^B00:00:20 >> Good morning everybody. Good morning copyright experts and authors. ^M00:00:24 ^M00:00:27 My name is Maria Pallante. I'm the United States Register of Copyrights. It's a great privilege and pleasure to welcome you here today to hear about authors' attribution and integrity. My staff and I have been looking forward to these discussions for a long time. Moral rights are something that we haven't talked a lot about in the United States in recent years. And so today, this symposium marks the beginning of a very important conversation that will eventually extend to a formal public process. I want to extend a very warm welcome to all of our panelists who are here today, including those of you who have come from other cities to be part of this conversation. I'm very pleased that we'll be hearing from a wide range of perspectives. Legal, scholars, industry representatives, and perhaps most importantly authors, composers and artists. I want to thank my staff for the very hard work that went into pulling this together in the Office of Policy and International Affairs, headed by my colleague Associate Register, Karyn Temple Claggett. And I also want to thank Sandra Aistars, who's sitting here to my left. And all of her colleagues at George Mason University Law School in the Center for the Protection of Intellectual Property. Not only for collaborating on this particular symposium today but for being one of our very important academic partners. This is the, I think, third academic partnership we have along with Stanford University School and George Washington University Law School. And it means everything to us to be able to collaborate in academia. As Register, I have advised Congress to undertake a comprehensive review of our copyright law. That started in 2013. And I have noted in testimony that unfortunately the rights of individual authors have been lost in the conversation while they should really be the focus. Members of the House Judiciary Committee and the witnesses who testified before the Committee also identified moral rights issues. Including attribution and the ability of creators to reuse, excuse me, refuse certain uses of their works, as some of the most important aspects of a well-functioning copyright system. The United States is, of course, obligated to recognize authors' moral rights under several existing treaties. Some, however, have begun to question the strength of moral rights protection in the United States, in light of recent and perhaps not so recent case law. So today, we will explore a number of questions. We'll take a look at the current state of moral rights protection in the United States, and we'll compare our framework with that of other countries. We'll take a deeper look at attribution rights and how they are covered under US law. And we'll consider whether the law could be amended to better protect authorship attribution. Authors, composers and artists will share how they value and protect moral rights. Issues related to how licensing arrangements and contracts are used to supplement statutory rights will also be raised. And of course, we'll be looking forward to hearing everybody's thoughts in the discussion aspects of today's symposium. Today marks only the beginning of our conversation. After we reflect on what we hear today, the Copyright Office will issue a notice of inquiry, beginning a more formal process, including written public comments. Although at this time I don't know and won't prejudge the ultimate outcome of these inquiries to come, I can assure you that, as with all of our work, the process will be very public and very transparent. Finally, moral rights have been addressed by previous Registers of Copyrights. And I am very pleased to recognize my two previous predecessors, the Honorable Marybeth Peters and the Honorable Ralph Oman, both of whom are here today. So thank you very much for coming and I'd like to turn it over to Sandra Aistars. ^M00:04:29 ^M00:04:36 Good morning everyone. I'm Sandra Aistars. I'm a clinical professor at George Mason University School of Law. And I work with my colleagues at the Center for Protection of Intellectual Property on copyright issues on a day-in-day-out basis. But I'm also the daughter and the granddaughter of artists and authors. My father is a painter and a writer. My grandfather was an author and my grandmother an opera singer. Among my other relatives and friends, I can count many additional poets and painters and writers and rockers. These people have shaped my view of the world. The relationship that a creator has with his work is profound and personal. I know by firsthand observation from my very earliest days how closely integrated with the artist's personality and identity his creation is. It's not for nothing that artists often refer to their work as their babies. I grew up in the thick of art. My childhood was permeated by turpentine fumes and the tunes of the Metropolitan Opera Saturday afternoon broadcast, as my father painted in his studio and I chewed on the railing of my playpen. I have later fond memories of participating in naming parties for my father's paintings. He was much influenced by the abstract expressionists, so this was one opportunity to let my creative juices flow, with little to stand in the way of my genius. I was never one for names like Untitled or Abstract Number Five. Instead, I preferred to name his paintings, among other things, Green Pizza. And I don't know if my acumen in naming work combined with my father's good sense of humor gave that particular painting a boost, but I can vouch for the fact that it won awards and sold immediately. But I also remember vividly the bonfires that my father would hold to get rid of paintings that he did not feel proud of. These extremes of christenings and cremations of works are part of my DNA. But I think they're also understandable to any of you, even those who don't make their livelihood in a creative world and those who have not grown up with same sorts of influences that I have. These experiences bring into laser focus the emotional impact creative works have on our lives. Whether we're the creators or the beneficiaries of those works. You would think that all of these influences throughout my life would lead to my having formed very concrete views on moral rights issues, but that's not the case. And perhaps that's because the idea of moral rights has been so foreign to us in the United States. In preparing for this presentation, I dug into the academic literature on this topic. And I want to quote to you the introduction of an article by Susan Liemer, which aptly illustrates the state of our current understanding of moral rights in the US. She writes, "In 1997, a sculptor named Jan Martin won a lawsuit against the city of Indianapolis, using a little known federal statute called the Visual Artists Rights Act. The court found the city violated certain rights that the statute granted to Mr Martin when bulldozers destroyed his sculpture in the name of urban development. During the damages phase of the lawsuit, the court refused to award to Mr Martin the enhanced damages available under the statute because, after all, the city had been unaware of the statute. The Seventh Circuit had no problem affirming the District Court. How is it possible that ignorance of the law was a valid excuse?" So, so much for the principle that we learned in civics class, long before some of us went to law school to learn it again. That ignorance of the law is no excuse. This is one of the reasons why I'm honored to be partnering with the US Copyright Office in organizing this symposium. In order to take what might be the first strides towards a deeper understanding of how we value and how we implement moral rights protections for artists in the US. I'm eager to hear the varied perspectives of the speakers and to learn from the diverse sets of experiences across industries and internationally. Whether