The future of moral rights

Download 68.9 Kb.
Date conversion09.06.2016
Size68.9 Kb.

Rocherieux Julien

Intellectual Property (LW 556)
Course Convenor: Alan Story

April 2002

The future of moral rights

5100 words

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.

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).

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 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 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 well-intentioned 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 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 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.

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 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. 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 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 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, 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.

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:

“If many of the CDPA moral rights provisions seem cynical, or at least half-hearted, 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 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, 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…

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 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 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.



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.

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)
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.

1 see the concept of “recognition” for Hegel or in English philosophy the role of Labour for Locke

2 J Ginsburg, Moral rights in a common law system, ELR, 1990.

3 Newman, Rights, freedoms and phonograms, CLSR, vol 13 (2 parts), 1997

4 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.

6 Newman, ibid, footnote 3

7 Cass Civ 1ere, 22/11/1966, D 1967, J, 485, note Desbois.

8 D Vaver, Moral rights yesterday, today and tomorrow, International Journal of law and Information Technology, 7(3), 270-278, 1999.

9 ibid

10 Newman, ibid, footnote 3

11 D Vaver, ibid, footnote 8

12 R Durie, Moral rights and the English business community, Entertainment law review, 1991

13 [1905-1910] MCC 148

14 R Durie, ibid

15 [1832] 172 ER 947

16 R Durie, ibid

17 [1967] WLR 1204

18 R Durie, ibid

19 148 US PQ 755 (Cal Super CT LA Co 1966)

20 J Ginsburg, ibid.

21 Gilliam v ABC, 538 F 2d 14 (2d circ1976)

22 R Durie, ibid

23 ibid

24 D Vaver, ibid, footnote 8

25 J Ginsburg, ibid.

26 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

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.

30 Membran, K-tel [20/01/1981], RIDA 109,174.

31 B Edelman, Propriete litteraire et industrielle, (Paris, coll Que-sais je?, 1st ed 1989 PUF)

32 Bordeaux, 24/08/1863, S 1864,2,194.

33 J Raynard, “la totemisation du droit moral”, note under Cass 1st civ, 28/05/1991, DS 1993, J p197

34 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.

38 J Ginsburg, ibid.

39 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.

44 French nomenclature: “Cass” means Cour de cassation. “Civ” means chambre civile (which is competent for intellectual property).

The database is protected by copyright © 2016
send message

    Main page