Rocherieux Julien
Intellectual Property (LW 556)
Dissertation
Course Convenor: Alan Story
April 2002
The future of moral rights
5100 words
1
The justification of moral rights, as understood on the continent, comes from
the notion that the work incorporates the personality of the author. This
philosophical conception and its juridical consequences are considered as
economically inefficient, politically protectionist and philosophically mistaken
by the supporters of the copyright system.
All those objections can, however, be rejected. Thus, the purpose of this
dissertation is to demonstrate that moral rights have a future outside the
traditional continental countries. Indeed, “new” justifications prove that moral
rights are useful in a modern economy and improve the copyright system,
which is unable to protect efficiently the authors. Even if recent legislations in
common law countries seem to be only “window dressing” and if international
dispositions are disappointing, the struggle continues for the artists to have the
value of their work recognised. Nonetheless, extension of moral rights is only
possible if a realistic and moderate approach is taken, far from the “absolutist”
speech of the continental doctrine.
2
“Everyone has the right to the protection of the moral and material interests
resulting from any scientific, literary or artistic production of which he is the author.”
This article 27 of the Universal Declaration of Human Rights could be considered as
the universal consecration of the moral rights or of the balance between “moral” and
“material” interests. However, reality is far from this formal acknowledgement.
Moral rights, which can be broadly defined as the non-pecuniary rights of the author,
have been recognised in continental Europe since the 19th Century. One century after
the British Statute of Anne of 1709, which enshrined the protection of copyright
within the laws of England (under the lobbying of the London publishers), a French
law of 1793 recognised the concept of the right of the author as the “most sacred right
of man”. Nevertheless, it is during the 1920s that several continental European
countries began to adopt moral rights laws and, at the 1928 Rome conference for the
revision of the Berne convention, proposals were put forward for the recognition of
inalienable rights of paternity, integrity and disclosure. Far from being a “landslide
victory” of the continental countries, the compromise draft adopted (which
subsequently became the article 6bis) constitutes the first stage of one of the deepest
conflicts in Intellectual Property.
The question of whether common law countries will in the future really adopt moral
rights (or whether continental countries will have to give up those rights) is highly
controversial and implicates economical, philosophical and political consequences.
The purpose of this dissertation is clearly to take part in this conflict by demonstrating
that moral rights have a future – not only because it is theoretically just and desirable
(I), but also because it is practically possible (II).
3
I Theoretically just and desirable
A) The traditional philosophical justifications
The continental doctrine considers that the work incorporates the personality of the
author. Therefore, when something happens to the work, that constitutes an attack on
the person of the author himself. This philosophical axiom, which has been especially
developed by Kant, is the basis of the whole theory of moral rights and makes it clear
that the essential nature of moral rights lies in their independence from economic
rights. The work is considered not as a common object but as the materialization of
the freedom and the creativity of the author1.
This special protection is also traditionally explained by the important contribution to
society made by artists, which otherwise would often been unrecognised. A writer
who feels secure that he will receive some credit for his work, or an artist who can
rely on the continued existence of his sculpture, may find this background knowledge
more conducive to creative activity. Indeed, for some authors, the non pecuniary
reward, such as recognition and hope for immortality through preservation of the
work, may be more important than immediate material gain2. It is interesting to notice
that such arguments strongly resonate in the copyright heritage since they also mean
that moral rights will improve the climate in which authors create and that those rights
are a just reward for skill, labour and social “goodwill” (which are the main
arguments for copyright). It is also relevant to notice that the purpose of Anne’s
1
2
see the concept of “recognition” for Hegel or in English philosophy the role of Labour for Locke
J Ginsburg, Moral rights in a common law system, ELR, 1990.
4
statute is “for the encouragement of learned men to write useful books” (and not to
improve the profitability of the publishing industry) or that the progress of learning is
achieved in the US constitution by awarding copyright not to investors but to authors
(art I s VIII). The “common law paradox” is to recognise on the one hand the role and
specificity of authorship and to refuse on the other hand, a full protection which
would embody this specificity.