there are issues that would benefit from further inquiry. My initial perspective is that discussions about moral rights encompass many of the most compelling issues that arise concerning creativity in the digital world. Indeed, some scholars have commented that moral rights are really an avatar for discussing basic copyright tenants. But I'm particularly intrigued by these discussions because by examining copyright from a moral rights, rather than a purely economic perspective, I believe we move towards a fuller understanding of the creator's relationship with his work. Before we begin today's proceedings I'd also like to take the opportunity to thank numerous people at George Mason Law School who've contributed to making this event possible. My colleagues at the Center for Protection of Intellectual Property who provided economic, intellectual and moral support for this endeavor. In particular, thanks to Devlin Hartline, Kristina Pietro and Matt Barblan, my students in the Arts and Entertainment Advocacy Clinic, who helped prepare the moderators for these discussions. And the members of the Journal of International Commercial Law who will publish these proceedings. Particular thanks there go to Gabrielle Peters, the current outreach and symposium editor of the journal, and Tyler Del Rosario, the incoming outreach and symposium editor. To Taylor Hoverman, the current editor and chief, and Tanya Secor, the incoming editor and chief. And to Stephen Veit, the incoming managing and publications editor. ^M00:10:10 I encourage all of you to take a moment today during the breaks to stop by, familiarize yourselves with the journal and with the students, and to consider submitting an article for publication in the future. Thank you for being here. And thank you for contributing your thoughts and experiences. ^M00:10:26 [ Applause ] ^M00:10:30 >> And so with that I'd like to invite Karyn Temple Claggett up to moderate the first panel. And if the first panel could please come up. >> Our first panel today is entitled Overview of Moral Rights. And I think some might question us in the United States Copyright Office and CPIP focusing a whole day on moral rights and even questioning whether we actually have enough to talk about for a whole day with respect to moral rights in the United States. Because of that we wanted to start with an overview of moral rights so that everyone can have a kind of a basic understanding of what moral rights are. How different countries have implemented throughout the world. And exactly how the United States has implemented them, as well. I'm not going to go through everyone's bio in much detail. You guys have that in your conference materials, but I'll just briefly mention everyone in terms of their title and where they come from. First, I have June Besek who is the executive director of the Kernochan Center for Law, Media and the Arts and a lecturer at Columbia Law School in New York, where her research and teaching focuses on copyright and related rights. Next, I have Daniel Gervais. He is a professor of law at Vanderbilt University Law School and director of the Vanderbilt Intellectual Property Program. He is also editor in chief of the Journal of the World Intellectual Property and editor of www.tripsagreement.net. Next, I have Mark Schultz. He is the director of academic programs and cofounder of the Center for the Protection of Intellectual Property at George Mason University School of Law. He also serves as an associate professor of law at Southern Illinois University. And finally, last but not least, I have an alum of the copyright office, Eric Schwartz, who is a partner at Mitchell Silberberg & Knupp. He has over 25 years of experience as a copyright attorney, providing counseling on US and foreign copyright laws. Including rights, ownership and enforcement issues. So we clearly have a very excellent panel today. To kind of give you a basic background of moral rights before we go into more detail about how they are actually considered in the United States. And what we might need to do to amend or strengthen them here. I'm going to start off first with June. And I know, June, you have some slides, so I'll put those up real quick. Hopefully. All right. So the first question we have for you is just a general basic one. What are moral rights? And can you briefly describe them? >> All right. I just have to say that I love the question about whether we have enough to talk about all day. I mean we're lawyers [laughter]. You know we can talk about -- in this case we even something to say all day. But any case, moral rights are rights that an author has in her work that are separate and apart from economic rights. They're accorded to the author because her work is seen as a manifestation of her personality and expression of her inner self. Her baby, as I think the term was that Sandra used. The term comes from the French term droit moral, but that term doesn't really translate very well. Because the word moral has a different connotation in English. And some have suggested calling them instead personality rights or spiritual rights. Moral rights belong to the author, the creator of the work, and not to a licensee or to an employer. They can't be transferred to somebody else, although in some cases, they can be waived. The most commonly recognized moral rights in the world are the right of attribution, also known as the right of paternity. But you can see why I prefer not to use that term. But this is the author's right to have her name associated with the work she creates. In other words, the right to claim authorship. The second right is the right of integrity. The author's right to prevent unauthorized changes that would result in distortions, mutilations, or other modifications of the work. And then the third is the right of disclosure, right of divulgation, also termed. And this is an author's right to determine whether and under what circumstances the work will be introduced to the public. For those of you familiar with Harper & Row against the Nation that, that language is reminiscent of how the Supreme Court describes the right of first publication in the United States. And then finally there's the right of withdrawal. Some countries like France provide authors with the right to withdraw their works from the public, if they feel the works no longer represent their deepest convictions, their deepest beliefs. In essence, this right allows an author to retract economic rights that she's licensed to third parties. However, it's rarely recognized for a couple of reasons. One is that it really has to be based on a deep-seated conviction, which is probably actually related to the other reason. Which is the author has to bear the costs, and it can be very expensive to do this. So it's a rarely exercised right. Now I just want to mention that the top two rights are the ones most commonly recognized around the world. And the other two certainly exist but they're not as prevalent. At least not in those precise terms. ^M00:15:46 [ Inaudible Response ] ^M00:15:52 >> So the next question I guess is you talked generally about moral rights and what they are. Can you give a little bit of background, in terms of how did the concept develop historically? What is the foundation or basis for moral rights? Why do people think that those were important to have separate and apart from economic rights? >> I think a lot of us think of moral rights as kind of like an established body of law. But like many things, they really developed piecemeal, primarily in Europe until they were codified in the early 20th century. There were two principal theories on which moral rights were based. The first is called the monist theory. And it braces the view that authors' works are an embodiment of their inner selves inextricably interwoven with other rights. And not all of the rights of an author are commercial objects. Under this theory, economic rights are really