unsolicited manuscripts to independent contractors having a firm relationship with a publisher to employed staff. Both publishers and creators need the ability to ensure that their contractual rights and obligations will be preserved. The relationships among those who invest in and perform the publishing function, on the one hand, and those who create, on the other, have been established over a long period of time. The allocation of economic (not moral) rights in the Copyright Act of 1976, which provides the basis upon which these relationships rest, was the result of a long process during which Congress heard from all parties and established a delicately balanced system in which the rights of creators, publishers and the public were all taken into account. - may While some recent hearings and perhaps today's create the impression that relations between publishers and contributors resemble those of two warring peoples, that is simply not true. We need contributors; they need us. We have worked - and will continue to work - with contributors to improve the process by which rights are contractually established and transferred. Our system can continue to thrive, so long as its inherent balances are left undisturbed. To adopt, as a nation, a system granting certain noncopyright owners rights to control or hinder the process by which publishers seek to exercise the copyright rights that they own (and for which they have paid), would open the floodgates to a wave of vexatious litigation that could threaten to end our enviable position as the world's foremost producer of copyrighted works. I would like to turn now to a detailed examination of today's issues. I. Moral Rights Moral rights, however benign the name may sound, would, simply put, disturb the balance now manifest in our copyright system to a greater extent than anything short of repeal of the copyright statute. Copyright, as the Supreme Court and the Congress have often noted, is designed to promote the dissemination of works of authorship. Moral rights are designed to impede or block dissemination by giving authors and their heirs, after the copyright in a work has been transferred or licensed to a publisher by contract, a right of aesthetic veto over the distribution of that work as reproduced or modified by the publisher. A few examples of the incredible effects of moral rights may be seen in judicial decisions from moral rights nations: The Canadian creator of a sculpture portraying geese in flight enjoined the owners of the sculpture (who owned the shopping center where it was displayed) from draping the geese with colored ribbon as part of a Christmas display. The court 1 However one feels about whether copyright owners or members of the public at large are the intended primary beneficiaries of the current copyright system, it is completely clear that the purpose of the system is to induce the creation and dissemination of creative works. credited the sculptor's objection to an offense to his honor and reputation as a result of the temporary seasonal ornamentation of his work. 2 The well-known Paris department store, Galeries 3 The author of a children's book about to be published in the Netherlands succeeded in enjoining the publication of the book because the illustrations being used by the publisher as an adjunct to the author's text were held by a court to be sufficiently inferior as to prejudice the author's reputation and her value as an author of children's books. Assuming that the publisher had contractual freedom to select and edit the illustrations, this result would generally not be supported under current U.S. law. In Italy, an employer who approves and accepts works completed by an employee in the course of employment is not authorized to modify that work without the employee's consent, unless such modification is regarded as technically necessary This is to adapt the work to its intended use. 2Snow v. Eaton Centre, Ltd., 70 Can. Pat. Rptr. 2d 105 (Ont. High Ct. 1982). 3 Judgment of March 13, 1973, Trib. gr. inst., Paris; discussed in Merryman, The Refrigerator of Bernard Buffet, 27 Hastings L.J. 1023, 1030 (1976) (hereafter "Merryman"). Absent attribution, public confusion was not likely. 4 Pres. Dist. Ct. Utrecht, 27 Nov. 1975, discussed in Nimmer & Geller, International Copyright [Netherlands] at 45 (hereafter "Nimmer & Geller [country]"). 5Nimmer & Geller [Italy] at 40. as well as to custom, practice and investment objectives of domestic businesses, and to Congress' express determination not to modify those principles to restrict the scope of employers' rights. Unlike the process of wholesale statutory revision that led to the enactment of the current copyright law, the adoption of a system of moral rights would amount to the - superimposition of powerful if unpredictable -- new limitations on copyright owners' rights that would throw the current balanced and thriving copyright system into chaos. We submit that such a fundamental change should only be considered if, and when, its proponents demonstrate clearly and convincingly that the status quo is undesirable. No such demonstration has been credibly made. In the absence of such a showing, the radical surgery necessary to graft moral rights onto a healthy copyright system surgery that could should be rejected. I would like to explain in some detail why AAP, as many other organizations comprised of copyright proprietors, strongly opposes the enactment of any broad, uniform, national moral rights regime. We share the view expressed by the last two Congresses and a wide variety of copyright experts that the laws of the United States today 6 See, generally, U.S. Adherence to the Berne Convention, Hearings Before the Subcommittee on Patents, Copyrights and Trademarks of the Senate Committee on the Judiciary, 99th Cong., 2d Sess. (1986), including the testimony of the Director General of the World Intellectual Property Organization and the Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention. including the Copyright and Lanham Acts, together with state statutes and common law governing privacy, publicity, and reputational torts amply protect authors against real (rather than subjective) injury to their reputations, whether by omission of their names from copies of their works distributed to the public or by gross distortions of their works.7 We agree with the congressional determination that the system in place today satisfies the obligations of Article 6-bis of the Berne Convention, and that no disequilibrium has been demonstrated of a type that would merit legislative modification of that system. A full-blown moral rights regime, as found in the laws of France and other European nations, is not only not necessary in the United States but would ultimately be harmful to our entrepreneurial infrastructure. Our copyright system is the foundation upon which the United States copyright community (including AAP's member publishers and other distributors of copyrighted works) is built. This community provides the entire world with educational, informative and entertaining products and services. Indeed, 7 See, e.g., Dodd v. Ft. Smith Special School District, 666 F.Supp. 1278 (W.D. Ark. 1987) (Lanham Act prohibition of sale of goods bearing "false designation of origin... description or representation" held to cover distribution of copies of book bearing name of someone not the author; injunction issued); Gilliam v. American Broadcasting Co., 538 F.2d 14 (2d Cir. 1976) (licensee's unauthorized changes in work (omitting 24 minutes of 90-minute television program) violated licensor's right under the Copyright Act prepare derivative work). - to |