CONTENTS Page I. Theory and application of the doctrine of moral right in the European copyright law.... 115 A. The theories of the moral right.. 115 B. The contents of the moral right. 115 1. The moral right in the Berne Convention__. 115 2. The principal features of the moral right in the Berne 116 3. Other components of the moral right.. 120 4. Inalienability of the moral right__. 5. Transmission of the moral right to the author's heirs II. The moral right and the law of the United States. 123 125 126 128 7. The right to relief from any other violation of the author's 138 III. Summary 139 PREFATORY NOTE An earlier version of this study was published in the American Journal of Comparative Law, Autumn 1955 issue, vol. 4, No. 4, pp. 506-538. The revised version printed herein includes some additional material reflecting more recent developments. The contents of the earlier version are incorporated herein with the courteous permission of the Board of Editors of the American Journal of Comparative Law. The COPYRIGHT OFFICE, THE MORAL RIGHT OF THE AUTHOR It is frequently said abroad that the "moral" right of the author, i.e., the right to safeguard his artistic reputation as distinguished from the property aspects of his copyright--is not sufficiently protected in the law of the United States. Even American lawyers have expressed this opinion. The alleged nonexistence of protection of the author's moral right has been considered one of the principal obstacles to adherence by the United States to the Berne and Washington Copyright Conventions, both of which contain provisions for the protection of the right of the author to claim authorship in his work and to prevent others from interfering with its integrity. In the following pages we shall compare the protection of the author's personality rights under the doctrine of moral right in the European law with the protection given the author's personal rights under our law. I. THEORY AND APPLICATION OF THE DOCTRINE OF MORAL RIGHT IN THE EUROPEAN COPYRIGHT LAW A. THE THEORIES OF THE MORAL RIGHT The theories on the moral right have been developed chiefly by French and German jurists. According to prevalent views, copyright has two facets: the property rights which are objects of commerce and which terminate after the period fixed by law; and the moral right which is inalienably attached to the person of the author and, depending on the particular theory, may or may not survive the property right aspects of the copyright." The French, and to a lesser extent, the German courts have pioneered the application of the doctrine. Therefore, our study will be largely limited to an examination of the doctrine in these countries. There are, however, several important member countries of the Berne Copyright Union which, under their domestic law, provide protection for the author's personal rights without benefit of the moral right doctrine. Their systems will also be discussed briefly. B. THE CONTENTS OF THE MORAL RIGHT 1. The moral right in the Berne Convention Under Article 6bis of the Berne Convention in the Rome revision of 1928 the moral right has two components: the author's right of Ladas, The International Protection of Literary and Artistic Property 581 (1938); Roeder, The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators." 53 Harv. L. Rev. (1940) 554; Katz, "The Doctrine of Moral Right and American Copyright Law-a Proposal," 24 So. Calif. L. Rev. (1951) 375; id., Copyright Protection of Architectural Plans, Drawings, and Designs, 19 School of Law, Duke U. (1954) 224. Under the "German" theory the property rights and the moral right terminate together 50 years after the death of the author; under the "French" theory the moral right lasts forever. |