a subset of moral rights, but as I said, they're deeply intertwined. And then there's something called the dualist theory, and both of these are from different philosophical lines of thought. But under the dualist theory, an author's personal and economic interests are separate and distinct, and can be protected by different bodies of law. So you can modify a creative work and you can sell it or transfer it, but the personality rights remain with the author. Now because countries took different legal approaches to moral rights, some embodied them in the copyright law but others embodied them in separate parts of their laws. But by the early '20s, there was sufficient similarity between laws that countries began to urge that these become part of the Berne Convention. Which, as you probably know, is the principal international copyright treaty and provides for minimum rights and national treatment. And essentially what people wanted was for moral rights to become one of these minimum rights that had to be included. And I'm not going to talk a lot about Berne. But I just want to mention that, in order to have moral rights be part of Berne, the countries had to make compromises. So the ones with the strongest body of moral rights essentially agreed that it would be sufficient, if these rights were not in a specific body of law, whether copyright or another. They didn't have to be codified, but they could be in other places in countries' laws. And this was done so that countries like the UK, Australia, could join without it having to amend their laws, if they believed that they had sufficient rights. And this will come up later when we talk about how the US joined. So the moral rights are now embodied in Article 6bis of the Berne Convention. And I'll leave it up there, but I know that we'll talk about that more. There are other provisions. This is just 6bis one. Just a couple more things I want to mention. How long moral rights last? Well they last at least as long as the economic rights, but some countries have moral rights that are essentially perpetual. And I guess that leads me to the next point, which I know Daniel's going to discuss, which is Berne members vary as to the scope and duration of moral rights. And some of the finer points we'll talk about later. I think the last thing I want to mention, if you could just advance that slide. I want to talk about one more right, which isn't really a moral right, but it's reminiscent of a moral right. It's an economic right, but it's considered an author-friendly right. And it's something that can't be waived. It provides that an author has the right to share in the proceeds from the sale of her work, even after the first sale. And this is -- oh, one more. Sorry. This is embodied in Article 14ter of the Berne Convention. And we call it, in this country, resale royalties. And the Copyright Office recently had a report on resale royalties recommending that they be embodied in US law. One last point. Which is that this is a little different from other Berne rights because it is not mandatory. But it is a right that countries can grant to other nationals, based on whether those nationals' country allows for this right. ^M00:20:00 So with that, I think I'll end and turn it over and move to the next question. >> Yes. And I think we'll jump around a little bit. I'll turn it next to Mark. Just to ask the question about kind of contrasting the difference between moral rights, as we've discussed, and economic rights, which is what we're more familiar here with in the United States. >> Certainly. Thanks. So moral rights are a somewhat uncomfortable fit within our system of intellectual property rights. So I emphasize uncomfortable but not impossible. That's because moral rights have evolved from a largely different moral and philosophical ground than traditional American copyright. According to legal historian James Willard Hurst, in matters of property, the US has preferred dynamic rather than static property, property in motion or at risk rather than property secure and at rest. This preference reflected the values of a country that seeks change and growth over status and security. And so this preference for property in motion over property at rest was reflected in numerous departures from European property institutions. We abolished primogeniture and entail. We disestablished churches. We forbade titles of nobility. And we certainly never viewed people's status as tied to the land like Europeans once did in medieval times. Americans were concerned with protecting private property, chiefly for what it could do rather than an identity it conferred or how it was tied to an identity. And so Americans were largely concerned with protecting people's method of making a living and their investments rather than their status or holdings. Now this focus on property, for what it can do, has led many to contend that the founders had a utilitarian view of intellectual property, and this contention's actually an anachronism. While the founders were likely mostly aware of Jeremy Bentham and utilitarianism, as it was emerging at the time, they weren't utilitarians. The founders' views on property, including intellectual property, were instead fostered in a natural rights philosophy. The utilitarian justification for IP is a 20th century development, albeit, a very early 20th century development. And so the natural rights view sees life, liberty and property as inextricably intertwined. And a natural rights foundation justifies copyright because it enables creators to flourish, to survive and thrive, conditioned on the need of others to survive and thrive. And so this focus has led to a focus on copyright, as a property right, that facilitates the ability to make a living and to fully exploit and commercialize creations. Thus, copyright embodies Hurst's description of Americans' preference for property in motion rather than at rest. And reproduction right, the derivative works right, the distribution right, and public performance rights enable creators to secure an economic return. And one way in which they secure a return is being able to freely alienate their works to others who similarly employ them to survive and thrive. So, in our system, we prefer property rights unencumbered. Unencumbered from the ability to easily alienate them because we are focused on this ability to make a living. And anything that encumbers property rights reduces their value and reduces the ability to fully exploit them. And the utilitarian view similarly focuses on property in motion. Social utility is maximized when the production, dissemination and use of works is efficiently facilitated by copyright. Once again, property in motion. Now under either the natural rights or utilitarian view thus, moral rights are a somewhat uncomfortable fit. They appear to represent property at rest rather than property in motion. Property based on status rather than fostering either flourishing or efficiency. Still these moral foundations, either natural rights or utilitarianism can justify. They don't necessarily dictate that moral rights can't be part of our system of copyright. You can make a flourishing-based argument for moral rights, particularly I think with respect to attribution. It certainly enables creators to make a living. And it certainly likely helps them develop a reputation that allows them to flourish and encourages them to fully exploit their works. And if you're maximizing social utility, well that's usually easy, kind of to tell a just-so story about how social utility is maximized because creators will be more likely to create with these rights in mind. And moreover, one has to concede that we've come far from our foundations and natural rights or even early 20th century utilitarianism. By adopting the Berne Convention, we've essentially embraced a legal transplant, and that legal transplant has European roots. And thus, when we look at things