Berne Convention for the Protection of Literary and Artistic Works

Moral rights are European in origin, emanating from nineteenth-century European legal theory. ^{Footnote 5} The concept of moral rights was first developed in France and has historically been incorporated into the legal regimes of civil law countries. ^{Footnote 6} These rights became internationally entrenched in, and were emphasized by, the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention). ^{Footnote 7} The Berne Convention was instigated by Victor Hugo in his position as the president of an international literary congress. The congress was organized in 1878 by the French Societe des gens de lettres following the ‘Universal Exhibition,’ which was held in Paris and hosted by the French government. In addition to Victor Hugo, the congress boasted distinguished authors, publishers, and prominent public figures from across Europe, the United States, and Russia. ^{Footnote 8}

The congress primarily concerned itself with the rights of the author with respect to his or her work, and it requested that the French government undertake an initiative to convene an international conference with the purpose of developing a uniform convention to regulate the use of international property. The French government did not act in response to this request, and, instead, the initiative was taken up by Switzerland six years later in the form of the Berne Convention. ^{Footnote 9} In the interim, the international literary congress decided to establish the International Literary Association—a group open to literary societies and writers from all countries, again with Victor Hugo as its president. ^{Footnote 10} Five years after its inception, the association expanded to include artists and again was renamed as the International Literary and Artistic Association (ALAI). ^{Footnote 11}

Since its establishment, the association has played an integral role in international copyright development, specifically advocating for a universalist integration of copyright laws in which the protection of intellectual property is consistent from country to country. ^{Footnote 12} The association determined that a constitution of a union of literary property was required to best give effect to its universalist approach to intellectual property protection, and it proposed a conference of interested groups to discuss and determine this scheme. ^{Footnote 13} It was against this background that the 1883 ALAI Conference was held in Berne, Switzerland, and the resulting Berne Convention came to fruition. The Berne Convention was signed on 9 September 1886 by 10 parties, including Belgium, France, Germany, and the United Kingdom. ^{Footnote 14} This number has since increased to 168 signatory parties. ^{Footnote 15} The convention has been revised and amended several times since its inception. The 1928 revision in Rome introduced moral rights.

Although the ALAI Conference was held in Switzerland, both it and its ensuing convention were strongly influenced by the French conceptions of intellectual property propagated by the ALAI. The ALAI has always been closely tied to France: its headquarters are in Paris, and, particularly in its nascent stage, is largely comprised of French members, led by Hugo. Thus, it was not surprising that the Berne Convention was inspired by, and reflected, the French concept of droit d’auteur (the right of the author). Droit d’auteur stands in stark contrast to the traditional Anglo-Saxon notion of copyright law, which is primarily concerned with the economics of intellectual property. Thus, modern intellectual property law developed, and a system was implemented, heavily influenced by the French preference to put the rights of the author at the center of intellectual property protection.

Although the Berne Convention has been broadly implemented, it does not mandate a particular form of copyright legislation, and, as such, countries were left to determine how and to what extent these rights would be protected. Not surprisingly, as a result of this freedom, copyright law is not universal. However, practice in common law and civil law systems are generally not as diverse today as they once were. Traditionally, it has been broadly accepted that the civil and common law treatment of moral rights of an author are distinct. ^{Footnote 16} For example, the United States’s Copyright Act exclusively grants economic rights to authors, while the copyright statutes in France, Germany, Italy, and Canada protect the non-economic moral rights of an author. ^{Footnote 17} This dichotomy has traditionally been attributed to philosophical differences, with the former being significantly less focused on the creator and the latter being primarily concerned with the interests of the author. ^{Footnote 18} This sharp divide has recently been softened.

No matter the extent to which a country has legislatively enshrined moral rights, the importation of this type of protection into copyright law imagines, at its rudiments, moral rights as the rights of the author in relation to his or her work. The two branches of copyright protection (economic rights and moral rights) have converged, with common law jurisdictions tending toward the civil law scheme, which embraces moral rights. This shift toward emphasizing the rights of the author can be attributed to the importation of moral rights theory in common law copyright protection (in addition to previously established economic protections). These jurisdictions have moved to a copyright-based conception of moral rights that is notably centered on the author. ^{Footnote 19}

Moral Rights Theory

It is likely that the first example of artists truly claiming any sort of right to a work through the concept of authorship occurred in Greece in the seventh century bc when artists began to sign their sculptures and paintings. ^{Footnote 20} In the following centuries, artists advocated for certain rights such as who could be an artist or what rights were conveyed through legal agreements with commissioners. A consistent right sought by artists, particularly during and following the Renaissance, was that of authorship and the protection of the artist’s individuality. ^{Footnote 21} Once an artist sold a work, his or her claim to the piece was extinguished and an owner was entitled to do as he or she pleased with the art. It was not until the nineteenth century in France that artists were granted true rights of authorship that survived a sale of a work of art through moral rights.