The Anglo-American doctrine often considers that moral rights are an excessive
regard for the dignity of the author – the right to do what one wishes with one’s own
property is also important3. The same argument of coherence could be objected to this
doctrine: if those authors think that property gives an absolute right to the owner, then
there is no reason to respect intellectual property at all, and especially no reason to
respect copyright. It is a contradiction to express that moral rights are an obstacle for
freedom but not copyright! Another argument is to say that the author himself in the
French tradition is not free to sell those rights and waiver clause are in principle
prohibited (the French doctrine explains traditionally that it would be a “moral
suicide”4) by contrast with the copyright which can be sold by the author. This French
position is based on the idea of “ordre public”: moral rights, like human organs or the
right to vote cannot be sold. Nonetheless, courts are flexible and consider that this
protective disposition must not be a burden on the authors. Therefore, precise and
limited waiver clause are in fact accepted5 (what the Anglo-American doctrine rarely
notices in its critics…). Similarly, where a work is to be adapted from one medium to
another, and certain changes are therefore inevitable, an implied waiver has been
recognised by the courts. Moral rights are not contrary to freedom of authors. They
have even for purpose to protect their freedom. The best example is given by the
3
Newman, Rights, freedoms and phonograms, CLSR, vol 13 (2 parts), 1997
CA Paris, 1er Ch, 14/06/1950: D1951, p9, note Desbois.
5
Cass 1er Civ, 17/03/1958: JCP 61 1998,II,10148, note Piedelievre.
4
5
divulgation right (“droit de divulgation”): only the author can decide when his work is
finished and can be made accessible to the public.
B) An answer to common law objections
The conflict is not only philosophical, it is also economic. Common law countries
consider that their record or film industry could be severely handicapped by wellintentioned but essentially harmful legislation. Moral rights are clearly seen as an
economic burden. Simon Newman6 develops three main arguments to support this
idea:
-
the prohibition of waiver clauses means more work for continental record
companies, in that they must seek authorial consent for adaptations more
frequently, and thus incur greater expense – it is all the more expensive as it is
very rarely the intellectual creation of a single singer/songwriter-producer, but
more commonly an ensemble work in which a good number of people may be
able to claim copyright.
-
The way in which the integrity right is applied could make the adaptations
simply impractical. This would appear to be of little benefit to anyone – the
recording and publishing companies lose the opportunity to market a new
product; song authors are unable to make cover versions, and the original
composer finds his integrity right to be economically worthless.
-
More generally, moral rights have a deleterious effect on the continental
entertainment industry. Despite a strong cultural basis, France produces far
less television programming than the UK, a nation of similar size and
6
Newman, ibid, footnote 3
6
development. The French film industry, despite state support, produces few
economic winners.
Another common argument could be added: moral rights have very few economic
implications. They cannot be easily evaluated in economic terms or freely
transferred. That is why they must be ignored.
Those four arguments are not really convincing. First, concerning the waiver
clause, the increase of expense is a very small amount as compared with all other
costs related to the work – realisation, marketing…etc. It is ridiculous to argue
that Vivendi-Universal (which is… French) could face financial difficulties
because of moral rights. By contrast, this necessary “dialogue” between authors
and investors (concerning their integrity right especially) develops a permanent
co-operation which is not deleterious to business dynamism at all, but which
improves fair relationship between them.
Secondly, it is true to argue that the integrity right has to be flexibly applied. This
point has already been underlined and the application made in the “continent”
renders adaptations easily practicable. The French supreme court (“Cour de
cassation”) explained in “Le dialogue des Carmelites” case7 that an adaptation
does not breach moral rights if it follows the “spirit” of the original work.
