In Mexico, droit moral is attached to the author and is inalienable, does not expire, cannot be waived and cannot be encumbered. The author and his/her heirs can enforce this right.
Even though the right is inalienable, this does not mean that it cannot be exercised. Therefore, droit moral can play an important part in transactional copyright matters.
As an example, the patrimonial right of transformation is closely related to the droit moral of integrity. The droit moral of integrity could be used as an argument against the transformation of a work, even if it is done with permission. However, transformation of a work is allowed through the assignment or licence of the corresponding patrimonial right and it should be done, without facing the risk of an opposition based on the droit moral of integrity.
Therefore, the droit moral of integrity can and should be part of drafting agreements of such a nature, regarding its exercise, the assignee or licensee can have legal certainty within the framework of the agreement.
The droit moral of integrity, cannot be waived, but it can be legally used by the author and like any other right it must be enforced with responsibility. The fact that a droit moral may be legally part of an agreement does not imply a waiver or assignment, but neither should be a mechanism that enables the author to act against the exercise of free will.
An agreement that has the patrimonial right of transformation as a subject matter must address the exercise of the droit moral of integrity expressed as an assertion under the principle of good faith, in relation to the doctrine of estoppel.
Droit moral should not prevent the lawful acquisition and enforcement of patrimonial rights.
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| Mauricio Llanes |
Olivares
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