Moral rights are a type of intellectual property right and are based on the idea that an author’s work is an extension of his or herself. ^{Footnote 22} An attack on the work was regarded as a personal attack on its creator. ^{Footnote 23} In European legal theory, an artist’s interest that arises from embodying a part of his or herself in a work was referred to as a moral interest, and, consequently, the ensuing right became known as a moral right. The moral right of an artist is typically classified as being a right of personality, distinguishable from property or patrimonial rights. ^{Footnote 24} These rights are intended to recognize and protect an artist’s individual personality.

There are three broad justifications for moral rights for artists. The primary rationale stems from the notion that art is an extension of the artist’s personality or an expression of his or her innermost being. ^{Footnote 25} Scholars have described this relationship between an artist and his or her art as one akin to that between a parent and child. The artist cares so deeply for the work and imbues so much of his or herself in it that the art is transformed into a child in the eyes of the artist rather than being a mere object. ^{Footnote 26} This deeply rooted connection to the art is what gives rise to feelings of anguish in an artist when a work is somehow modified by an owner. Moral rights arise from a belief that an artist’s spirit is injected into his or her work during the creative process. ^{Footnote 27} As a result of this emphasis on the personal connection between an artist and art, moral rights historically have been, and typically continue to be, classified as being of a spiritual and personal nature.

The second justification for moral rights concerns an artist’s economic protection. Although French scholars in their original conception of moral rights were quick to distinguish these interests from the Anglo-Saxon focus upon the economics of intellectual property rights, moral rights advocates recognize that an artist relies on his or her reputation in the art market. This right has been outlined in the following quotation:

The third rationalization for moral rights protection is concerned with the rights of the public. This rationale is a more recent development than the prior two and has become prominent in moral rights legislation and jurisprudence. ^{Footnote 29} The premise of a public interest in moral rights is that the public has an interest in preserving the integrity of cultural property because art has an inherent public value and thus is deserving of protection. ^{Footnote 30}

The Rights

There are three rights generally recognized as being provided by the moral rights composite: attribution, integrity, and association. These rights apply to authors of an original work that is protected by copyright, whether or not the author still owns the original copyright. Moral rights exist for the life of the copyright and can be transferred to an author’s estate. These rights can be waived but not assigned to another person or entity inter vivos. Attribution protects an author’s right to be associated with a work as its creator (either by actual name or under a pseudonym) where it is reasonable in the circumstances. ^{Footnote 31} The author may also insist on anonymity and object to others claiming to be the creator of the work. ^{Footnote 32}

The second right granted under the moral rights rubric is integrity. The right of integrity prohibits a work from being “distorted, mutilated or otherwise modified” in a way that prejudices the author’s honor or reputation. ^{Footnote 33} The prejudice qualification allows for certain benign modifications of a work that will not be considered an infringement of an author’s moral rights. Parody, loyal cinematic adaptations of books, and good faith restorations of works are examples of such alterations. ^{Footnote 34} Any alteration to a painting, sculpture, or engraving is presumed to prejudice an artist’s reputation and, consequently, to infringe his or her moral rights.

Association is the third class of moral right. Association allows an author to control the use of his or her work in association with a product, service, cause, or institution. ^{Footnote 35} This right is closely tied to integrity, and, as such, it is only infringed if the use prejudices the author’s reputation or honor. ^{Footnote 36} As noted, moral rights can be waived. The waiver does not need to be in writing and may be implied. An artist has significant freedom with respect to waivers of moral rights. They may extend either to a part or whole of the lifespan of the associated copyright or for all or some of the rights and may be granted gratuitously or in exchange for consideration. ^{Footnote 37}

The Value of Cultural Property

A significant assumption underlying moral rights theory and law is that art (and cultural property, more broadly) is unique in its value, deserving special treatment as compared with other types of property. ^{Footnote 38} The following examples clearly illustrate societal reverence for visual art and cultural heritage. A French court, discussing the restoration of a piece of art and the application of moral rights, noted that these rights act to safeguard the highest concerns of human genius. ^{Footnote 39} The court was adamant that the artwork in question be kept in its original form and protected from the questionable intentions of persons motivated by economic concerns or some transient fashion. ^{Footnote 40} In an address made on 26 May 1944, General Dwight Eisenhower issued a directive for the United States’s invasion of Italy, stating that the army, in its fight across Europe, would come across monuments and cultural centers that were symbolic of what it was fighting to preserve. ^{Footnote 41} Joseph Sax, a proponent of the public interest in art protection and of the significant value of cultural property, posited:

