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

On Sun, 06 Sep 1998, Pascal Kamina <pkamina@@club.internet.fr> wrote:
>
> Moritz Roettinger <moritz.roettinger[_at_]dg23.cec.be> wrote:
> >
> > Pascal Kamina <pkamina[_at_]club-internet.fr> wrote:
> > >
> > > Moritz Roettinger <moritz.roettinger[_at_]dg23.cec.be> wrote:
> > > >
> > > > On Tue, 01 Sep 1998, Pascal Kamina <pkamina[_at_]club-internet.fr> wrote:
> > > > >
> > > > > Just a remark to say that the concept that copyright is not
> > > > > transferrable inter vivos is a concept developed under German
> > > > > law, which is not shared by other "author's right" systems.
> > > > > For example under French law copyright (i.e. author's rights
> > > > > less moral rights) is freely transferrable (subject to mandatory
> > > > > rules regarding contracts and specific prohibitions, such as the
> > > > > prohibition of assignments of future works).
> > > >
> > > > Well, this migut be a question of definition. Under German and
> > > > Austrian law you may, of course, transfer the "exploitation rights,
> > > > economic rights" ("Verwertungsrechte") by means of license. But
> > > > you can't transfer the whole copyright including the moral rights.
> > >
> > > But can you "assign", instead of "license", these economic rights?
> > > My understanding was that under German law "economic rights" could
> > > only be "licensed" (due to the "personal" nature, etc. of copyright).
> > > I am wrong?
> > >
> > > Under French law an assignment of economic rights is possible, since
> > > copyright ("economic" rights) is considered as a property right. By
> > > contrast, it is generally thought (although it is being discussed),
> > > that moral rights have a different nature (they belong to the
> > > category of "rights of personality"), which would explain why they
> > > are not transferrable nor waivable.

A quick remark to say that the nature of moral rights is a very controrversial question. The problem is to know whether author's moral rights is part of the "rights of personnality" as opposed to the "rights of property". My opiniopn is that author's moral rights can not be integrated into the "rights of personality" category. The main argument is that author's moral rights does not merely protect one' s personality, but it protects one's personality integrated into a work. Rights of personality merely protect someone as an individual (right to integrity, to one's image...). See Professor A. and H.J. Lucas Traite de la propriete litteraire et artistique ed. Litec 1994, Introduction.

> > Before giving you an answer, could you just clarify the difference
> > between "licensing a right" and "assigning a right"? Thanks in
> > advance!
>
> By assignment I meant a transfer of a property - or a "sale", to make
> it short. In civil law terms, a transfer of property rights. The
> assignee becomes the owner of the assigned item or property (usually
> without limits of duration or scope). E.g. a sale of goods, the
> assignment of a patent, or of patent rights.
>
> By licence, I mean an "authorisation" to exploit the work or the
> protected item (usually limited in time, exclusive or non exclusive).
> E.g. a trademark licence, a patent licence. The licensee is not owner
> of the licensed item.

The distinction between license and assignment (which is called "cession" ou "vente") is a distinction which exists as a matter of law in civil property law and patent law but which is not clear under copyright law.

First, it is important to remain the basic definition under civil property law.

Licence does not transfer any property rights, it simply confers the licensee a right to use the subject matter of the transaction. It is often compared to a rent contract. The tenant does not own the house he simply has the right to live in the premises, and he holds this rights from the owner of the house.

On the contrary, assignement ("cession") incurs a transfer of property, and in that sense it is often assimilated to sale or purchase (vente). Because copyright law deals with intangible property it is called cession and not vente.

This distinction which is very clear under french patent law remains uncertain under french copyright law. First the copyright Statute of 1957 does not mention such a distinction. Then some scholars argue that some license agreements confer more rights to the licensee than certain assignment agreements do.

For that reason it is important, when looking at a contract, not to consider the name of the agreement, license or assignment, but to analyse the contract as whole and see what it implies.

Beyind this question lies the problem of the nature of copyright law. Is it similar to real estate law/civil property law or closer to the rights of personnality? Is it possible to figure out a coherent concept of property law integrateing non tangible property law? On this subject matter, Professor Fabre Magnan wrote a vry interesting article in La revue trimestrielle de droit civile 1997.

Alan Ragueneau.
raguenea[_at_]student.law.ucla.edu
Master in Intellectual Property (Nantes - France) LLM in Intellectual Property (UCLA, 1998/1999) Received on Tue Sep 08 1998 - 21:35:11 GMT