Re: copyright expiration as a spur to creativity

Alan Ragueneau <raguenea[_at_]student.law.ucla.edu> wrote:
>
> On Fri, 28 Aug 1998, Moritz Roettinger <moritz.roettinger[_at_]dg23.cec.be> wrote:
> >
> > On Fri, 28 Aug 1998, Timothy Arnold-Moore <tja[_at_]mds.rmit.edu.au> wrote:
> > >
> > > Could we ever get the Europeans with their moral rights tradition to
> > > participate?
> >
> > Seems to me difficult. Why don't the US (and the other copyright
> > approach countires) introduce more elements of the European moral rights
> > tradition into their legislation?
>
> As you certainly know US copyright law is not totally deprived of moral
> rights, the main statutory element being the Visual Artist Right Act
> 1990 which was implemented after the US join the Berne Convention in
> 1989. There is a very interesting article writtent by Adoplhe Dietz on
> that matter in of the issue of the RIDA 1989. The title is
> Idiosyncrasie about moral rights in ths US (aproximatively).
>
> The VAR act 1990 confers a very limited protection and only to visual
> art works. For that reason many european comentators critisize the US
> copyright law and contend that the US copyright law does not contemplate
> the article 6 bis of the Berne Convention.
>
> The counter argument is that it exists areas of law other than copyright
> law which protect the author's personnal interests. The main statute is
> the Lahnam Act which mainly deals with trade mark law.
>
> Beyond this controversial question of whether the USCA 1976 should
> provide with more stringent moral right protection it is clear that you
> have to consider copyright law or author's right as a genral and
> coherent system. Moral rights perfectly fit the French or German
> copyright law because the main point is to protect author's creativity.
> It follows that in principle (there are exceptions like l'oeuvre
> collective in France) it is the creator who is the original/initial
> copyright owner. Originality concepts reflects this approach: is
> copyrightable, a work which is imbued of the author's personnality. (It
> is the classical definition, and a recent line of French precedents have
> changed this concept and merely require for the "author's input" - Pacho
> case 1986)
>
> On the opposite, american copyright law is more concerned with the
> economical arguments and stress on the materialistic aspects of
> copyright law. One example is the concept of work made for hire. This
> latter is not the creator's property but the firm or investor's proprty
> (the one who orders the work). This latter concept is inconsistent
> with moral rights. For that reason introducing a higher level of
> author's moral right in the US copyright law is not a simple matter.

What you say is, in genaral, correct. However two remarks:

1. I personally believe - however, without any in-depth analysis - that US law is not in accordance with article 6bis Berne Convention. I do not think that trade secret protection or specific elements of moral rights protection in the trademark area conferred by the Lanham Act are sufficient.
2. Instead of arguing the differencies between the copyright and the author's rights concepts, shouldn't we rather try to find ways to come to a compromise, in particular bearing in mind that copyright has become a global issue?

Moritz Roettinger

Dr Moritz Roettinger LL.M.
European Commission, Brussels
Universities of Vienna and Saarbruecken
moritz.roettinger[_at_]dg23.cec.be Received on Wed Sep 02 1998 - 07:57:43 GMT