Tuesday 31 July 2012

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


Monika said...

Ah, sometimes it helps to read on: Article L.121-3 states that the tribunal de grande instance may issue "any appropriate order" if the author's representatives blatantly abuse the right of divulgation either by exercising it or failing to exercise it, apparently upon application of, well, anyone, in particular the minister in charge of cultural affairs.

Hm, does that actually mean I could apply to have Kafka's works removed from France??? Don't worry, I wouldn't...

john walker said...

An economic right that cannot be traded (is inalienable) is a weird concept.

Crosbie Fitch said...

Discovering natural rights can be a shock to those brought up on a diet of privileges (legislatively created rights). Such a privilege as copyright is the natural right to copy, annulled in the majority (1709), to be left, by exclusion, in the hands of a few - hence why we have 'copyright holders' and not 'right to life holders'.

Moral rights are actually rights, not privileges, though their legislative recognition often enhances/corrupts them with proprietary aspects.

Given that we're endowed by our creator with rights (nature -> natural) and these are inherent and so a priori inalienable (as transferable as one's shadow) then it should not be surprising that they are not transferable as privileges, nor do they exist separately from the human being endowed with them.

Governments are instituted among men to recognise and secure our rights, not to create privileges (by necessarily annulling the respective right in the majority).

So, authorship is a fact and perpetual. Misrepresenting authorship is a deceit and a violation of the audiences' right to truth (from our natural/vital ability to apprehend the truth of our senses).

As to divulgation, while an author has a natural right to privacy, to exclude others from their writings, they have no right to gag those to whom they confide their writings. Confidentiality is a matter of trust, not the power to alienate another from their liberty to disclose that which they have been entrusted not to. Obviously, at the natural end of the author's life, so ends their natural right to privacy. However, those who inherit their belongings have their own privacy, so cannot be forced to disclose what they have inherited.

When you understand natural rights, you can then more easily understand where legislation strays from the path of securing rights to the granting of privileges, and where confusion inevitably arises.

A lot of confusion could be avoided if privileges weren't pretended to be rights, but then that rather undermines the need to persuade the public that privileges are 'good things'.

Monika said...

John, I agree. I'm not sure if it would count as abuse if the author's representatives demanded payment for authorising publication (in cases where the author did not object to posthumous publication). Given that the owner of the physical copy who arranges for publication of the work will receive a neighbouring right for twenty-five years (Article 4 Term Directive, Article L. 123-4 CPI) one could argue that it's fair enough, but on the other hand a moral right is not really supposed to bestow economic benefits after the economic rights have expired.