Academics and artists acknowledge that the exact reason art and cultural property is placed in a special category of its own, and why it has such an impact on society, is not easily put into words. ^{Footnote 43} John Merryman, a champion of the protection of cultural property, recognizes the limits of language in fully capturing the merit of art but offers examples of the sources of public interest in cultural property: truth and certainty, morality, memory, survival, pathos, identity, and community. ^{Footnote 44} He also emphasizes the utility of cultural property in preserving and embodying information as well as in contributing to political ventures. ^{Footnote 45}

Although it is difficult to articulate the reason that cultural property is integral to society, most arguments touch upon a broad public interest as justification for ensuring a unique legal protective scheme for the arts. Art and cultural property are valorized by society and held to be fundamental to the human experience. In answer to the question, “why do we care about art,” Albert Ensen explains that there is not one reason, but various reasons, that range from academic considerations to spiritual beliefs:

Andre Malraux commented on the public interest in art, noting that there are two types of art: those that belong to the country where it was created and those that belong to the world. ^{Footnote 47}

It is this ineffable value of art that is cited by advocates of cultural property protection as the catalyst to preservationist policies. The common thread that unites the vast majority of theories about the importance of cultural property is that the value identified is with respect to the public or culture rather than to an individual artist or creator. When Melina Mercouri spoke about the infamous Elgin Marbles, stating: “this is our history, this is our soul,” she was not referring to the creators of the Parthenon but, rather, to the people of Greece. ^{Footnote 48}

The Artist as Genius: An Original Creator

Authorship is a recent conception and is indivisible from the relatively recent commodification of literature. ^{Footnote 50} As Mark Rose notes, proprietorship is the distinguishing characteristic of the modern author. ^{Footnote 51} Although Rose was referencing authors of written works, his point is easily extrapolated to other forms of authorship and creation, such as that of the artist. Scholars are quick to note that this notion of the author as an original creator is a myth. ^{Footnote 52} The romantic and individualistic assumption that is inscribed in intellectual property law, and particularly in moral rights, belies the common collaborative process that often contributes to artistic works. Northrop Frye spoke to this myth of individual authorship, asserting that all art is conventional but that this quality has been veiled by copyright’s desire to treat works as though they are unique and were created in isolation. ^{Footnote 53} Frye remarks with respect to this conception of individual authorship:

Frye vehemently rejects any critical perspective that imagines that an author can sit down and produce a work in what he refers to as a “special act of creation ex nihilo.” ^{Footnote 55} Instead, he asserts that artistic expression interacts with, and reflects, prior works of its kind, the way that scientific theory responds to something that already exists in nature. ^{Footnote 56}

This collaborative creation of artistic works became obscured with the rise in private enterprise for authors and artists, and the commodification of artistic works, as parties began to benefit both economically and in reputation from a presumption of originality. A sufficient degree of originality and invention, in which there is a clear end to one work before another begins, is required to attract intellectual property protection. ^{Footnote 57} However, this conception is at odds with much modern literary and artistic thought in which collaboration between works and the enabling of one work from another is emphasized. ^{Footnote 58} Jessica Litman speaks to this collaborative process, noting that the idea that every new work is somehow based on works that came before it is such a truism that it has become cliché. ^{Footnote 59}

The notion of the autonomous author is the child of artistic commodification. Michelangelo did not regard his art as a method of self-expression. ^{Footnote 60} The Vatican viewed the Last Judgment as its own, altering it because it violated Catholic dogma. ^{Footnote 61} Artists were once referred to as skilled manual workers. ^{Footnote 62} The idea of the author as a creative genius gained favor in the eighteenth century during the Romantic movement of art and literature. Since then, Michel Foucault notes: “[T]he author has played the role of the regulator of the fictive, a role quite characteristic of our era of industrial and bourgeois society, of individualism and private property.” ^{Footnote 63} Similarly, Rose emphasizes the recent development of intellectual property and the role of the author in its creation:

It was this same social climate that gave rise to moral rights, and, thus, the notion of artistic authorship and the conception of intellectual property rights granted to the author developed in response to a similar cultural shift toward the individual, with the former acting as a catalyst to the latter. This Romantic construct of authorship created a hierarchy for evaluating art that attributed greater value to a work if it was thought to be truly original. ^{Footnote 65} This notion of authorship has been highly influential in legal discourse and has catalyzed the development of copyright doctrinal structures rooted in the idea of an autonomous author.

