The Author’s Right of Integrity in Public Contracts in Estonia Based on Architectural Work

Abstract

The paper presents analysis of whether an author’s moral rights are transferable or licensable in public contracts. At present, the European Union lacks a unified approach to regulating intellectual-property rights in public procurement: its public-procurement directives leave open the option of assigning these rights to a particular contracting entity and do not set minimal or default conditions for handling them in case the public contract does not specify intellectual-property rights’ allocation. The paper delves into the question of whether moral rights are transferable/licensable and of how moral rights should be regulated in public contracts in Estonia through the lens of analysis based on legal literature. Specific attention is given to case law on moral rights in Germany, France, and Spain, in aims finding a mechanism for moral rights’ regulation that is suitable for the Estonian setting. These first steps of examination reveal that the essence of moral rights precludes them being transferable since moral rights are bound to the personality of the author. Initial analysis shows also that moral rights in Estonia are only partly licensable, with only those moral rights that overlap the author’s economic rights proving licensable, while the rights connected to the author’s personality are not subject to licensing. For these reasons, courts need to weigh how authors might exercise their moral rights such that any transfer of their those rights cannot enable authors to interfere with the exercise of the economic rights. This entails limiting the exercise of moral rights, a matter that merits deeper examination.