The Honour of the Dead – the Moral Right of Integrity Post-Mortem

Abstract

Can the honour of the dead be prejudiced? There is much philosophical debate about whether the dead can, or should, enjoy legal rights. Australia, like many jurisdictions, has apparently bypassed that debate and confers post-mortem moral rights on authors, which endure for at least 70 years after an author's death. The Australian moral right of integrity protects authors from certain conduct in relation to their copyright works, which is prejudicial to their honour or reputation. This deliberate conferral of a posthumous right ostensibly acknowledges that a deceased author's honour can be harmed. This article examines questions surrounding the apparent conundrum of posthumous prejudice to an author's honour. How can prejudice to the honour of the dead be established in the absence of the author, particularly if honour is interpreted subjectively? Do insuperable evidentiary hurdles render the posthumous honour limb of the moral right of integrity illusory? The article concentrates on Australian law, but engages in relevant comparative treatments, particularly with French, Canadian and United Kingdom law. Judicial consideration of moral rights under the common law is scant, particularly in Australia, and rarer still in a post-mortem context. However, the issues explored in the article are important, will inevitably arise for consideration and merit a comprehensive examination.