Otherwise, the consent of the author has to be given. The area in which problems
could arise was software because of the high number of authors. To prevent those
conflicts, the French law of the 10th May 1994 limited the integrity right in this
kind of work. The common law doctrine has celebrated this law as a victory of
copyright; it could also be considered as a mere adaptation of the scope of moral
7
Cass Civ 1ere, 22/11/1966, D 1967, J, 485, note Desbois.
7
rights and as the proof that a pragmatic point of view is more useful for the future
of moral rights than a dogmatic application.
The third argument is a caricature. There is no demonstrated link between
copyright and economic success or between moral rights and failure. The
economic effect of moral rights is not significant and differences between
countries have to be explained by other factors (fashion, creativity, role of the
“majors”, language…etc.).
The fourth argument is a paradox. It is difficult to argue on the one hand that
moral rights have no economic consequences and on the other hand that they
constitute a burden. Besides, it is not because a right has a weak economic impact
that it must be ignored. A strict utilitarian reasoning can lead to unfair and not
desirable consequences: a large majority of Human rights (right to vote, to have a
fair trial…etc.) does not have a clear “economic value” but constitutes the basis of
our democracies.
Even if moral rights had a cost, those expenses are compensated by the advantage
they confer to the market. Indeed, moral rights help assure the public the works it
has come to associate with a particular author, are that author’s genuine product.
D. Vaver writes8 that a book labelled “by Stephen King” is different from a book
labelled “by Enid Blyton”. The attributions function like trade marks: they tell the
public (and the market) that each book has particular qualities. Attribution and
integrity rights therefore help to bring the author’s name before the public and
help to assure that the work is an authentic product, vouched for by the author9.
8
D Vaver, Moral rights yesterday, today and tomorrow, International Journal of law and Information
Technology, 7(3), 270-278, 1999.
9
ibid
8
The second type of argument is political. With regard to GATT, it is seen as vital that
France and other countries retain their moral rights laws, because they are an
important weapon in the struggle to protect the expression of national identity,
something that is threatened by the US approach to trade10. In other words, moral
rights are protectionism. Today, the struggle concerns the respect of moral rights in
the film industry. Valenti, president of the Association Picture of America, explained
to the American congress that moral rights are a “virus” which could destabilise the
American system of production. Claude Brule, president of the French “Societe des
auteurs et compositeurs dramatiques”, answered by holding that copyright is a real
confiscation. Behind this tension, it is not clear that a link can be drawn between
moral rights and protectionism. Moral rights have merely become a “symbol”, a stage
in the cultural “opposition” between France and the USA.
Even if it can be proved that continental countries use moral rights as a “protection
shield” (how?), can common law countries reproach this attempt of cultural
preservation? There is a public interest in having a continuous record of one’s culture.
This interest could be pursued by those in government whose brief is the preservation
of the country’s cultural heritage; but, in an era devoted to less government, this goal
may equally be pursued by giving authors and their estates some control over their
works11.
The status of moral rights as a ground for action in the UK came only with the 1988
Copyright Act. Previously, moral rights in copyright had received limited protection
through a variety of measures and principles laid down by the courts. The third kind
of argument is directly linked with this observation: moral rights are already well
10
11
Newman, ibid, footnote 3
D Vaver, ibid, footnote 8
9
protected by common law principles; therefore, a new legislation would be useless
and dangerous. Tort law (principally defamation and passing off) and contract law are
thus regarded as a simple and effective protection for authors.
This argument is interesting because it does not deny the importance of the protection
of moral rights and even recognises indirectly first the fairness of those principles and
then the compatibility between moral rights and the common law system. However,
an analysis of the previous protection in the UK and USA makes apparent a weak
protection due to a purely economic reasoning.