like a copyright term and other aspects of our current copyright law, we certainly have departed from this natural rights base, copyright or utilitarian copyright, to embrace a copyright that does include these -- that is founded essentially on these features of European law. So thus, I'd say that although moral rights are an uncomfortable fit within a copyright founded on natural rights and/or utilitarianism, they can be made to fit. And indeed, in our modern statute, we have several justifications for copyright. Thank you. >> Thank you Professor Schultz. And you alluded to the fact that we have adopted some European roots, in terms of our IP system. We've kind of become part of the international discussion, in terms of having standards across the board globally. And so my next question is actually to Professor Gervais. What international standards do we have that are governing moral rights now? I think June alluded to one. >> Yes. Well, the Berne Convention clearly is the most important. Article 6bis that was on the screen earlier has three paragraphs. The first one is the one that has the two moral rights that June identified as the most common, and perhaps the most important, attribution and integrity. Beyond that there are -- in the Berne Convention itself, there are other moral rights. The droit de suite that June mentioned is arguably a type of moral right, but there's certainly another one in 10bis paragraph three. Sorry for the numbers here. But it's essentially of the same nature as 6bis. So Berne is really about attribution and integrity. What has changed in the last -- so the Berne Convention was last revised on substance in 1967. And then four years later they added an appendix for developing countries. But in 1971, the internet wasn't all that developed then, and there were other issues that have changed a little bit since then. And one of the things that has changed beyond technology and that I really want to underline is that the performers' protection level has changed. So the Berne rights are about authors only, but this morning Sandra was talking about opera and singers. Performers have acquired internationally the same level of recognition as authors in international treaties. So Article Five of two more recent treaties -- these names are a little mouthful but the WIPO Performances and Phonograms Treaty from 1996 has a moral right for essentially music performers, which is recognized in many countries. And the US actually is part of that treaty. And then -- I just thought I'd mention that. And then there's the Beijing Treaty on Audiovisual Performances, much more recent, 2012. Which also in Article Five has a moral right for audiovisual performers we understand that the president has sent the treaty to the Senate. So that's also relevant, I think. So basically international. If you look at standards -- those are the ones I would identify as most important ones. You noticed that I didn't mention the TRIPS Agreement? Because it does mention moral rights but essentially to say that they're not enforceable at the WTO. I think a little later we'll hear why, from, I think, Eric or someone else. >> Yeah. And so you mentioned that essentially right now we have three different treaties that expressly obligate member countries to recognize moral rights. The Berne Convention. The WPPT. And the Beijing Treaty. How have different countries actually implemented those rights in their national laws? >> Well, so that's a great question because when you talk about moral rights -- and both June and Mark alluded to this -- it's a little bit like the Zika virus, right? It comes -- >> I guess you're going to explain that [laughter]? >> Well, yes. No. But you'll see what I mean. It, you know, it comes from foreign countries. Ideally it should be entirely eradicated, but at the very least, it should be kept out of the United States. All right? So -- >> Okay. >> When you look around the world, though, you realize there are many ways of implementing moral rights. It's not like there's one package and you have to buy the one package and say this is the only way. ^M00:30:06 So first of all, the right of withdrawal that June rightly mentioned is very uncommon in foreign countries. And in countries where it exists, it's very rarely used. Because as June mentioned it -- for example, you're an author. Your book is in the bookstores and you want to take it out. Well you can in France, but you'll have to compensate the publisher for all the losses. So you really have to want to get your book out of the bookstores. So that right is really like a good croissant, right? You hear a lot about it but you never find it. ^M00:30:39 [ Laughter ] ^M00:30:42 So that leaves the other three. And so the right of attribution is implemented in several different ways. Many common law countries have implemented it. And for example, if you're obligated like law professors, for example, by rules concerning plagiarism, that in a way is a right of attribution. Some countries have used passing off. And many countries that don't have fair use but fair dealing, have fair dealing subject to mentioning the source unless it's not reasonable in the circumstances. For example, Canada. So that right is implemented in many different ways. The right of integrity -- here's the interesting thing. If you read the debates on 106A, which is the Visual Artist Rights Act that Sandra mentioned. There was some concern in Congress about destruction of originals of art, works of art. And that's the one right that's not in the Berne Convention. So we're very good at protecting that one right that's not in Berne -- well, not very good, anyway. But and in fact that right was specifically discussed at the Berne Convention revision. And countries said yeah, it would be nice to have a right against the destruction of originals, but there isn't one. So the right of integrity, though, is implemented in several different ways. So some countries just state it, and some countries define it. They'll define how. For example, the right would be in French, Canada would be and again an example that's not too far away. And finally the right of disclosure. This right of divulgation isn't that different, frankly, from the right of first publication, which has existed in common law copyright since, what? Early 18th century, at least. A couple of more things, if I may. So the things that differ from one country to another is waivability. Some countries have complete waivability. Countries like Germany and Austria that have the monist system, where the right is one package, the economic and moral rights are together. Obviously you can't transfer or waive the whole package, typically. But in countries that separate, like the Berne Convention does, the economic rights and moral rights. Then you have a little more leeway as to how you do that. There's a lot of differences also, so it may be the last point to mention on enforceability after the death of the author. So some countries -- so the Berne Convention says, if you join Berne and you don't have a moral right. You can stop at the death of the author, which was introduced for common law countries. But even if you don't and you make them last as long as the economic rights. There are conditions in some countries. And it really depends, if you look at it as a privacy or interest or personality right, I guess, or a property interest. And I think Mark was completely on the point there -- and I said this was my last point, but the last thing is this. Perpetual moral rights scares people. Well, if you look at the actual cases. First of all, there are very few countries that have perpetual moral rights, but let's say France always come up. Most of the cases fall in the sort of title -- the heirs of Bach or Victor Hugo. They just can't prove that they have the right, so the court will very often dismiss the case. Not because there's no infringement. They don't get there. They just