Pondering Perpetual Moral Rights - Divulgation

Franz Kafka

Perpetual moral rights are a strange thing not only to the minds of common lawyers, but to those of German jurists as well. German monist copyright treats economic and moral rights as two inseparable sides of the same coin, which among other things means that copyright cannot be assigned, although exclusive licences concerning the economic rights are possible.

The French do things differently and provide for perpetual rights of divulgation, attribution and integrity (Articles L.121-1 and L-121-2 Code de la propriété intellectuelle – CPI). When it comes to the right of divulgation, Article L. 121-2 CPI states that after the author’s death, this right is exercised by the executors of the author’s will. If the author did not appoint any executors or once they are deceased, and subject to the author’s will to the contrary, the right is exercised by the author’s descendants, spouse, or any other heirs or legatees.

Not only do I spot potential for an orphan works problem here, but I also wonder what happens if the author made it clear that she did not wish for her work to be published ever. Does "the author’s will to the contrary" only refer to the person who shall exercise or not exercise the right, or does it also mean that the author may bind future right holders to her decision never to have the work published at all?

If the former is true, it seems to me that the right holders actually receive a perpetual economic right as well, albeit a one-off one, as they may demand payment in exchange for their permission to publish. If the latter is true, who makes sure that the right holders adhere to that wish? How come, for instance, that Kafka’s posthumously published works are available in France even though he expressly asked for them to be destroyed?

Any thoughts will be very welcome!

Photograph: http://commons.wikimedia.org/wiki/File:Kafka1906.jpg / http://www.zeno.org - Zenodot Verlagsgesellschaft mbH