For example12, in Humphries v Thompson13 a jury found an authoress to be defamed
by a newspaper serialisation of her story in which the names of all the characters were
changed, passages of description were omitted and new text was added, and in
particular, 'curtain' raisers were inserted at the beginning and end of each episode to
whet readers' appetites. The plaintiff claimed the serialisation was injurious to her
moral and literary reputation. The jury found that the plaintiff's reputation had been
injured and awarded damages. In another case14, Archbold v Sweet15, the author of a
legal textbook, after preparing a second edition, sold the copyright in the work to a
publisher. The publisher later published a third edition of the book edited by a third
party in which there appeared numerous errors and mistakes. The question for the jury
was whether the third edition would have been understood to have been prepared by
the plaintiff. If so, the errors had “injured his reputation”. The verdict was given for
the plaintiff. This case was typical in that the damage was done not so much to the
plaintiff himself, but to his reputation, or perhaps to the goodwill he had generated.
12
R Durie, Moral rights and the English business community, Entertainment law review, 1991
[1905-1910] MCC 148
14
R Durie, ibid
15
[1832] 172 ER 947
13
10
Similarly16, in the well-known case of Frisby v BBC17, the plaintiff was commissioned
by the BBC to write a television play. The contract incorporated a provision that 'The
BBC shall not, without the prior consent of the writer ..., make any structural
alteration as opposed to minor alterations to the ... script.' The BBC wanted to delete
one sexually explicit line which the author considered to be of basic importance to his
play. The plaintiff succeeded because the BBC had no right of adaptation. All these
cases demonstrate some basis for the long-standing assertion by the British
Government that it had given authors something like a right of integrity.
But too often such protection was either disorganised, or coincidental to the real point
at issue - the “right of personality”.
Focusing more specifically on the rights embodied in Article 6bis of the Convention,
it was therefore hard to admit that the UK's obligations under Berne Convention were
fulfilled – this point was the conclusion of the Whithford Committee. As regards to
the right of paternity, the author was left to look after himself. In other words, he had
to negotiate a contract with his publishers enabling him to have his work attributed to
him. He could prevent the use of another's name under the statutory duty not to
attribute falsely under section 43 of the 1956 Act, but could not claim the positive
right to have his own included. The right of integrity existed only insofar as an
author's honour or reputation was damaged, usually within the parameters of the torts
of passing off or defamation18.
In the USA, it is still argued that the provisions of common law or other existing texts
are sufficient to fulfil the requirement of article 6bis of the Berne convention. The
courts in this country also use tort law (like the “tort of false light” developed by the
16
R Durie, ibid
[1967] WLR 1204
18
R Durie, ibid
17
11
Court of California in Stevens v National Broadcasting company19 concerning
advertisements during a movie). It is notable that US courts have been very
“imaginative” to protect moral rights principles. The concept of “unfair competition”
is regularly a ground for action where a modification injures the reputation of an
author. Another ground is provided by the 1946 “Landham Act”. The most famous
example20 is a case involving the British comedy group 'Monty Python'21.
The BBC had licensed 90 minutes of 'Monty Python's Flying Circus' programmes for
televising in the US by the American Broadcasting Company (ABC) which
determined that some of the Python material was indecent, inappropriate, and
incomprehensible to American audiences; accordingly, it eliminated some 24 of the
programmes' 90 minutes. Python prevailed on two grounds. First, with respect to the
copyright infringement ground, the Court relied on Python's retention of the right to
make changes in the programmes. Even if ABC had (as it believed) received from the
BBC the right to edit the programmes, the BBC would have been liable for contract
and copyright violations because the BBC had no basis for selling rights to which it
was not legally entitled. Second, with respect to the trade mark claim, the Court held
that presenting a mangled version of Monty Python's programmes as the work of
Monty Python was to give a false impression of the work that Python created, in
violation of section 43(a), which prohibits false representations.
Although Python remains the leading case on achievement of moral rights goals
through the alternate routes of existing copyright and particularly trade mark
doctrines, this approach is not only circuitous, but incomplete. Many creators are not
copyright owners. Moreover, section 43(a) of the trade mark US law is about labelling
and not about integrity. It can be used to address integrity only to the extent that an
19
148 US PQ 755 (Cal Super CT LA Co 1966)
J Ginsburg, ibid.
