These exceptions to moral rights have been incorporated in the law of foreign jurisdictions over time and through adjustments that take account of the special dimensions of particular societies and cultures in a variety of nations. It cannot be expected that such ameliorative doctrines could be legislatively incorporated whole-cloth into U.S. law if a comprehensive moral rights law were to be enacted here. It would be particularly unfortunate if such a law were to be read by our courts as an invitation to strict application, without these ameliorative doctrines. But it would not be much better -- from the point of view of persons undertaking investment in the arts and entertainments fields -- to leave it to the courts to introduce piecemeal a variety of needed exemptions and defenses, particularly when the foreign experience suggests that these exemptions and defenses will almost inevitably turn upon aesthetic and subjective assessments which go well beyond the expertise and proper role of judges and juries. Perhaps my greatest concern about the comprehensive incorporation of moral rights into U.S. law is the flat inconsistency between moral rights and a number of fundamental U.S. legal principles relating to copyright, to the public domain, to property, to contract, to constitutional law, and to the judicial role. Moral rights will inevitably conflict with copyright by permitting an author to veto certain uses of a work contemplated by the current copyright owner. The copyright owner holds the exclusive right to prepare derivative works. As noted above, the right to adapt, edit, translate, abridge, and the like are perhaps the most important rights of the copyright owner today; they may determine whether investors will support the creation and distribution of that work to the U.S. and foreign public. moral rights law with which I am familiar successfully accommodates the rights of the author and of the copyright owner after copyright has been transferred. Also as noted above, moral rights held by individual authors will inevitably conflict with the copyright interests of other joint authors and of employers in works made for hire. No Our legal system has a number of policies that support the cultural enrichment of our public domain. Our fair use doctrine and a host of statutory exemptions contemplate educational uses, parodies, news reporting and cultural criticism, parodies and the like. The first amendment to the Constitution incorporates the same values, and the patent and copyright clause of the Constitution contemplates statutory protection for only a limited time. All of these concerns for the public domain, and for fair dissemination and comment, may be jeopardized through the adoption of comprehensive moral rights legislation -- particularly if, as in a number of foreign nations, moral rights are deemed to last perpetually, or at least for a longer period than the copyright. - Property laws give the owner of a chattel including a painting or sculpture the right to place it, display it, frame it, or store it in any reasonable location or manner (and even probably in unreasonable ones). Owners of structures are commonly understood to have the right to make adjustments in those structures or even to destroy them. The compatibility of moral rights with these property ownership rights has been difficult to ascertain (witness the Canadian Geese litigation). Moral rights legislation will also create conflicts with the variety of individually and collectively negotiated contracts that permeate the film, broadcasting, and magazine, newspaper and book publishing industries. In the U.S. legal system, we have traditionally valued the use of freely negotiated contracts to allocate rights and duties of the various participants in an enterprise. Examples are the employment agreement, the agreement among collaborative authors, and the author-publisher agreement. Government will sometimes step in to dictate the terms of contracts, but this is generally done only when the present contractual arrangements are regarded as significantly unjust or abusive, or unprotective of central social values. It does not seem to me that the case has been made that the present system of governing private relationships in the various industries is so dysfunctional as to warrant governmental intervention. It is not clear to me precisely what injustices are being worked by that system. Finally, as has been suggested above in discussing the foreign experience, the incorporation of moral rights into U.S. law will inevitably bring before judges and juries matters of aesthetics for which they are ill-suited. How will it be determined whether there is prejudice to an author's honor and reputation, or whether certain changes are "adaptations" rather than "distortions," or whether a plaintiff's claims are abusive, or whether a fair use doctrine will apply (and how will it compare to the fair use doctrine in copyright)? Will these standards be determined by a subjective or an objective test? And how will they accommodate the policies that underlie the First Amendment? It is true that certain comparable questions are treated in the context of other legal doctrines such as defamation, privacy, copyright, and the Lanham Act. But the latter are more familiar to our legal system and those charged with interpreting our legal rules. The latter U.S. legal doctrines also take into account a number of countervailing policies that are attentive to the public interest in access to information and culture, such as the First Amendment, fair use, the requirement of public confusion in trademark cases, and the termination of the pertinent tort claims upon the death of the plaintiff. Whether or not similar defenses are incorporated amidst the unfamiliar contours of moral rights, the result will be the introduction of great uncertainty and unpredictability into our law. Uncertainty and unpredictability are surely a common feature of our legal system. But I believe that we should be reluctant to introduce them into cultural and entertainment industries that are flourishing, that are attracting investment and providing U.S. artistic leadership in the world, and that touch upon concerns for free expression and creativity at the core of our constitutional and social system. This Subcommittee and its counterpart in the House of Representatives, as well as the Congress generally, reached the conclusion, in connection with the enactment of the Berne Convention Implementation Act of 1988, that the United States already accords rights equivalent to moral rights through various existing state and federal laws. I share that view. I believe that the most worrisome abuses of authors' and artists' rights can be rectified through our laws of unfair competition, contract, defamation, privacy, trademark, copyright, and artists' rights statutes in now ten states. It is true that even the totality of these U.S. counterparts falls short of the most far-reaching applications of moral rights theory abroad. But I believe that the limitations in these U.S. laws comport with our obligations under the Berne Convention and, as just noted, that they are on the whole satisfactory if not indeed beneficent as a matter of public policy. In conclusion, I would note that most of the criticisms I have expressed