say well, we're not sure you're the person to exercise the right. So that's another scarecrow that I think can remain in the field. >> And I was actually going to follow up on that because that was -- it's not really a question we were going to discuss when we were talking about this panel, but you alluded to litigation about moral rights. And I guess one of the questions I would have is those countries that do have stronger moral rights, such as France or other countries. Is there a lot of litigation over issues of attribution or integrity? And what type of litigation do you see? What are people arguing when they're trying to actually raise their moral rights in court? >> Well, there is some litigation. It's a small percentage. I don't have the number but a small percentage, obviously of all copyright litigation. If you open a -- let's say a French copyright textbook, you won't find that many pages on infringement of moral rights. Very often it's a licensee making unauthorized changes. Or a licensee producing a version of the work without the author's name. Or the author's name is so small that you can't find it. Those are the kind of cases that you see, and they're easy for a court because those are pretty clear-cut violations. The one case that, of course, many American law students learn about is the John Huston case, where John Huston's heirs -- his wife, in fact -- was in court in France and said you cannot show the colorized version of my husband's movie because he specifically wanted it in black and white. And the court agreed. And so the colorized version, as I understand it, was not actually shown in France. But as you can see, those are not that common. Most publishers have no interest in publishing a book without the author's name on it. Oh, this is a secret. You know, Stephen King novel but no one should know it's Stephen King. There's really no interest. It's exactly the opposite. You want to know who wrote the book. If you're the consumer, you want to know who wrote the book. The publisher wants you to know. So there's not that misalignment usually between the licensee and an author. >> And just one follow-up. And anyone from the panel can join as well. But you kind of gave the analogy of moral rights being the Zika virus earlier and that the United States should stay away from it. I guess following up on your point that there isn't a lot of litigation over moral rights in some of those countries that have stronger or more specific laws. Does that suggest if the United States were to adopt something along the lines of what France has or what other countries have, in terms of more specific moral rights provisions. Would you expect to similarly not have a significant amount of additional litigation on those issues? >> Well, you know the litigation virus is not the Zika virus and maybe there's -- >> There's another one. >> That one here. But so I think there might be some test cases that need to be brought to have a little bit more clarity. But frankly, many other countries have had moral rights for many, many years. And again, you don't see it all that often because that misalignment between the author and the person exploiting the work is rarely obvious or present, in fact. So, no I do not expect that -- actually attribution, as I said, if you're in this context that requires say, not to plagiarize, your, you know, attribution would come naturally. Most people would find attribution is fairly compatible with their practice. And integrity -- you know the Berne Convention says honor a reputation. The real question's how do you define that? As I recall the Berne debates, someone suggested changing that for spiritual interests or something. What it shows you that countries were not quite sure what they were trying to get at. But it's a fairly fuzzy concept, so I think there's plenty of room for the US to define the cases as say, Canada does. You really have to have a very objective case. It's not oh, my feelings are hurt. It's not that. You need a lot more than that to make the case. So that would be a matter of how the legislation, I suppose, is changed to fully implement integrity. >> And then I think maybe going back to June and going down the line. And then I have a question for Eric. But we mentioned that Article 6bis of the Berne Convention obligates member countries to recognize essentially attribution and integrity. But you mentioned that there were other rights that are considered moral rights. Why weren't those other rights also included in the Berne Convention? Any ideas as to kind of why they didn't think that they rose to the level of the type of protection that it's now obligated for the rights of attribution and integrity? June or -- >> Well, I'll just start by saying I don't think the right of withdrawal was ever as recognized as widely, so that's probably why that isn't in there. And the same might be true of divulgation, although it also is duplicated in part by economic rights. So I think that it wasn't seen as necessary as, you know, the other two. So in terms of -- you know what happened was a certain number of countries had similarities enough in their law, and those laws were on the books. And these were the two that were really the, you know, the ones that prompted people to move forward. And that's why they became part of the Berne Convention back then. >> Anyone else want to any -- >> No. >> So we've talked a lot about, I guess, the European basis in Europe, and now I want to turn a little bit more focus to the United States. And ask Eric how has the US considered moral rights? ^M00:39:55 >> Well, thank you. And Sandra injected a little bit of personal story into this morning's discussion. And I probably should do the same because I arrived at the Copyright Office on April 1st 1988. Just in time to work on Berne Implementation Act for my boss, for Ralph Oman who's here to assign me my first assignment. Which was to do the first and only study on moral rights in the United States and which we delivered in March of 1989. And then to work on the Visual Artist Rights Act. So part of my preparation here -- I really don't think I'd given a lot of thought to moral rights for some period of time. But that flurry of activity, in the late '80s and early '90s, was something that I certainly had a front row seat, along with others in the room, looking at Marybeth and others here. I schemed this as sort of seven steps, I suppose. And I'll be brief because we, you know, are limited in time. The first was what I'll call the prequel. Considering US accession to Berne, which the '76 Act was sort of a partial step in the direction with copyright term and so forth. But in 1985, the US State Department convened a group of experts, the Ad Hoc Working Group -- and by the way, I've prepared a little chronological order of the history here. Especially for students and others who may be unfamiliar with it. And Irwin Karp and a group of experts studied four basic subject areas on US compatibility with Berne, including moral rights. The final report was issued in April of 1986 and reprinted in Senate hearings. And I've given you the citations. And the best way to summarize it is to read the conclusion of chapter six of moral rights and the final Ad Hoc Working Group. And remember, their task was to "identify those basic provisions of US law relevant to US adherence to the Berne Convention and to analyze their compatibility with Berne" closed quotes. Here's what they concluded. "Given the substantial protection now available for the real equivalent of moral rights under statutory and common law in the United States, the lack of uniformity and protection of other Berne nations, the absence of moral rights provisions in some of their copyright laws, and the reservation of control over remedies to each Berne country, the protection of moral rights in the United States is compatible with the Berne Convention." So that was the prequel in 1986. Then