This individualistic conception of the author no longer accurately reflects artistic practice, and it has been fervently denounced by contemporary artists for this failure. ^{Footnote 66} Since copyright (and also, more specifically, moral rights) is framed as protecting the original works of a specific author, particular modern forms of artistic creation do not easily fit under its aegis. Non-legal and cultural scholars have let go of the Romantic vision of the author, but its grasp on the legal community remains steadfast as it expands to protect new forms of work, such as photography. ^{Footnote 67} Copyright law was quick to embrace photography, emphasizing that the photographer, rather than the subject, is to be considered the author. ^{Footnote 68} Clearly identifying an author of a photographic image has become difficult with technological advances. The idea of a professional photographer creating a studio portrait (as was the case in Burrow-Giles Lithographic Co. v Sarony) no longer represents the creation of most photographs. ^{Footnote 69} A significant number of photographic images are created with camera phones and are uploaded to social media applications such as Facebook or Instagram. These images can in turn be redistributed by any number of other persons, and, in doing so, the photographs can be filtered, altered, or re-imagined. Is the individual who took the original photograph the only “author”? Moral rights do not easily account for this type of building of one work, and its usefulness is limited when applied to this type of artistic process. It seems logical that the party that created the first version of the image is an author and has a claim to moral rights protection. What is less clear is the role of all of the subsequent parties who interact with the image as if it were their own.

Moral rights may grant an original author a cause of action against persons that modify an image. However, it is common for individuals to use social media to make an image their own through the application of filters or particular types of editing (such as superimposing another image on the first one or stitching multiple images together into one larger photo). Moral rights can act to prevent this type of collaborative interaction with an original image if an author claims prejudice, but this does not accord with modern practice. To subjugate the artistic experience of the masses in favor of a narrow view of true authorship is not in keeping with normal social discord. Further, it is interesting to consider at what point a party’s interaction with an image transforms it into a second “original work.” Copyright law’s emphasis on original authorship does not allow for a later work that has been transformed through acts of another to be considered “original.” Although copyright has been interpreted to emphasize and require a creative component to authorship, it arbitrarily refuses to accept a creative process in which one author builds upon another’s work and adapts it into something else entirely.

Copyright’s fixation with the construct of the original author at the centre of creativity obscures the notion that the creative process always features degrees of artistic appropriation and transformation. T.S. Eliot indirectly referred to this myth of the original author in his dedication of the poem The Waste Land to Ezra Pound. In the dedication, Eliot calls Pound “the better craftsman,” apparently referencing Pound’s heavy editorial hand in the work. ^{Footnote 70} Although the notion of authorship has evolved in the artistic world, the Romantic conception of authorship has maintained a hold on the legal imagination and on moral rights law.

The Public Interest: Preservation, Destruction, and Alteration

It is obvious that an artist’s interests and those of the public do not always converge, though Western moral rights law presumes this to be the case. Moral rights emphasize the importance of preserving works both for the public good and for the economic and personal benefit of the artist. This notion is premised on the assumption that an artist will enforce his or her moral rights in a way that is in the best interest of the public. However, it is clear that this is a faulty assumption and that public interest in particular types of cultural property is not always effectively served by the actions of the original artist or creator.

The Dethroning of Authorship

As noted, copyright law is preoccupied with the identification of one true author of a work. This fixation is problematic when applied to the collaborative process. Cultural theorists have proposed moving away from the idea of authorship and toward a construct of anonymous creation. It may seem scandalous to accept that artistic works are not talismanic objects of originality, but it is important to recall that copyright and the artist as a genius are relatively recent concepts. As Frye stresses, authors are not extraordinary individuals who create ex nihilo, and a societal perspective or a legal doctrine that presumes as much is denying the reality of the artistic experience. Copyright and authorship are not untouchable natural concepts but, rather, recent formations developed in response to a particular social climate in the eighteenth century. As Foucault observes:

Foucault’s conception of a new creative world in which works develop “in the anonymity of a murmur” is symptomatic of the growing consensus among cultural theorists that the concept of authorship cannot coexist with current artistic practices. ^{Footnote 141}

Technological Advances

Foucault recognized that at the time of his consideration of what is an author society was in the midst of a significant change that would catalyze the move away from traditional notions of authorship and intellectual property. ^{Footnote 142} David Lange elaborates on the relevant social movements, pointing to technological advances and the increasing reverence for freedom of expression. ^{Footnote 143} He is quick to note that the interests inherent in moral rights (plagiarism, attribution, distortion, mutilation, and the like) are a bourgeois obsession but that the broader effect of all intellectual property doctrines is the constraint and authorization of expression by the state (bourgeois or not). ^{Footnote 144} Lange emphasizes that intellectual property law arose out of social and legal climates that largely deferred to the authority of the Crown and catered to bourgeois concerns. Any society today that is critical of the rationale behind state action and privileges personal expression cannot be easily reconciled with a legal doctrine such as moral rights and intellectual property that was developed in that larger history and at its core has remained stagnant. ^{Footnote 145}

