exercising the moral right, may complain and sue. 27 At worst, the publisher smarts in damages and is enjoined; at best, he is subject to a lawsuit.

Adaptations are of great concern. The Reader's Digest for decades one of the country's most popular magazines is a journal of condensations of best-selling books and of articles from other periodicals. The integrity right could substitute legal coercion for the author-editor cooperation by which the Reader's Digest has supplied consumer tastes in many languages throughout the world.28 Other members of the Coalition frequently adapt works for multiple forms of dissemination. For example, news, information and other articles are frequently delivered in a variety of media. Thus, the work of a single author may have to be modified, re-edited and re-formatted for dissemination by wire service, domestic newspaper, international newspaper, and broadcast report, or a magazine article may have to be adapted and reprinted in a book that collects articles on a particular topic.

d. Textbooks. A textbook is, frequently, in its first and successive editions, the handiwork of several authors, including not only teachers but graduate students working under them who have no formal relationship with the publisher. Commonly such textbooks (like other manuscripts) require substantial editing by the publisher. The publisher has traditionally enjoyed, and continues to require, the discretion to make editorial emendations free from the danger of second-guessing integrity right claims.

Moreover, under standard arrangements, college and professional textbooks are typically revised by several generations of authors although the text continues to be published under the name of the original author. Yet, armed with the integrity right, the original author or his heirs may bar revisions of the original work as a distortion or mutilation. Because universities must be assured of a dependable supply of subsequent editions, and because such

27 See WIPO, Guide to the Berne Convention, at 42 ("[T]he adaptor's freedom is not absolute; this 'right of respect' allows the author to demand, for example, the preservation of his plot and the main features of his characters from changes which will alter the nature of the work or the author's basic message.").

28 The translations themselves form another area where editorial discretion in adaptation is long-established, needed, and fair.

textbooks often do not pass into profitability until several editions are sold, the risk of moral rights suits could chill production of such works.

Computer Software.

Computer software presents unique problems. Software must frequently be modified by publishers to alter the user interface (either to improve appearance or to relate to accompanying written material) or to conform the software to an integrated system. Moreover, software often requires modification and adaptation to meet user needs or to "debug". Such changes must be made free from any risk of an integrity claim.29

f. Obiections to "Context." A different order problem is created if an author may object to context in which a work is placed as "a derogatory action in relation to" the work. 30 Such a complaint was raised in Shostakovich v. Twentieth Century-Fox Film Corp..31 There, four Soviet composers objected to the use of their public domain works in what they considered an anti-Soviet motion picture. The court refused to grant relief, in part, on the ground that "[i]n the present state of our law, the very existence of the [moral] right is not clear."32 In contrast, a French court,

hearing the same facts, did find a violation of the moral

29 The French recognize the unique status of software. The 1985 reform of French copyright law provides that, absent agreement to the contrary, the author may not object to the modification of a software work by a grantee who has acquired the right to adapt the work. French Copyright Law revision of July 3, 1985, art. 46. See Ginsburg, Reforms and Innovations Regarding Authors' and Performers' Rights in France: Commentary on the Law of July 3, 1985, 10 Colum.-VLA J.L. & Arts 83, 90 (1985).

30 H.R. 1623 does not include the right to object to a "derogatory action" but appears to be limited to "distortion, mutilation or other alteration". However, the Convention expressly forbids any "other derogatory action" in relation to the work which can not be ignored under the minimalist approach and may, in any event, be read into the provisions of H.R. 1623.

31 196 Misc. 67, 80 N.Y.S.2d 575 (N.Y. Sup. Ct. 1948), aff'd, 275 A.D. 692, 87 N.Y.S.2d 430 (1949).

32 Id., 80 N.Y.S.2d at 579.

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even, as in

right and ordered the film seized.33 If the moral right was introduced into U.S. law, such context claims Shostakovich, with public domain works -- might well be recognized.

Context claims would greatly amplify uncertainty in publishing. With them, a photographer or graphic artist would be able to object to the subject matter of the text with which his photograph or drawing is associated or juxtaposed, or an author may be able to object to the presence of other authors or articles on disfavored subjects in the

publication.34 A filmmaker may likewise be able to object to the broadcast of his film with certain commercials.

Such a doctrine could easily be abused to harass or discriminate against unpopular works. Context claims depend on the content of a publication. The freedom to control content is at the core of the interests protected by the First Amendment.35

3. Relationship of Moral Right to Fair Use.

Core First Amendment interests are also endangered by the apparent failure of the proposed legislation to limit moral rights by the fair use doctrine. The doctrine of fair use is integral to the balance between the interests of

33 Societe Le Chant du Monde v. Societe Fox Europe and Societe Fox Americaine Twentieth Century, Cour d'appel, Paris, Jan. 13, 1953, D.A. 1954, 16, 80, discussed in Strauss, The Moral Right of the Author, 4 Am. J. Comp. L. 506, 534-35 n.56 (1955). The New York court thus was correct in its assertion that droit moral could conceivably "prevent the use of a composition or work, in the public domain." Shostakovich, 80 N.Y.S.2d at 578.