21
Gilliam v ABC, 538 F 2d 14 (2d circ1976)
20
12
element of falsehood is contained within the representation. No trade mark claim
would exist had the alteration been disclosed. If the public is not deceived, there may
no longer be a trademarks violation.
Another ground is provided by the “Visual Artists’ Rights Act 1990”, which affords
explicit rights of attribution and integrity to a narrowly defined class of virtual artists.
This test proves that common law principles were not sufficient and that a real
protection of moral rights needs specific, complete and precise dispositions,
protecting not only a “product” or a “reputation” but merely an author.
A fourth argument comes from the difficulties existing for common law jurisdictions
to valuate moral rights22. Actually, this argument is more an explanation of the
reluctant position of the common law courts dealing with moral rights. Those
difficulties are linked with the reasoning which consists in assigning “value” to rights,
obligations or concepts like “reputation” or “paternity”. R Duries23 points out three
main “difficulties” for the courts:
First, damages are standard remedies for the tort of passing off and defamation. They
are also the usual remedy to compensate a breach of moral rights. However, it is
difficult to award a just amount. No real reasoning in this area is available. The judges
have to take into account several factors: the nature of the distortion or modification,
the reputation of the author…etc.
The second problem, linked with the first one, comes from the lack of knowledge and
the impossibility to anticipate the future value of a work. The commercial
unpopularity of the works of artists such as Van Gogh and, in the early past of his
career, Picasso, would indicate that an infringement of, say, the right of integrity,
22
23
R Durie, ibid
ibid
13
would have been of scant value, since these artists at that time had very little
objectively recognised reputation. In other words, the “value” of moral rights differs
from any period of time to another and common law judges are not accustomed to
evaluate the merits (and future value) of a work of art.
Difficult questions of fact will also arise. For instance it will often prove hard to
differentiate parody from distortion. Irreverence walks hand in hand with the freedom
of expression and is essential to art – especially modern art, like pop art and
surrealism which frequently use the well known paintings and transform them.
All these arguments have to be taken into account to understand the jurisprudence of
the common law courts but they are not convincing. The lack of knowledge can be
limited by the intervention of experts. Specialists have an important role in other areas
of intellectual property (like patent law e.g. ): why not in the valuation of moral
rights? Secondly, the question of placing “value” on moral rights has
characteristically been dealt with in robust terms in civil law countries. It is time for
the common law courts to follow this way, by using their discretion to effectively
protect authors.
14
II Practically possible
A) How to interpret the recent changes
For fifteen years, several common law countries have adopted a special legislation
dealing with moral rights: United Kingdom in 1988, United States in 1990 but also
Ireland or Australia. The main purpose of those statutes is to be in conformity with the
international minima of the Berne convention. It is clear now that those texts should
not be regarded as the victory of the continental approach and the end of the
“conflict”. First, because the Berne convention was a compromise which does not
entirely reflect the continental approach (only the rights of paternity and integrity are
protected by the convention); then because this legislation protects moral rights badly.
That is particularly true in the UK, where the CDPA 1988 is considered as a poor
reflect of the convention24. D Vaver argues that this text is even contrary to the
international requirements. Indeed, the attribution right is not infringed unless it has
first been asserted in writing – despite the clear article 5(1) of the convention which
states that “the enjoyment of author’s rights shall not be subject to any formality”.
Moreover, the attribution right does not apply to a wide class of work: computer
programs, newspapers, encyclopaedias, works produced with the authority of the
copyright owners where copyright originally vested in an employer… Integrity right
is also excluded from a wide range of publication (newspapers, magazines…etc.). The
UK pro-moral rights doctrine is therefore very harsh with this text:
24
D Vaver, ibid, footnote 8
15
“If many of the CDPA moral rights provisions seem cynical, or at least halfhearted, that may be because their drafters seem to have lacked real conviction
in the desirability of moral rights […] The debates in the Houses of Commons
and Lords suggest that the law's drafters were primarily concerned to preserve
the interests of exploiter groups against moral rights encroachments, rather than
to recognise and enforce authors' interests. The resulting legislation reflects that
ambivalence25”.
