words, certain uses of works result in the author experiencing harm that no one else can experience and that does not depend on what others think. This Article asks and evaluates the following question: can harm based only on the author’s subjective experience justify solipsistic moral rights?

It argues that the answer is probably not—and that, if supported, solipsistic moral rights will be tightly limited. Drawing on literature in science fiction and philosophy, this Article. contends that the best justification for the monastic view is also the most implausible: authors have moral rights only when another’s use causes the author to experience an inconsistency between her perceived use of the work and her memories of creating the work. In short, an author’s rights are contingent on her ability to remember creating her work. This is the best justification because the author’s memories of creating the work satisfy all the requirements for authorial harm: it identifies discrete psychological states that are tied directly and only to the author’s acts of creation, independent of others’ perceptions. It is the least plausible, however, because it conditions important rights on one’s ability to remember past actions. Despite its seeming implausibility, the author’s memories of creation provide the best support for grounding monastic moral rights. As a consequence, the case for monastic moral rights, if it can be made, is tightly limited to cases where another’s use of an author’s work causes a negative psychological response directly tied to the author’s memories of creating the work.

For more information see:

https://www.cipil.law.cam.ac.uk/seminars-and-events/cipil-seminars