An examination of the modern day suitability of intellectual property law necessitates a consideration of the current technological state. As mentioned, copyright law developed as a response to particular technological innovations that gave rise to the commodification of creative works. Scholars have begun to consider whether authorship as it is conceived in the current copyright scheme can persist in the face of evolving technologies. The innovation of the printing press gave rise to intellectual property law, though the contemporary background of evolving technologies has displaced the press as the primary means of communication. Modern society is more reliant on television and various forms of social media as forms of communication and personal expression. Technology and intellectual property are inextricably linked and as one advances so should the other:

The strain between this concept of individual authorship in light of recent technological advances in art is exemplified by George Legrady’s project Pockets Full of Memories. Classified as a type of self-organizing art, this work was featured in a physical installation at Paris’s Centre Pompidou in 2001. ^{Footnote 147} The installation allowed gallery visitors to scan various objects (such as a set of keys, pictures, body parts) and then answer a brief set of questions about those objects. ^{Footnote 148} The work would then display the objects on a digital mural in “unpredictable, surprising, and emergent patterns of proximity.” ^{Footnote 149} This work blurred the line between artist and viewer: the gallery visitor becomes involved in the creative process in a way that makes it impossible to wholly attribute the work to Legrady.

A new mode of production has taken root that is hinged on collaboration. In the first half of the twentieth century, it was hypothesized that production was motivated and restricted by transaction costs. ^{Footnote 150} More recently, creation has become more collaborative and, consequently, less concerned with economic and organizational efficiency. ^{Footnote 151} A brief examination of this phenomenon generates an undeniable and simple point: collaborative efforts are emerging everywhere, creating a unique cultural production system. In his writings about what he refers to as “peer production,” Yochai Benkler highlights several forms of collaborative creativity. Importantly, he notes that this process leads to production on a “nonproprietary basis.” ^{Footnote 152} He notes that that advent of computers and modern technological advances has led to a dramatic shift in the scope, scale, and efficacy of collaborative processes.

Benkler identifies three distinct functions of peer production. ^{Footnote 153} First, there is the initial creation of a human statement, such as the writing of an article or the drawing of a picture. ^{Footnote 154} Second, there is the mapping of that utterance onto a pre-existing knowledge base. ^{Footnote 155} The utterance must be found to be relevant and credible. The final function is the distribution of the original piece to a new audience. ^{Footnote 156} Peer production in this way is made easy via the Internet. Benkler points to various examples of online non-proprietary collaboration. Three notable examples are the advent and maintenance of Wikipedia, the simultaneous efforts of tens of thousands of individuals to map the craters of Mars (a task that would typically be completed by individuals with doctoral degrees), and Napster. ^{Footnote 157}

Peer production is a relatively modern conception, but it is now an established form of cultural production. This shift away from the notion of a singular creator and toward collaboration poses a problem for a legal scheme that is unable to bend to new trends. The dependence of intellectual property law on technological developments must mean that the continual innovation of technology may have the effect of rendering laws specifically tailored to, or addressing, previous generations of progress outmoded. Recent developments in technology and artistic expression exacerbate the ill fit of a legal scheme drafted in response to the soon-to-be-antiquated printing press.

Foucault’s New World

In his critique of authorship, Foucault predicts that the author function would disappear in the wake of social change. ^{Footnote 158} He opines that it would be replaced by another system of constraint, but he does not articulate exactly what that system would look like and suggests that perhaps it could not be known until it was experienced. ^{Footnote 159} As the critical examination of the copyright system has increased, scholars are rejecting the arguments that support its continuation in light of contemporary advances in the social conception of expression and art as well as technological innovation. ^{Footnote 160} Foucault’s vision of the death of the Romantic construct of authorship has gained significant traction, and it is thought inevitable:

The demise of the construct of autonomous authorship should not be equated with the complete displacement of any type of authorship. A certain desire for ownership and attribution of a work is logical and likely inevitable. Copyright cannot be immediately abandoned, but it does need to evolve to allow for a collaborative artistic process and to accept the role of appropriation in creation. The relentless emphasis on the author and the original work needs to give way to a more free-flowing, interactive expression that truly serves the public interest and facilitates the meaningful impact of art in society. As they currently are, the moral rights of authors and artists cannot stand.