Moral Rights and the Director's Cut

Moral rights in the UK have always been the poor relation of economic copyright. The CDPA 1988 introduced them late, narrowly, and with carve-outs that reflect the weight of the broadcasting and publishing lobbies in the late 1980s. Nowhere is that legacy more visible than in the regime governing the director's right to object to derogatory treatment under s.80.

The right itself is straightforward enough. Section 80(2)(a) defines treatment as any addition, deletion, alteration or adaptation. Section 80(2)(b) defines "derogatory" as treatment that amounts to distortion or mutilation of the work, or is otherwise prejudicial to the honour or reputation of the author or director. The text is faithful to Article 6bis of the Berne Convention.

The exceptions do most of the work

Section 81 contains the exceptions, and they are not modest. The right does not apply to anything done for the purpose of any of the following.

• Avoiding the commission of an offence.
• Complying with a duty imposed by or under any enactment.
• In the case of the BBC, avoiding the inclusion of anything offending against good taste or decency.

Section 81(6) goes further still. Where the work is a film, the right is not infringed by any modification made for the purpose of fitting the work to a broadcast or cable programme, provided a sufficient disclaimer is given.

The cumulative effect is that a director's right to object to a derogatory cut survives only at the margins. Most editorial decisions a broadcaster might make for time, classification or taste are pre-cleared by statute.

The director's cut as remedy

This is why the "director's cut" is, in practice, the only effective remedy. Not a legal one, but a contractual and reputational one. A director who reaches for s.80 is reaching for the wrong tool. The right one is in the negotiation of final-cut clauses at the time of engagement, and most directors do not have the leverage to win them.