Introduction*
One of the most noteworthy developments in transnational copyright law over the past twenty years has been the adoption of statutory moral rights regimes in a number of countries that had previously ardently rejected the civil law concept of moral rights as completely alien to their legal tradition, including the United States, the United Kingdom, Australia, Ireland, and New Zealand. The standard scholarly reaction to these developments is to ask what they mean for the two classic questions of comparative moral rights law, namely whether the common law countries fulfill the requirements for moral rights protection under international law and whether the common law countries provide a degree of protection comparable to that available in civil law countries. In this context, the enactment of statutory moral rights appears to be simply another factor to be considered when measuring the substantive level of moral rights protection in the United States, just as the Supreme Court’s recent Dastar decision, the copyright management information provisions of the Digital Millennium Copyright Act of 1998, or the Family Movie Act of 2005 are factors in this type of analysis. However, among these factors, the recognition of specific moral rights as part of copyright law is particularly significant, because it symbolizes a fundamental break with the traditional conception of moral rights in common law countries.
After all, it had been a canon of comparative copyright scholarship that the most significant difference between Anglo-American and Continental European copyright law was their respective attitudes toward moral rights. The inclusion of moral rights in statutory copyright law was generally understood to be the defining feature of the Continental copyright tradition, while the lack of statutory moral rights protection was considered to be a crucial component of the Anglo-American copyright tradition. This dichotomy had been celebrated and cultivated since World War II on both sides of the Atlantic to the point where the statutory protection of moral rights or the lack thereof had become an integral part of each legal system’s identity, essentially dividing the world of copyright into two fundamentally different ideal types, one that includes moral rights, and another that excludes moral rights. The common law courts were fully aware of this dichotomy, and while they recognized the existence of the concept of moral rights in civil law countries, they uniformly rejected its applicability in their own jurisdictions. Against this background, the adoption of civil-law-style moral rights legislation is a major shift in terms of copyright theory, because it eliminates the key feature that distinguished common law from civil law copyright systems. The fact that the law of moral rights is a field in which the United States is an importer rather than an exporter of legal concepts makes this shift all the more noteworthy in times in which it is typically the law of the United States that is received in other countries, especially in intellectual property law.
This Article is a study of the now dominant mode of conceptualizing moral rights as inalienable rights of authors in their works. My purpose is to use comparative law to enhance our understanding of this particular concept of moral rights and to assess the effects of the recent wave of moral rights legislation in the United States and other common law jurisdictions on the substantive level of protection available to authors. More specifically, my claim is that, if the goal was to increase the overall protection of authors, it was a step in the wrong direction for the common law countries to adopt the civil law concept of moral rights, because the statutory moral rights regimes that were enacted in the United States and the United Kingdom have likely reduced rather than increased the aggregate level of authorial protection.
My analysis will proceed in four steps. Part I presents and illustrates the orthodox theory of moral rights by drawing upon the statutory moral rights regimes of France, Germany, and Italy, the strongholds of the Continental moral rights tradition. Part II disaggregates the civil law concept of moral rights into the concrete decisional rules of which it consists in order to create a reliable basis for comparison across different moral rights systems. Part III compares the moral rights orthodoxy to the conceptual alternatives traditionally used in countries which did not subscribe to the standard concept of moral rights until recently. My analysis will focus on the United States and the United Kingdom as two major representatives of the common law tradition and on Switzerland as an example of a civil law country that resisted the adoption of the Continental moral rights doctrine for decades. Part IV evaluates the effects of the newly enacted statutory moral rights regimes on the overall protection of authors in the United States and the United Kingdom.
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