34 For example, a photographer may object to the publication of his photograph to illustrate an article advocating a political view with which he disagrees, or a scientist may object to the publication of an article on U.F.O.S or other "pop" science subjects in a magazine containing his article.

35 Cf. L. Tribe, American Constitutional Law 580-81 (1978) ("if the constitutional guarantee means anything, it means that, ordinarily at least, 'government has no power to restrict expression because of its message, its ideas, its subject matter, or its content,'" quoting Police Department of Chicago v. Mosely, 408 U.S. 92, 95-96 (1972)).

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authors and the interests of dissemination embodied in the First Amendment.36

Photographs accompanying news stories frequently depict copyrighted works either incidentally or as the focus of the picture. 37 When the work is incidental to the photograph, the artist, sculptor or architect who created the work is rarely known to the photographer or to the publisher. Liability for failure to provide credit would unnecessarily chill the use of many photographs of public interest.38 where the focus of the photograph is the copyrighted work, it is not always appropriate or possible to identify the artist, sculptor or architect.

Even

Similarly, literary works, motion pictures and other audiovisual works are frequently excerpted, paraphrased or described for purposes of criticism, commentary or news reporting. If the author (or authors, however they may be defined) may object to such uses on the basis of the integrity right, important First Amendment values would be sacrificed.

36

See, e.g., Financial Information, Inc. v. Moody's Investors Serv., Inc., 751 F.2d 501, 507-08 (2d Cir. 1984), quoting Meeropol v. Nizer, 560 F.2d 1061, 1068 (2d Cir. 1977), cert. denied, 434 U.S. 1013 (1978); Wainwright Securities Inc. v. Wall St. Transcript Corp., 558 F.2d 91, 95 (2d Cir. 1977), cert. denied, 434 U.S. 1014 (1978).

37 The number of photographs depicting copyrighted works would increase dramatically upon adherence to Berne because of the requirement that architectural works be protected. Although H.R. 1623 would exclude the right to prevent the dissemination of pictorial representations of such works from the economic copyright (section 9 (a) (§120 (b))), it does not appear to so circumscribe any moral right that may exist in the work.

38

Although the Berne Convention provides that "the protection of this Convention shall not apply to news of the day nor to miscellaneous facts having the character of mere items of press information," Article 2(8), H.R. 1623 does not so provide. In any event, the exception of Article 2(8) is narrowly drawn to "news" and "miscetlenoys facts."

で

Miscellaneous

The Berne Convention expressly requires that its terms apply to previously created works that are not in the public domain in their country of origin. 39 Although Berne technically does not necessarily apply to domestic works, there has been no indication that any implementing legislation would discriminate against U.S. authors, a result likely to be politically unacceptable. Thus, most works now under copyright, including books, motion pictures, magazines, and photographs, where ali copyright interests have been transferred for valuable consideration, will suddenly be subject to moral rights claims and demands for further compensation. Such an unforseen statutorily imposed obligation of the moral right upon existing contracts for those works would work all the unfairness of ex post facto legislation.

In sum, the moral right is certain to impede the free and effective flow of information and copyrighted works to the public due to their novelty and to the uncertainty surrounding their scope and implementation.40

However the

39 "This Convention shall apply to all works which, at the moment of its coming into force, have not yet fallen into the public domain in the country of origin through the expiry of the term of protection." Berne Convention, Article 18(1).

40 Even beyond the risks of moral rights that directly affect the members of the Coalition, introduction of droit moral would fundamentally alter common law notions of personal property rights, disrupting settled expectations. Droit moral provides the author or artist with a controlling interest in his work even after that work has been purchased by another. For example, in one case, France's highest court, the Court of Cassation, required Renault to complete erection of a monument on its property despite the existence of a contract explicitly providing that the artist would be paid even if the monument were not built. The court reasoned that by commencing construction, Renault accepted the obligation to complete the work "so as to fully satisfy the demands of the artist's moral rights." La Regie National des Usines Renault v. DuBuffet, Cass. civ. 1re, March 16, 1983, Arret No. 229; accord L'affaire de la Fontaine de Rennes, Cour de Paris, judgment of July 10, 1975, R.I.D.A., Jan. 1977 at 114) (finding a city liable for damages under droit moral for destruction of a fountain due to safety concerns). In

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