302 INTERNATIONAL COPYRIGHT TREATIES AND LAWS

151 152

Kupferman, Will U.S. Be Burned By Berne Convention, Variety, January 13, 1982, p. 20.

McNabb, Moral Right and the American Court, 13 Hous. L. Rev. 781 (1976). Merryman, Bernard Buffet's Refrigerator and the Integrity of the Work of Art, 76 Artnews 38 (Feb. 1977).

Merryman, The Refrigerator of Bernard Buffet, 27 Hastings L.J. 1023 (1976). Monta, Concept of "Copyright" Versus the "Droit d' Auteur," 32 So. Cal. L. Rev. 177 (1959).

Nimmer, Implications of the Prospective Revisions of the Berne Convention and the United States Copyright Law', 10 Stan. L. Rev. 499 (1967).

Olian, International Copyright and the Needs of Developing Countries: The Awakening of Stockholm and Paris, 7 Cornell Int. L.J. 81 (1974).

Perkins, Literary Property-Artists Right to Prevent Destruction of His Work After Sale, 38 Wash. U.L.Q. 124 (1951).

Roeder, The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators, 53 Harv. L. Rev. 554 (1940).

Sandison, California Enacts Droit Moral and Droit de Suite, 3 Art and the Law No. 1,1,4 (March-April 1977).

Sarraute, Current Theory on the Moral Right of Authors and Artists Under French Law', 16 Am. J. Comp. L. 465 (1969).

Solomon, Lewis, and Gill, Federal and State Resale Royalty Legislation: “What Hath Art Wrought?", 26 U.C.L.A. L. Rev. 322, 324-25 (1978).

Stevenson, Moral Right and the Common Law: A Proposal, ASCAP Copyright
Law Symposium No. 6, at 89 (1955).

Stewart, International Copyright in the 1980's, 28 Bull. Cr. Soc. 351-79 (1981).
Strauss, The Moral Right of the Author, Copr. Rev. Study No. 4, Studies
Prepared for Subcomm. of Patents, Trademarks and Copyrights of the Senate
Comm. on the Judiciary, 86 Cong. 1st Sess. 109 (Comm. Print 1960).
Strauss, The Moral Right of the Author, 4 Am. J. Comp. L. 506 (1955).
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Beginning to the Age of Printing, 6 Memphis St. U.L. Rev. 1-35 (1975); Pt. 2,
From the Age of Printing to the Future, 7 Memphis St. U.L. Rev. 45-84 (1976).
Treece, American Law Analogues of the Author's "Moral Right," 16 Am. J.
Comp. L. 487 (1968).

Vaughan, Problem of Moral Rights in the Preservation and Availability of
Original Musical Scores, 8 Bull. Cr. Soc. 81 (1960).

Moral Right, in Study of Comparative Copyright Law, 2 UNESCO Copr. Bull. 11, 58 (1949).

Note, Question of Berne Entry for the United States, 11 Case W. Res. J. Int. L. 421 (1979).

Note, Moral Right in the United States, 35 Conn. B.J. 509 (1961).

Note, Copyright: Moral Right-A Proposal, 43 Fordham L. Rev. 793-819 (1975). Note, Toward Artistic Integrity: Implementing Moral Right Through Extension of Existing American Legal Doctrines, 60 Geo. L.J. 1539 (1972).

Note, Protection of Artistic Integrity: Gilliam v. American Broadcasting Cos., 90 Harv. L. Rev. 473-78 (1976).

Note, Abandon Restrictions All Ye Who Enter Here: The New United States Copyright Law and the Berne Convention, 9 NYU J. Int. L. & Pol. 455 (1977). Note, Monty Python and the Lanham Act: In Search of the Moral Right, 30 Rutgers L. Rev. 452-77 (1977).

Note, Copyright-Author's Script Protected From Excessive Editing Under Doctrine of Common Law and Section 43(a) of the Lanham Act, 50 Temp. L.Q. 15163 (1976).

Note, Author's Moral Right: Can Louisiana Adopt the Doctrine?, 51 Tul. L. Rev. 309-33 (1977).

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RESPONSES FROM THE AMERICAN INSTITUTE OF ARCHITECTS

TO WRITTEN QUESTIONS SUBMITTED BY SENATOR MATHIAS

Would any of the following features be required with respect to architectural works in order to comply with Berne? Would you support such a provision as a matter of policy?

1. Should the copyright owner's rights in a building or other structure be limited to its esthetic features only or extend also to its functional or utilitarian aspects?

2. Should any protection of esthetic features of a building require as a minimum that such features not be staple, commonplace or familiar?

3. Should the consent of the owner of copyright in a building or other structure be required for the renovation, restoration or demolition of the structure?

4. Should the copyright owner's rights in a building or other structure be such as to prohibit the erection of a substantially similar second structure by "reverse engineering" of the first structure (e.g., from photographs or other depictions) without any direct copying of the plans or blueprints for the first structure?

5. Should two-dimensional representations of works of architecture (e.g., photographs, drawings, or audiovisual works depicting protected buildings) be deemed to be non-infringing copies of the works?

6. Should an architectural work be a "work made for hire" if it is specially ordered or commissioned under a written agreement where the architect is not preparing the work as an employee in the scope of employment by the other party?