US statutory protection is also limited. The Visual artists Act does not protect all
authors. “VARA” gives an artist the right to claim authorship of his work and
prevents the intentional distortion, mutilation or other modification. If the work is one
of “recognised stature”, the Act also prevents its destruction. However, VARA covers
only single copies or limited edition visual or sculptural works and photographs
produced for exhibition purposes. There are also significant exceptions to VARA and
excluded from its protection are “works made for hire”26.
Another argument to support this pessimistic interpretation of the recent changes is
litigation. Common law “antipathy” to moral rights is not confined to the UK courts27.
For instance, no Canadian case on the moral rights provision was reported for nearly
half a century and after that moral rights claims have been upheld only six times. In
the USA, Carter v Helmsley-Spear28 was the first case to be decided under the
VARA. By reversing the district court’s decision, the US Court of Appeals for the
Second Circuit narrowed the scope of the protection of the Act. This decision,
considered as a symbol, demonstrates the reluctant position of the US courts
25
J Ginsburg, ibid.
M Spencer, Moral rights for the US takes a hit in the second circuit, ELR, 5, 1996
27
See for instance Tidy v Trustees of the National History Museum (1995) or Pasterfield v Denham
(1999)
28
M Spencer, Moral rights for the US takes a hit in the second circuit, ELR, 5, 1996
26
16
concerning moral rights. According to the pro-moral rights doctrine, it also means the
lack of public support to artists.
A third argument is given by international conventions. The Berne convention’s moral
rights provisions are specifically excluded from the TRIPS agreement (art 9):
“ …Members shall not have rights or obligations under this agreement in respect
of the rights conferred under art 6bis of that convention or of the rights derived
therefrom”.
This article prevents moral rights from beneficing from the TRIPS protection – which
is the “powerful” WTO protection29. In fact, it reflects the “true” purpose of the
TRIPS agreement: protecting not the authors but the “majors”, not the work or the
creativity but the product and the investment. Also, it reflects the American purpose
in this negotiation: Intellectual property represents for the US a huge market for
export. It is clear that the US balance of trade needs this market and that the US
government wants at all cost to preserve the American companies of this sector.
However, the USA have to face the pressure of their authors (the “guilds” of authors)
and take a real risk. Not the risk to be excluded from the Berne’s convention because
such an (fanciful?) exclusion is in the short term not politically possible but the risk to
transform this problem in a new conflict between America and Europe. In this case,
the “indirect costs” could be more important than the weak direct costs of moral
rights…
Nevertheless, Europe does not have a common position on this topic. The European
commission used to have a vague position because moral rights were not considered
as an important stage to “unify” the European market. This position is now changing,
29
MC Piatti, la non inclusion de l’article 6bis de la convention de Berne: une remise en cause du droit
moral?, Petites Affiches, 5, 11/01/1995.
17
firstly because the European Commission points out the necessity of a harmonisation
in this area of law and secondly because the European court of Justice has explicitly
recognised moral rights30. The advantages of European Union legislation are clear:
firstly, EU-wide harmonizing legislation will provide a common and efficient
protection for authors; secondly, this legislation is often noted for its clarity,
especially when compared with the often convoluted syntax and impenetrable details
of some UK parliamentary draftsmanship. The next stage is therefore to convince the
UK of the interest of moral rights.
Besides, an interesting thesis has been developed by Bernard Edelman concerning the
historical evolution of moral rights31. This thesis starts with the analysis of the French
jurisprudence in the beginning of the 19th Century. No moral right was recognised
and the situation was clearly comparable with the copyright system. Then, the courts,
by “equity”, developed doctrines to compensate the harshness of the law for the
authors – the theory of the limited property or the “right to reputation” 32 for example.
