27 December 2003

And the droit morale of This Story Is…

The European Commission has recently compiled a report on trade barriers with the US (PDF, 485k). One of the most prominent concerns is authors' "moral rights":

Despite the unequivocal obligation contained in Article 6bis of the Berne Convention, to which the US acceded in 1989, to make “moral rights” available for authors, the US has never introduced such rights and has repeatedly announced that it has no intention to do so in the future. It is clear that while US authors benefit fully from moral rights in the EU, the converse is not true, which leads to an imbalance of benefits from Berne Convention membership to the detriment of the European side.

Id. at 63. Leaving aside what "moral rights" are, I am afraid that this criticism misunderstands what an "author" is under US copyright law. (That the misunderstanding is justified and correct is beside the point.)

The "real" moral rights problem is that in the European conception, moral rights extend only to natural persons. However, the majority (at least in terms of dollar value) of copyrighted works in this country are not copyrighted by the natural person(s) who actually created them; they are instead works for hire. Congress, in its dubious wisdom and doubtful constitutionality, has defined the investor in a WFH as the author. 17 U.S.C. § 101. Thus, the European Commission and US copyright law are actually talking about two incompatible things.

Gee. What a surprise.