In response to your request of July 23, 1986, we are pleased to have this opportunity to answer your questions on the proposal to

bring the U.S. Copyright Act into compliance with the International Union for the Protection of Literary and Artistic Works (the Berne Convention). We think that this is a worthwhile effort and hope that our anwers may assist you in this endeavor.

As my assoicate, Mr. Christopher Wist, explained to Mr. Collins of the Subcommittee's staff, my response will have to be an informal opinion because we are unable to obtain an official reaction from our Board of Directors in the time frame required for your Subcommittee's work. Thus, it must be stressed that the opinions expressed in this letter are my own and should not be construed to represent the official position of the AIA.

First, I must plead ignorance concerning the Berne Convention and its details, although I generally know about its background. My comments will, thus, focus on the policy aspects of whether or not compliance with the convention will assist and encourage the free exchange of ideas as set down by our Founding Fathers in the U.S. Constitution.

The first through fifth questions posed in your letter are all premised on the same fundamental notion: that the owner of an architectural copyright possesses rights not merely in the plans and drawings for a structure, but in the aesthetic features of the structure itself. In light of this fact, it is clear that all five questions are governed by identical policy considerations. Therefore, I am providing a single general response which applies equally to each of the questions noted above.

The Constitutional mandate for all copyright legislation is derived from U.S. Const. art. I, sec. 8, cl. 8, which states that Congress shall have the power:

To promote the progress of science and the
useful arts, by securing for a limited time
to authors and inventors the exclusive right
to their respective writings and discoveries.

The present proposed language would produce precisely the opposite result, frustrating rather than fulfilling the Framers' intent by creating a "chilling effect" on architectural progress. The reasons for this conclusion are stated in detail below.

There are three aspects of architectural works: 1) ideas, (aesthetics); 2) media specifically designed to convey information regarding a structure, such as drawings and plans, and; 3) "functional media", such as buildings, which serve a utilitarian purpose while simultaneously giving tangible expression to an architect's intellectural objectives. Currently, only the second of these three aspects is afforded copyright protection in the United States. The general public has benefitted, since this system permits the free flow of ideas which has given rise to many of the most admired examples of American architecture. The same results are by no means assured under the proposed changes implied in the questions. For example, the pleasing aesthetic unity presented by a New England fishing village would have been, at best, extremely difficult to achieve had someone possessed a copyright on white clapboard Cape Cod cottages and picket fences. A more modern example of this phenomenon is the multi-story hotel atrium, complete with glass elevators, skywalks, and hanging foliage. This concept, which is featured in, but not limited to, Hyatt Regnecy hotels, was originated by Atlanta architect John Portman and has "caught on" in a way that would not be possible under the proposed copyright system.

It is clear that the proposed language would encourage
architectural homogeneity of quite a different sort. Architects
would have a strong economic incentive to repeat their own
earlier copyrighted work, in order to avoid the exposure to
potential liability inherent in creating new, (and possibly
infringing), designs. The aesthetic unity of a New England
fishing village is the result of the free exchange of ideas.
Under the proposed language, however, unity would be achieved not
by free choice, but out of fear of litigation.
The present
system permits architects to experiment by incorporating new
stylistic ideas developed by others, but expressed in each
architect's own and different way into their drawings. The end
result is often a structure which is distinctly different but
similar to its predecessor. It is also worth noting that the
proposed system could have a significant negative impact on the
widely lauded concepts of stylistically homogeneous neighborhoods
and regional architecture, since it would encourage the work of
individual architects, rather than geographic areas, to become
similar.

A further problem with the proposed language is that it blurs the
distinction under United States law between copyright protection
(protecting the written or graphic expression of an idea) with
patent protection ( protection of the idea itself or its physical
manitestation). This is most evident in Question five, which
asks whether "two dimensional representations of works of
architecture" should be deemed to be "non-infringing copies." It
is not the nature of the representation, but the source thereof
which is of prime importance in determining whether infringement
has occured. In any event, no useful purpose is served by the
erosion of this distinction. In fact, such erosion could lead to
unnecessary confusion in an already complex field of law. Under
these circumstances, an architectural copyright owner's rights
should continue to extend only to the plans and drawings for a
structure, and not to any feature of the structure itself.
Question six asks whether an architectural work should be a "work
made for hire" if it is specially ordered or commissioned under a
written agreement where the architect is not preparing the work
as an employee in the scope of employment by the other party.
This should be the result only if the contract between the
parties expressly provides so. Otherwise, an architect would be
precluded from ever repeating himself or herself, since the
building owner would also own the copyright to the structure. If
the proposals set forth in Questions one through five were also
adopted, the effect on the profession would be devastating.

It will be recalled that under those proposals, the only completely safe course for an architect to pursue would be to repeat his or her own prior, copyrighted designs. The effect of the proposal in Question six would be to foreclose even this limited source of inspiration to the architect.

I hope that the foregoing answers will be of help in your efforts
to bring U.S. Copyright law into compliance with the Berne
Convention. If I or any member of my staff may be of further
assistance to you in any way at all, please do not hesitate to
call. Thank you once again for this opportunity to participate
in the legislative process.

Sincerely,

Barch. Ellection

Dale R. Ellickson, Esq., AIA

Senior Director, Documents Program

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