The thesis is ideologically oriented: copyright reflects the archaic period of law and
moral rights the “end of History”. However, it gives an interesting and optimistic key
to interpret the recent changes. In France and Germany, moral rights have been only
recently recognised and it is relevant to notice that those countries had the same
problem than the USA or UK today to acknowledge a coherent system of protection
and especially to conciliate moral rights and property. Moreover, this recognition of
moral rights did not prevent Paris from becoming at the end of the 19th Century one
of the most attractive cities for artists and for the trade of works of art…
30
Membran, K-tel [20/01/1981], RIDA 109,174.
B Edelman, Propriete litteraire et industrielle, (Paris, coll Que-sais je?, 1st ed 1989 PUF)
32
Bordeaux, 24/08/1863, S 1864,2,194.
31
18
B) The future of moral rights: for a realistic and modern approach
One of the most important problems of moral rights comes from their supporters. It is
obvious that the absolutist and intransigent French doctrine renders the conflict more
ideological and therefore less resolvable. Several pro-moral rights commentators33
point out this matter and argue that Germany constitutes actually the best pattern
because of its moderate and realistic approach concerning moral rights. Even the more
radical common law doctrine34 accepts this point:
“The comparatively limited nature of German-style moral rights protection may
have the advantage that, if harmonization is decreed, a compromise along those
lines might prove more acceptable to both French and British legal systems than
an attempt to impose an Anglo Saxon copyright system upon the former or droits
moraux upon the latter”.
The main features of the German system are the limited definition of “distortion35”,
the duration of moral rights protection limited to the duration of the economic rights
and the authorisation of waiver clause if an author agrees in contract to a specific
(foreseen) use of his work36.
More generally, it is necessary to find a compromise on the scope of moral rights. The
first question is to determine whether all works must be protected and whether the
same protection shall be provided. The most important point is to protect visual arts37
– that is why VARA makes sense – because the work is the “object”. In other
domains, the work is a much more abstract concept. If the work is a symphony, it
J Raynard, “la totemisation du droit moral”, note under Cass 1 st civ, 28/05/1991, DS 1993, J p197
Newman, ibid, footnote 3
35
article 14 of the Code on Copyrighted works prohibits “distortion s apt to put in danger the author’s
justifiable personal interests in the work”.
36
French courts have also accepted this point. See IB
37
J Ginsburg, ibid.
33
34
19
exists independently of any sheet music in which copies may be concretised. If one
such copy is destroyed, the symphony itself still persists. This is not the case with
works of visual arts. This does not mean that other works must not be protected but
only that visual arts constitute the absolute minimum level of protection. A different
protection for different kind of works could also be an acceptable compromise to
conciliate moral rights and other interests, especially in the software industry.
However, all exceptions must be the product of a coherent policy rather than the
product of special pleading, as now occurs under the CDPA.
Another question is: which rights must be protected? A large protection confers four
rights to authors: paternity (or attribution) right, “divulgation right” (droit de
divulgation : the right to decide when the work is finished and when the public can
have access to it), withdrawal right and integrity right. The first two rights are usually
accepted, even by the Anglo-American doctrine38. By contrast, the withdrawal right is
a French concept, which has no real supporter outside this country. If an author
decides that his work has to be modified he has the right to “withdraw” it in order to
correct or even destroy it. This right is strictly limited by the obligations to pay a “fair
remuneration” (it is like a compulsory purchase), to propose then the modified work
to the former buyer and by the control of the courts to prevent any abuse. This moral
right is philosophically very interesting and merits more consideration. However, it is
unlikely that it would be accepted by the common law jurisdictions if the limits to this
right are not more clearly defined. The integrity right is also controversial, especially
for works created by a multiplicity of authors. A flexible position has to be adopted by
the courts, in the light of this erosion of the paradigm of single authorship. The policy
decision underlying the general adoption of integrity rights is whether, independently
38
J Ginsburg, ibid.
20
of the economic right under copyright, we want to give a “veto power39” to the
discernable creator of all works of general authorship40. For the reasons explained in
the first part of this dissertation, I tend to conclude that discretion is the better part of
valour and therefore favour the adoption of the integrity right.