came US accession for real of the Berne Convention for the remaining couple of years. US accedes on March 1st 1989. A lot of House and Senate hearings on the subject. Round table discussions. Irwin Karp and others at Columbia Law School. And I've given you the citations for that of experts talking about moral rights, explicit moral rights under the US. Is it necessary for the US to amend its law to accede to the Berne Convention? The first -- there was by the way a bill, HR2400, which would have granted explicit moral rights to film directors and screenwriters. There was, in the first iteration of the Berne Implementation Act, explicit moral rights taken for the most part from the language of Article 6bis, the right of attribution. And Barbara Ringer always scolded me never, ever call it the right of paternity. And the right of integrity. And that was ultimately stripped out of the Berne Implementation Act. And this was the legislation that was necessary for the US to accede to Berne. And what the US did then and often still does with most treaties is first we amend our law. Then we accede to the treaty. So this was the implementation act, which was going just ahead of our accession to the treaty. The House and Senate ultimately concluded after hearings and consultations with US agencies, trips to Geneva with WIPO, of foreign governments and experts, that explicit new moral rights legislation was not necessary for Berne implementation. And I've given you the language from the House report on Berne implementation and the Senate reports from 1988. And reading the House report, based on a comparison of its laws with those of Berne member countries and on current status of federal and state protections of the rights of paternity and integrity -- they clearly had not spoken to Barbara -- the committee finds that current United States law meets the requirements of Article 6bis. And the Senate report. More or less the same thing but laying out the common law principles. Such as liable defamation, misrepresentation and unfair competition. Which have been applied by courts to address authors' invocation of the right to claim authorship with the right to object to distortion, concluding the same. That no new rights were necessary -- and this was important -- citing Dr Arpad Bogsch, who was then the Director General of the WIPO. That the United States may become a member of the Berne Convention without making any changes to US law for the purposes of Article 6bis. And truth be told, Dr Bogsch wanted the US so badly to join the Berne Convention, he would have pretty much said anything for the US to join. Remember the US was the 89th member -- I believe that's right -- of Berne. And there are now what, 160 countries. So it was really important to the WIPO and for the importance and still preeminence of Berne for the US to join the Convention. The House reports and the legislation also made clear that Berne was not self-executing. So that there couldn't be lawsuits claiming that notwithstanding Title 17 or other federal and state laws that the US was not in compliance with Berne. Or that there would be redress in federal or state courts based on the actual language of Article 6bis. So sort of sealing that off, the House and Senate language. The ultimate Berne Implementation Act made very clear that Berne was not self-executing. But the mid-1980s -- you know a lot of changes going on. And the nature in technology for dissemination of works, especially motion pictures and television programs. A lot of alterations being made for post-theatrical. Especially for students in the room. Think about a time when -- really films until that time are only shown in theaters. And now you have the explosion of videos, cassettes and home-viewing. And suddenly post-theatrical alteration is a huge issue. And since where the motion picture industry is mostly living in a work for hire regime, the creative artists are saying but we've given up our rights for these post-theatrical alterations. And attribution. Yes, there are guild agreements. Yes, there are personal contracts. But there's also alterations going on. There was the colorization of black and white movies, which begins in 1986. There was time compression, which is the fitted into broadcast time slots. You may not notice but sometimes films are actually sped up and compressed to fit into the broadcast time. There was panning and scanning to make the aspect ratio of what's a theatrical screen fit onto a television screen and so forth. A lot of high-profile hearings. Steven Spielberg. George Lucas. Sydney Pollack. Woody Allen. Dozens of directors and writers were all at hearings. If you ever -- I know that Ralph testified at many hearings. And usually we would watch the entire room empty out as all of creative artists left the room and the House and Senate members, while the copyright office went into to testify moral rights right behind them. It was a huge high-profile issue at the time. And the question was what to do about it? So Congress asked for a study. One year to study technological alterations to motion pictures. It was Mr Castameyer and Mr Moorhead, the House and Senate Chair and Ranking Minority Member. Which Ralph and Bill Patry and I co-authored and delivered March of 1989. The timing's interesting. The US has acceded to the Berne Convention on March 1st 1989. We'd already acceded by the time we turned in the study. Take a look, if you're interested. Chapter five of the study is the summation of moral rights legislation. And then just you know a couple of other points in the history. So the spinoff on the moral rights issue, in the motion picture area, was the National Film Preservation Act of 1988. Notwithstanding that moral rights had been taken out of Berne Implementation Act, directors and writers and others went to an Appropriation Subcommittee Chair Sid Yates and got an amendment to the law to create a National Film Preservation Board here in the Library of Congress. That films would be selected to a registry. And those films on that registry couldn't be or would have to have a pejorative label that they were altered -- if they were materially altered -- without the permission of the creative artists, the directors, cinematographers, and screenwriters. ^M00:50:11 And so that was sort of a brief moment of creation for that industry of moral rights. But the legislation had a three-year sunset and expired in 1991. It was reauthorized to focus on film preservation issues, which still exist to this day. It's been reauthorized, and I've been a member of that board since 1989. But then Congress not wanting necessarily to leave moral rights behind in the US decided -- and those steadfast in the position -- that no new moral rights were required for Berne -- adopted the Visual Artist Rights Act as sort of a subcategory of PG and S works, the pictorial, graphic and sculptural works -- foresaw a subclass of that and creating a right of both attribution and integrity. And because there was a particular interest on Senator Kennedy's staff for a right of destruction, also a right of destruction. So after all of that and after Berne implementation where the industries -- and it's not just motion picture, magazine, book publishers and others and to the questions about litigation. I think a lot of it was the unknowns in the industries. Where industries were just, you know, you have these very labor-intensive industries. And the fear of -- with deadlines and the publishing industry -- what's going to happen if these issues arise from one of the many creators, photographers or others? What will it do to our publication deadlines and others? And it was just that. It was a question mark and an unknown. But the feeling for Berne implementation was we're fine because of all the reasons given. But you know the courts giveth and the courts taketh away. And in 2003 -- and I'm sure the next panel will talk about it -- you have the