An inseparable duo between the imprescriptibility of the Law and the prescription of the action
The title of this analytical exercise highlights a distinction that, although probably subtle, invites us to reflect on whether there is moral damage in the strict sense and author damage; if the violation of a moral right gives rise to the presumption, ipso iure, of the incidence of moral damage; and, finally, on the difference between the timelessness and imprescriptibility of the moral right, and the prescriptibility of the action in civil liability derived from its violation, subject to common law.
As we know, moral damage, as opposed to material damage, is the injury to non-property property or rights that results in suffering, affliction or psychic, spiritual or emotional disturbance. The Pan-Hispanic Dictionary of Legal Spanish defines it as one that, without having a material character, “affects intangible goods or rights, causing affection or disturbance in the spirit or dignity of the person” (RAE, 2026. Pan-Hispanic Dictionary of Legal Spanish).
How linked is the moral right of an author to the notion of moral damage? Can we properly speak of moral damage of an author or, rather, can moral damage also be caused by the infringement of an author’s economic right?
As stated in article 17 of Law 65-00, it is up to the author to “claim at all times the paternity of his work and, especially, to have his name or pseudonym indicated”; “oppose any deformation, mutilation or other modification… when such acts may cause or will cause damage to your honor or professional reputation, or the work loses literary, academic or scientific merit”; and, finally, to deliberate and, in any case, decide whether his creation is kept unpublished or anonymous until his death “or after him, when so ordered by testamentary provision.” Disclosure, of course, includes the right to choose the way in which the revelation of the novel or painting is carried out, since, as LÓPEZ SÁNCHEZ (2017) rightly reminds us, “the failure or glory derived from the publication directly affects the author and only he has the right to resolve with sovereignty regarding something that will so essentially have an impact on his reputation” (p. 281). The same author states that, in practice, in the Spanish experience, violations of the rights of paternity and integrity are those that are most frequently prosecuted (p. 284).
Of course, the violation of a moral right not only generates moral damage for its owner, but can also entail material damage due to lost profits. In fact, in the field of intellectual property, economic damage does not usually manifest itself as consequential damage, but as lost profits. It is clear, then, that the same attack on moral rights can trigger material and moral damage: a broken or mutilated sculpture, for example, in addition to the economic loss due to the ruin of a unique specimen that can no longer be sold or whose sale would barely be possible at the price of a dead cow, will not fail to hurt the artistic sensibility of its author.
In our system, where legally it is not contemplated, in specific terms, an “authorial moral damage” that can only be experienced by the creators, with the exclusion of those who have received a concession or transfer of economic rights, the corresponding owner is liable—in origin or by derivation—“for the moral and material damages and losses caused by the violation of the right” (L. 65-00, art. 17, modified by L. 424-06). Ergo, moral damage is nothing other than that of common law, applicable when an infringement of an author’s moral right occurs, as well as an exploitation right. The above means that moral damage not only arises from the injury of non-property assets, but also from the injury to interests of a patrimonial nature, and that it can be suffered by both the original owner – the author – and a derivative one. The capacity to sue may correspond to the author, the derivative beneficiary and even, why not, to those holders of related rights to whom the law recognizes moral rights, in particular to performers, as can be seen from article 140 of L. 65-00.
In Dominican law, there is not only moral damage when an infringement of an author’s moral right occurs. The violation of property rights, regardless of whether the person who suffers it is a non-original owner, can also generate moral damage, translated into affliction, helplessness, depression, frustration, etc. However, it is fair to admit that, although the accreditation of property damage does not necessarily entail the existence of moral damage, the violation of a moral right leads to the presumption, almost automatically, of the existence of moral damage. That is to say, the infringement of a patrimonial right does not presume moral damage, but an offense that falls on a moral right contemplated in article 17 of L. 65-00 will allow it to be concluded, unless proven otherwise, that this injury entails moral damage.
However, the nature of moral damage requires some clarifications that are valid in any division of civil liability, and not only when it involves intellectual property. In the presence of a damage foreign to the notion of heritage, it does not seem entirely accurate to talk about compensating or repairing it. In fact, to compensate or repair is to fill a patrimonial void that has arisen due to the grievance. The purpose of the values obtained would be to restore a displaced asset, whether it be money that was possessed before the harmful event or a frustrated profit opportunity, under the scheme of lost profits. Thus, from this perspective, moral damage is not compensable nor, a fortiori, reparable, but compensable, through a sum intended to provide satisfaction to the injured party, not to cover a pecuniary deficit or to restore a transfer of assets.
In other words, while material or patrimonial damage can be repaired by returning the victim to the economic position he had before the punishable act, through a pecuniary equivalent that restores his patrimony to the initial situation, the same does not exactly happen with moral damage. Since it is not pecuniary, it cannot be susceptible of repair, but rather of relief. Hence, the compensation recognized for this concept does not fulfill a compensatory function: it is compensatory or satisfactory. As GÓMEZ POMAR says, while patrimonial damage causes a decrease in utility that is compensable with money or other goods exchangeable for money, moral damage, on the contrary, implies a reduction in the level of utility that neither money, nor goods exchangeable for it, can compensate (https://www.raco.cat › InDret › article › download). It is an immeasurable damage.
The author is a Judge of the Supreme Court of Justice
Master in Intellectual Property from the Carlos III University of Madrid
University professor: PUCMM, UNIBE, UCE, ENJ
