inquiries, or before Royal Commissions, do not need to identify the author. The U.K. law provides for both positive and negative paternity rights. The right against false attribution is a staple fixture in English law, the new statutory right terminates twenty years after the author's death, unlike the other moral rights, which endure for the life of the copyright. Integrity The U.K. law establishes the right to object to derogatory treatment of a work. This right is further subject to the qualification that the distortion or mutilation must be prejudicial to the honor or reputation of the author or director, as is the case with the Berne Article 6bis requirement. Moreover, a translation of a literary or dramatic work or an arrangement or simple transposition of a musical work is excluded from consideration as derogatory. A work may be subjected to derogatory treatment by publication, public exhibition, or performance. The right of integrity for models, architectural works, sculpture, or works of artistic craftsmanship may be infringed by issuing two-dimensional copies or photographs representing derogatory treatment of the work, but the only remedy for such treatment of an actual work of architecture is that the author may require that his or her name be removed. Motion picture authors and directors receive fairly substantial rights. Article 80(6) provides: In the case of a film, the right [to object to deroga - (a) shows in public, broadcasts or includes - 32 exclusions. (b) issues to the public copies of a Films are also, however, subject to substantial qualifications and In addition to fair use exclusions, and the possibility of disclaimers or waivers, the copyright owner has broad authority to revise the work unless the author has been identified on copies of the work. The right of integrity may be infringed by persons who knowledgeably possess, distribute, or deal commercially with works that infringe this right, even though the possessor him or herself has not taken any derogatory action toward the work. Comments on U.K. Law. The new moral rights law of the United Kingdom is detailed. It remains to be seen how the judiciary will react to this very complex law. One basis for the position that U.S. law is compatible with Article 6bis of Berne was that the U.K., a prominent member of Berne with a system similar to that of the U.S., had no explicit moral rights legislation. Countries in the common law tradition could be said to have carved out moral rights protection through other legal theories. The status of the United Kingdom as a major bastion of noncopyright moral rights changed when they adopted their statute last year. U.K. law is now specific. According to some commentators, the real reason the United States could join Berne without concern about moral rights noncompliance was that there was already substantial noncompliance with Article 6bis on the part - 33 of several other Berne member countries. However, the noncompliance of others seems a tenuous base for continuing United States "compatibility."46 The Visual Artists' Rights Act of 1989 would amend the copyright law by creating a new section 106A establishing new moral rights of attribution and integrity. Section 2 of the bill adds to the definition section of title 17 the phrase "work of visual art," which is a new subcategory of pictorial, graphic and sculptural works. Included in this new subcategory are original paintings, drawings, prints, and sculpture existing in a single copy, or limited editions of no more than 200 copies, and still photographs produced for exhibition. Excluded are works of applied art and audiovisual works, including motion pictures. Technical works, merchandising items, books, magazines, periodicals, or similar publications are also excluded, as well as works that are made for hire and "works" not subject to protection under the Copyright Act. Section 3, the nucleus of the bill, grants the author the rights of attribution and integrity, independent of copyright ownership. Under this section, the author of a work of visual art receives the right to claim authorship and to prevent use of a person's name on a work he or she did not create. Authors are also given the right to prohibit use of their name on a work of visual art in the event of distortion, mutilation or other The 46 Ginsberg and Kernochan, "One Hundred and Two Years Later: U.S. Joins the Berne Convention," 13 Columbia-VLA Journal of Law & the Arts (Fall, 1988), 1. - 34 modification of the work. The author would also have the right to prevent any distortion, mutilation or other modification of the work which would be prejudicial to the author's honor or reputation. Any intentional or grossly negligent distortion, mutilation or other modification of a work is expressly declared to be a violation of the integrity right, apparently without further proof that the change is prejudicial to honor or reputation. Finally, section 106A(a)(3)(B) creates a right against the destruction of works of recognized stature and sets up criteria for determining whether a work is of such stature. S. 1198 expansively extends the new visual artists rights to all authors, irrespective of nationality or place of publication. Thus a foreign author need not be eligible for copyright protection in the United States in order to claim moral rights under section 106A. Like the more recent state laws, conservation and deterioration through time is not actionable unless it is caused by gross negligence. Under proposed section 106A(e), the moral right is not waivable,47 but can be transferred on the author's death by bequest or by intestate succession. All rights created by S. 1198 would endure for the copyright term. Works published before the effective date of the act are not covered in an effort to avoid constitutional due process problems relating to a taking without compensation. Such a problem might arise where a transfer of 47 The waiver provision represents a major difference between the House and Senate bills. H.R. 2690, the companion bill in the House, allows waiver of the moral rights granted by SEC. 3 of the bill. - 35 rights has been made and the value of the work transferred might be reduced if the bill were to take away the transferee's right to modify the work. Proposed section 106A(e)(3) clarifies that ownership of moral rights is distinct from ownership of the physical object and that transfer of ownership of the physical fixation of the work does not transfer with it any of the author's moral rights. new Section 4 of the Visual Artists' Rights bill would add a subsection (d) to amend section 113 of the copyright law to provide for a waiver of moral rights in connection with removal of works of visual art that have been made part of a building. As a prerequisite to this waiver taking effect, however, the artist must sign a consent to the installation of such work. An author who wishes to insure his or her right to remove such works must assert the right in a written agreement signed by the building owner. To bind a subsequent owner absent actual notice, the artist must record the agreement in the state real property records prior to the transfer to the subsequent owner. Where a work can be removed without harm, the building owner must attempt to notify the artist and give him or the successor of the artist's moral rights 90 days to remove the work. Section 5 would amend section 301 of the copyright law to preempt all rights equivalent to those provided in the bill except for causes of action commencing before the effective date, and except for works published before the effective date of the act. Proposed section 6 would exclude criminal penalties for violations of the attribution and integrity rights. It would also exempt authors of works of visual art from the present requirement under section 412 of registering the work in order to be entitled to sue for statutory damages |