Dastar case. Which was, you know, at the intersection of copyright and trademark. Here you have a case where the term of copyright has expired. And the Supreme Court in Dastar rules that once copyright has expired, works may be reproduced and disseminated, even without attribution. The court reasoned that federal and state trademark laws requiring a designation of quote unquote "origin" pertain only to the origin of the physical copy, not to the origin of the intangible subject matter of the copyright. So you know whatever we were talking about in that panoply of other rights and trademark law Lanham Act and everything, certainly were significantly scaled back by that case. And then I suppose the final word in all of this was TRIPS. Yes. The US felt -- the US government felt somewhat confident in its position on Article 6bis of Berne, but -- >> Yeah, and I was going to ask -- and that was going to be my question. We talked about the fact that we have these obligations in separate panels. But we didn't talk about the fact that the TRIPS Agreement, for whatever reason, actually does obligate member countries to recognize Articles 1 through 21 of the Berne Convention. But for some reason does not obligate member of states to actually recognize Article 6bis, which is a question. >> Yeah. Well, so then, in the timeline of it all, Berne -- excuse me TRIPS. It more or less completed in December of 1991, for all intents and purposes. It doesn't go into force until January of '95 and TRIPS in January of '96, although my friend Jane and I disagreed about the implementation date, I remember. But the US government's position and others is TRIPS is a trade agreement. These others are copyright conventions and agreements. And in a trade agreement involving trade in goods, only economic rights should prevail. And though -- you know TRIPS, like all trade agreements was heavily negotiated, US, EU, Japan, Australia, and many other countries. The US is a newly-minted member of Berne by this point. This is now in the early 1990, and the feeling is that there is no dispute settlement in the Berne Convention. But there clearly is dispute settlement in the TRIPS agreement, which means that across the goods and services of TRIPS -- and you've got you know one of the TRIPS experts in the world, Daniel here, so you know you should be answering this, not I -- but the insurance policy is so you don't have dispute settlement on moral rights. That is if the US is not in compliance in a trade agreement. And so you limit the TRIPS Agreement just to the economic rights. Read Article 9 one of TRIPS. And yes, members -- the US wants to, and so do many countries, import, by reference, all of articles 1 through 21 into the Berne Convention. But members shall not have rights or obligations under the agreement in respect of the rights conferred under Article 6bis of that convention or of the rights derived therefrom. That's Article 9 one of the TRIPS Agreement. So it strips out -- countries can have moral rights, and many countries do. And the US, you know, by this time does in section 104A with the -- excuse me, 106A, with the Visual Artist Rights Act. And we do with a panoply of other rights such as they exist. And certainly in the '90s before Dastar, more vigorous, let's call it, but at least not subject to trade dispute is the moral rights provisions of Berne. So that's sort of the nutshell history of US until, as Daniel and June mentioned, you know you have the digital treaties in 1996 and then the Beijing Treaty, which has not yet been implemented in the US. >> Thanks Eric. And I do want to save some time to turn it over to the audience to see if we have any audience questions. But Daniel, did you have any -- did you want to add anything on the TRIPS point [inaudible]? >> Well, you -- no. You got the official version [laughter]. >> Did you want to add an unofficial version, I guess? I'm scared to ask, but -- >> Yes. It may be true the US government was confident that US was complying with 6bis. But maybe not all that confident, I suppose. The other argument -- I mean to say that these are not trade-related rights when you can pull movies out of theaters. You know, as they did in that one case in France, of course, was the argument used by the Europeans to say see, it's very related and then you know. So it was kind of a discussion that I think in the end no one was going to die in the trenches for 6bis. And the French government got an earful from many people once they showed the draft. But TRIPS was not negotiated on behalf of Europe by a French negotiator but by a Danish negotiator. And who knows. Maybe that made a difference. One thing, though, is it's a very small footnote, but Eric said there's no dispute settlement in Berne? There is, but no one's ever used it because it's the International Court of Justice in Article 33. And the reason no one's -- well first of all, the US would have to accede to jurisdiction in the case. But also no one knows what it would do with an IP case. So no one's ever tried, but I just thought I'd -- >> Yeah. >> I'd footnote that. >> No. there -- the US would never concede -- >> Yes. >> To the jurisdiction. >> That's right. And the Asphalt Jungle case is interesting because that happens in '86, I believe. The Huston estate. And here you have an agreement signed, a work-for-hire language in California. The choice law on the agreement is California law. What the French television station was going to do was show the -- as only the French could do -- show the film first in black and white. Then in color. Then have a discussion of the merits or lack thereof of the color version and the black and white version. And the injunction was to prevent the screening of the colorized version by the screenwriter Ben Maddox and the estate of Huston. Notwithstanding that it was work-for-hire, and they'd signed a choice of law in California. And the French court, as a matter of public order, rules that the moral rights sort of override all of the other provisions. I think that added to the sense whether or not streaming a film, you know, in color or something was that big of an issue for the motion picture producers. It sort of added to the uncertainty about what might happen for works that have been created. And in this case, created under work-for-hire agreement and the choice of law in a contract that said it's clearly a Californian law. That raised at least the level of fear in some of the creative industries. Not all, but in some. >> And June, did you have a extra point too? >> Yeah. I just wanted to go back to the point about concern about litigation, if the US implemented moral rights. Now among the chief opponents of putting moral rights in the statute. When the Berne Convention was passed were magazine publishers, newspapers and the motion picture people. ^M01:00:03 And during the course of the Berne hearings, a number of international experts said well, you know, we have magazines, and we have newspapers, and we have motion pictures in our country. And this has not been a problem even though we have moral rights. But the response to that was yes, but the United States is a much more litigious country. And I think that's true. And I think we have to be realistic about that, if we're going to go ahead at some point with moral rights. I mean this is a country where you can buy a cup of coffee and put it between your legs on the car seat and then sue because you get burned. And sue successfully because you can get burned. And I think that that does reflect something about our society. So if we were to go ahead and create moral rights at some point broad, in other words. I think it's important that they be very specific and circumscribed. As I think can be said reasonably of VARA. And you know that's just an important thing to keep in mind. That that particular concern will not just have gone away by virtue of the time that's past since the US joined the Berne