Common law principles and concepts could also be very useful to create a moderate
but efficient protection of moral rights. D. Vaver41 takes the example of the
prohibition of waiver clause. If the French approach is considered as too absolutist for
the UK, a half-way house might be suggested: waivers could be subjected to a
touchstone of reasonableness. This approach builds on a scheme in the old copyright
Act 1911, which stated that the record could make alterations or omissions to the
music, but only if such changes were “reasonably necessary for the adaptation of the
work”42. This proposition means that, far from being an unfamiliar concept, moral
rights could already be more efficiently protected by the mere “good willingness” and
the originality of the courts.
To conclude, I think, like G. Dworkin43, that a moral rights regime which is
“sufficiently flexible to provide a fair and satisfactory balance between authors and
owners of copyright” seems a worthy goal. This new regime could be the product of a
compromise on a moderate but full protective approach.
The key of this “quest” is clearly European. It consists in convincing the UK of the
interest of moral rights and in transforming the European Union in a real actor of the
next international negotiations.
See for example the famous “Hutson case” dealing with the colorization of black and white motion
pictures. For a comment: 12
40
J Ginsburg, ibid.
41
D Vaver, ibid, footnote 8
42
Copyright Act 1911, s19(2)(b)(i)
43
G Dworkin, “the moral rights of the authors: moral rights and the common law countries” in ALAI
(Congress of Antwerp, sept 1993, Paris, 1994), 81 at 113.
39
21
Bibliography
Articles
JB Laydu, Droit moral et copyright: les nouveaux freres ennemis, Petites Affiches,
n°87, 22/07/1994.
Y Gendreau, La civilisation du droit d’auteur au Canada, RIDC, 1-2000.
R Durie, Moral rights and the English business community, Entertainment law
review, 1991.
J Ginsburg, Moral rights in a common law system, ELR, 1990, 1(4), 121-130.
D Vaver, Moral rights yesterday, today and tomorrow, International Journal of law
and Information Technology, 7(3), 270-278, 1999.
G Lea, Program copyright and moral rights: a culture clash? Computer law and
security report, 304-306, nov-dec 1994.
MC Piatti, la non inclusion de l’article 6bis de la convention de Berne: une remise en
cause du droit moral?, Petites Affiches, 5, 11/01/1995.
B Edelman, entre copyright et droit d’auteur: l’integrite de l’oeuvre de l’esprit.
Receuil Dalloz 1990, chron 40.
Newman, Rights, freedoms and phonograms, CLSR, vol 13 (2 parts), 1997.
M Spencer, Moral rights for the US takes a hit in the second circuit, ELR, 5, 1996.
22
Books:
A Francon, Propriete litteraire, artistique et industrielle, (Paris: ed Litec, 1995).
B Edelman, Propriete litteraire et industrielle, (Paris, coll Que-sais je?, 1st ed 1989
PUF)
Cases:
UK cases:
Humphries v Thompson [1905-1910] MCC 148
Archbold v Sweet [1832] 172 ER 947
Frisby v BBC [1967] WLR 1204
US cases:
Stevens v National Broadcastings company, 148 US PQ 755 (Cal Super CT LA Co
1966)
Gilliam v ABC, 538 F 2d 14 (2d circ1976)
French cases44:
CA Paris, 1er Ch, 14/06/1950: D1951, p9, note Desbois.
Cass 1er Civ, 28/05/1991: JCP 91 ,II ed generale n 21731, note Francon.
Cass 1er Civ, 17/03/1958: JCP 61 1998,II,10148, note Piedelievre.
Cass Civ 1ere, 22/11/1966, D 1967, J, 485, note Desbois.
Bordeaux, 24/08/1863, S 1864,2,194.
French nomenclature: “Cass” means Cour de cassation. “Civ” means chambre civile (which is
competent for intellectual property).
44
23