1988–the United States joins the

Berne Convention

United States–Pirate Nation @ 19th Century

U.S. v. Berne

• Registration – Berne Article 5 (2): “not subject to any formality”

• Moral Rights – Berne Article 6bis (1928): protection for at least the lifetime of the author

• => possibility of perpetual protection? = constitutionality?

U.S. Constitution, Article I, Section 1, Clause 8

• To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their writings and discoveries.

Shostakovich v. Twentieth-Century Fox (1948): moral rights in the public domain?

Shostakovich (1948)“Conceivably, under the doctrine of Moral Right the court could in a proper case, prevent the use of a composition or work, in the public domain, in such a manner as would be violative of the author's rights. The application of the doctrine presents much difficulty however. With reference to that which is in the public domain there arises a conflict between the moral right and the well established rights of others to use such works....Is the standard to be good taste, artistic worth, political beliefs, moral concepts or what is it to be?”

Huston v. La Cinq (1992, French C.A.)

Huston (1992)

•“I filmed it in black and white, as a sculptor chooses to shape clay, to mould his work in bronze, to sculpt in marble.”

•{“Je l’ai tourné en noir et blanc, comme un sculpteur choisit de façonner l’argile, de couler son travail dans le bronze, de sculpter dans le marbre.”}

Vertigo v. The Artist

United States: Non-Copyright Treatment of Moral Rights

• false advertising/consumer protection: Lanham Act, s. 43 (a)

• Dastar (2003, U.S.S.C.)

Dastar (2003, U.S.S.C.)

• Lanham Act, s 43 (a)

• “origin of goods” = “attribution”

• trademark = moral right

• public domain = work in copyright term?

International Moral Rights Cases

• Canada: Snow v. Eaton Centre (1982)

• Theberge v. Galerie d’Art du Petit Champlain, SCC 2002

• India: Amar Nath Sehgal v. Union of India (2005)

Snow v. Eaton Centre (1982) (Ont. H.C.J.)

Amar Nath Sehgal v. Union of India (2005, Delhi H.C.)

Moral Rights Reform in India

• 1992: Interim judgement in Sehgal case

• 1994: law reform for “Berne conformity”=> introduced a requirement of proof of damage to artist’s reputation

• 2005: final judgement in Sehgal case

Para 55• “However, the various

declarations by the international community in the conventions noted above, lift the moral rights in works of Art if the same acquire the status of cultural heritage of a nation. India is a signatory to the conventions and it would be the obligation of the State to honour its declarations.”

Theberge v. Galerie d’Art du Petit

Champlain (SCC, 2002)

reproduction or multiplication?moral rights in disguise

(Canadian monism)“Le Rosier”by Claude Théberge:

http://www.claudetheberge.com/peintures/fleurs.html

“Hip” Moral Rights

Copyright, Designs & Patents Act 1988, s. 80:

“the treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director”

“compressed drafting style”

the meaning of “otherwise”

Confetti Records (2002)

Other Approaches...

• corporate moral rights: Japan & Korea (& India in relation to film)

• moral right of the general public in cultural works (“any interested person”): Russia

• “indigenous communal moral rights”: Australia (rejected)

Beijing Treaty

• moral rights for performers

• U.S. implementation?

• the “Warner Bros” approach (footnote to Article 5)

The Case for American Moral Rights

(1) National Pride – the Huston problem

(2) Human Rights – individual authors and artists – focus of U.S. Constitution

(3) International Agreements – Berne & Beijing

(4) Successful Foreign Practice

(5) International Marketplace

(6) Digital Technology

A Blueprint for U.S. Moral Rights

(1) Legislative Reform => Dastar (2003)

(2) “Monism” = moral rights tied to economic rights (derivative works doctrine) => Gilliam (“Monty Python,” 1976) & Clean Flicks (2006) (reproduction right)

(3) U.S. Constitution — opportunities and limits

(4) Harmonization — domestic and international

Discussion Questions(1) As a matter of IP policy, are moral

rights desirable for the United States?

(2) Are they unconstitutional?

(3) How do they affect free speech and freedom of creativity?

(4) Is the U.S. currently in breach of its international obligations? (...Does it matter?)

Moral Rights and U.S. Copyright Law

Mira T. Sundara Rajan