Convention. >> Okay. Can I -- >> Sure. Sure. >> So actually, I agreed with what June said. But so American film directors and others are, in fact, typically recognized as authors in other countries. Even if there's work-for-hire here. In other words, a French court typically will not recognize work-for-hire as creating authorship in the movie studio. It will recognize first donorship, which mean the director still has these rights. And some European collectives actually that collect money for film that is supposed to paid to authors have had to make some interesting arrangements to be able to send that money to US -- ^M01:01:48 ^M01:01:51 I don't even know what to call them. Beneficiaries. So it's -- but the point here is that you don't see -- at least to my knowledge, you don't see a lot of US film director going around the world saying yeah, I can sue for moral rights infringement. You don't see, you know, a heck of a lot of that. So there might be more here, but -- and I don't disagree with that. Actually I think I said something along the same lines -- >> I will just say that with some people and directors are one of them. There's another thing operating, which is you'll never work in this town again, so you know, it's not just about legally what you have a right to do. >> I agree. >> And attribution is so well covered by guild agreements and all the other obligations that for anybody who stays to the end of a movie credits is not an issue. The motion picture industry, everybody is credited and the caterers included but -- >> That's true. >> But it's -- >> So it should be easy then to establish an explicit provision in the United States law for attribution. Isn't that what the panel has concluded? ^M01:02:52 [ Laughter ] ^M01:02:55 I probably won't ask for an answer for that now unless we have some additional time. I did want to leave open at least five or six minutes for audience questions. And then, if you have any closing remarks we can do that, if we don't have a significant amount of audience questions. But I think we have one there. >> Thanks very much. Steve Tepp, Sentinel Worldwide, on behalf of the Artists Rights Society. June, thank you very much for mentioning the droit de suite, the resale royalty. It seems to me that it certainly deserves at least honorable mention at this conference. And of course for those not familiar with it, it's the right of authors to receive modest commission from the sale of their works and resale of their works. It's particularly critical, I think, and I'm asking for the panel's reaction to these observations. To artists whose works are valued for, of course, their artistic merit but for their relative scarcity as opposed to their ubiquity. Which is what the Copyright Act, the latter is what the Copyright Act most often is directed to facilitate. And it seems to me that there's a trend towards the resale royalty. The EU has adopted it. Australia has adopted it in relatively recent years, and implementation has gone fairly smoothly. It's now on topic recurring on the Standing Committee of Copyright and Related Rights at WIPO. We have legislation pending in both Houses of the US Congress. And of course, the copyright office has issued a report, which I think I'll end this with, this poignant statement. Without a resale royalty, many if not most visual artists will not realize a benefit proportional to the success of their work. So I just offer that up for comment-observation on the importance of resale royalty. Thank you. >> Anyone want to briefly discuss -- >> Sure. >> Resale royalty? ^M01:04:44 [ Inaudible Response ] ^M01:04:50 >> Works of art certainly have a special status, right? It's like, in music, you don't ever want to get to the master. Or in movies, you know, the original copy. So that works of art, you're absolutely right on this feature. That the original -- you can make a copy, but it's never the painting on the wall, right? But that being said, again, that's a right that scares some people. And it's implemented so, you know, many different ways. The typical case of course that you hear about is the Van Gogh. You know, the artist who sells the painting for five bucks, and then somebody sells it later for you know a lot more. But in reality, you have typically in works of art, you have incremental value changes. And so some countries implement this droit de suite, like basically each time the work sells, you pay a percentage of the whole price. And some countries have only the difference between the sale price and the previous sale price. There was a long discussion in the UK about this. So if ever this was to move here, I would certainly recommend that the Copyright Office pay very close attention to the debates in the UK about droit de suite. I think they covered it right, left, up, down, every other way. >> Yeah. And I would just add that our report did mention the UK -- >> Of course. >> And the fact that, in the UK, they were just going through like you know implementation. They had initially just implemented it, I think, for the life of the author. And then they, at the time, were about to extend it to heirs as well. And so one of our recommendations was to closely follow, kind of once it was fully implemented, if it actually affected the art market in a negative way. >> You know, it just seems like it's something that could and should be done. I should caveat it by saying everything and nothing I've said is very controversial this morning. But speaking on my own behalf and not for the several clients I'm noticing in the room [laughter]. But no, I think that personally, yeah, there should be a resale royalty right when you think about works of art. And the, you know, the one-off sales. And the lack of, you know, whether it's as a percentage or as a percentage between the differential and the amount that you're talking about. As a way to compensate those that created the work, not those that are good at selling and reselling it. With all the respect to galleries and other places that you know there should be some compensation. >> I think we're right at the end. I guess we have time for one last question, and then we're going to turn it over to the next panel. >> Hi. I'm Carrie Devorah, Center for Copyright and Integrity and probably the odd voice in a room of lawyers to say I don't believe in resale rights. I think it comes down to contracts. You have the right to say I'm going to drop the contract and if you sell it. I don't think the government has the right to legislate. Other points were made up there they really come down to contracts. My background is licensing. I entered that world over 40 years ago, and I retired a bunch of years back because of licensing. You need to understand there's a global access out there, so it comes down to artists being taught about a contract and the value of time, territory that dovetails into your talent. So I do not believe in resale rights. I think if someone's going to invest in you, they're entitled to make that money. Same way as a casino entitled to make money on your win because they provided the machine. >> Thank you. >> You don't know what the value of the work is at first. I mean that's the reason for renewal. That's the reason for copyright termination. I mean it's you know that the author is just in the unknown position at that time of first sale because she doesn't know what her work is worth. She knows what it's worth at that moment but she surely doesn't for the life of the copyrights. >> And I would hate to cut us off. I know that we could actually get into a long conversation about resale royalty, but the focus of this panel and of the day is a more specifically on moral rights. So I want to thank all of the panelists here who've given us a very good overview of moral rights and the basis for our later discussions. Thank you very much [applause]. >> This has been a presentation of the Library of Congress. Visit us at loc.gov. ^E01:09:02