in this statement with regard to comprehensive moral rights legislation do not apply within the sphere of concern of S. 1198, the Visual Artists Rights Act of 1989. That bill would bar the physical distortion, mutilation or destruction of what might be called singular works of art (as distinguished from mass-produced works, commercially oriented works, and works made for hire). The works of art protected by the bill do not emerge from a commercial setting akin to that described above in the film and publishing industries: art works are the product of individual inspiration and not collaboratively produced under entrepreneurial supervision, their principal economic value typically rests in their singular manifestation and only rarely in their exploitation in derivative forms and subsidiary markets, and there is typically lacking any kind of elaborate network of contractual relationships that surround the production and marketing of the work. The kind of conduct that the bill would forbid rarely has any redeeming social value or artistic purpose. As Senator Kennedy stated upon introducing S. 1198: "This bill addresses a narrow and specific problem -- the mutilation and destruction of works of fine art which are often one-of-a-kind and irreplaceable." As Senator Kasten said: "Works protected by this bill are one of a kind or very limited editions. When these works are altered or destroyed, they are gone forever. We have a duty to protect them." - 9 The kinds of works protected by S. 1198, and the kind of conduct it proscribes, all contribute to making a strong claim for this type of moral rights legislation; enactment would have far fewer negative ramifications than I have outlined above regarding more comprehensive moral rights legislation. The fact that artists' rights laws already exist in ten states -- including those with greatest importance to artists and to the institutions that support the art market and art world -- provides further support for the contention that federal artists' rights legislation will provide valuable uniformity while working very little disruption in existing commercial practices. Senator DECONCINI. Thank you. Mr. Brown. STATEMENT OF JACK E. BROWN, ESQ., LAW FIRM OF BROWN & BAIN, PHOENIX, AZ Mr. BROWN. Senator DeConcini, Senator Hatch, members of the committee, the concern that I would particularly express today is that while in these hearings the visual arts are the center of attention, or may be, sight should not be lost of the effect of copyright law on other works of creative endeavor, and particularly the computer and high technology industries, with which I have some familiarity. I would suggest in particular, endorsing Professor Gorman's statement which I just heard, that we appreciate fully the extent to which the creation and distribution of informational and artistic materials is dependent on economically viable business arrangements. The optimum business arrangements, both in terms of economics and fairness, I would submit, are best attained in almost all cases by allowing participants in the affected businesses a high degree of freedom to devise and implement their own contractual arrangements. On the first subject of moral rights-and I would like a moment also to address the question of the author's rights under the provision of the copyright law providing ownership with respect to works made for hire, if I may-on the first subject of moral rights, I would suggest that those who propose the enactment of a Federal law to create some new author's rights that would not be recognized by the combined property/tort/commercial/unfair competition laws, as presently envisioned by our State and Federal courts, should carry an extremely heavy burden of persuasion. Each particular industry needs to be analyzed in terms of its own organizational structure and imperatives, but let me focus on two facts of interest in connection with the computer industry which may well have their equivalent in other copyright-based informational and cultural industries. First, computer programs today most often are the product of relatively long periods of gestation by numbers of people working in teams, sometimes as employees of the company engaged in development work and sometimes not. Perhaps you noticed in Sunday's New York Times that the personal computer software industry is increasingly writing programs by piecing together segments of code, utilizing the technique called object-oriented programming. Second, computer programs are not finished products when they are first issued. If there is a program that has been written without a single bug at the time of its first issuance, I have not heard of it. Bugs are discovered during the course of actual use and consequently, the common experience is to issue "bug-fixes" in the form of updates or enhancements in regular course. The notion, consequently, of a static work which an identifiable single author who may which to preserve in its pristine form simply doesn't fit the realities of an industry like the computer industry and, I suggest, perhaps some others. Recognizing the commercial realities, Japan specifically adopted an amendment to its copyright law that, as one commentator has said, effectively abolishes moral rights in connection with computer products. Perhaps even more telling, France-generally regarded, as Professor Damich has mentioned, as the birthplace of moral rightsamended its copyright law in 1984 to provide, in effect, an exclusion from moral rights for computer programs. Now, qualifying a work as a "work made for hire" under copyright law is, as I indicated earlier, a related subject in that it is the determinative test for the purpose of determining authorship and copyright ownership in many cases. Two problems emerge, as to which I would offer a short comment. First, there is a fair amount of uncertainty as to when a hired party may qualify as an employee under the general common law of agency, making the employer the author and the owner of the copyright for the work produced. The recent Supreme Court decision in the Reid case set forth a non-exhaustive list of factors relevant to that determination, listing 13 items, not one of which the Court said was determinative. Incidentally, Senator DeConcini, a measure of the alarm with which the current situation is viewed may be seen from the article in the New York Times, reprinted in the Arizona Republic, under the headline "Copyright Ruling Could Cost Firms Billions." Now, the problem is exacerbated by the fact that if it is determined that a work was not prepared by an employee within the scope of his employment, the hiree gains an inalienable right to be considered an author of the work. I have a very simple and preliminary suggestion in that regard, to make it clear by adding the term "computer program" to the list of categories of works that are within subparagraph (2), which will provide clarification that you can have those rights-you can have an arrangement between a contractor and someone commissioning a work that provides for the person commissioning the work to be treated, in effect, as an employer, and the work then treated as a work made- Senator DECONCINI. Mr. Brown, can you please conclude? [The prepared statement of Mr. Brown and responses to additional questions follow:] |