Re: Moral rights (Was: copyright expiration as a spur to creativity)

Apologies in advance for the rave but this hit a raw nerve for me.

Moritz Roettinger <moritz.roettinger[_at_]dg23.cec.be> wrote:
>
> 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.

The WIPO "Guide Berne Convention for the Protection of Literary and Artistic Works (WIPO, Geneva, 1978) refers to `the practice of member countries with an Anglo-Saxon legal tradition, according to which the protection of the moral right is mainly a matter for the common law, and, in particular, the law of defamation.' p. 44.

Art.6bis (1) requires that the distortion etc be `prejudicial to [the author's] honour or reputation' which coincides exactly with the boundaries of defamation law. Defamation survives a transfer of copyright ownership but not the death of the defamed person satisfying (2). And (3) explicitly states the the `means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where the protection is claimed'. It does not require that protection be encoded into the Copyright Act!

The only part of art6.bis that Australia and the US seem to fail on is a positive right of attribution. (BTW I think a positive right of attribution is a really good idea). Australia has been hampered in changing its law to include a positive right of attribution by lobby groups attempting to attach to it the complete European model of moral rights, which WIPO has already acknowledged is unnecessary (we are promised [again!] legislation early next year).

A potential source of problem in this area is that IP lawyers in common law jurisdictions are rarely defamation lawyers as well. The two are not considered related areas of the law. One is an alienable property right and the other is an inalienable personal right.

> 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?

The Europeans may have compromised with each other (mainly by forcing the UK to tow the line) but how have the Europeans compromised with the Anglo-Saxon tradition (UK, US or other) on the issue of copyright [I genuinely don't know]? Counter examples like the unilateral decision to raise the term of protection to life+70 in those countries that previously had the term mandated by Berne spring to mind. This particular action places a lot of pressure on non-Europeans to step in line, and I think the US and to a lesser extent other non-Europeans are justified in resisting, particularly as the US, UK and Canada have all already made considerable concessions to the European model. Whether or not they will resist successfully remains to be seen.

-- 
| Tim Arnold-Moore, LL.B., B.Sc. (Hons)
| Postal address:  Multimedia Database Systems, RMIT
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|	simul iustus et peccator
<tja[_at_]mds.rmit.edu.au>