[pp.int.general] copyright vs. "droit dáuteur"

[Reinier Bakels]

First: this is *not* a continuation of the past flame war.

> Reinier Bakels wrote:
> > It is pretty common to translate "droit d'auteur" by copyright, and
> You may talk about the /c word/, the /intellectual pro...whatever/ and all 
> the concepts you wish to use; simply, I reject to use myself that language 
> and recommend them not being used, as I consider using them as losing at 
> the /language arena/.
>
> About WTO, check the official Spanish version of TR/IP/S, and if you find 
> at least once copyright I will reward you ...
>
> http://www.wto.org/spanish/docs_s/legal_s/27-trips_01_s.htm
>
> .... but you won't, because where in English is written the /c word/, in 
> Spanish is written /derechos de autor/ (i.e., author's rights or, as you 
> use to say, /droit d'auteur/). So, it doesn't matter whether Spain is

You are right! The French version also refers to "droit d'auteur" (my French 
is better than my Spanish).

Now the question is: what is it really - because we talk about translations 
of the same treaty. And "copyright" and "droit dáuteur" are essentially 
different things. The answer is found in art. 9(1) TRIPS, referring to art. 
6bis of the Berne convention - which is the provision about moral rights: 
TRIPS does not oblige member states to recognise moral rights. The effect is 
that the rights referred to in TRIPS resemble more the American copyright 
than the European droit d'auteur. Incidentally, the Berne convention - which 
is affirmed by TRIPS - simply refers to "the Protection of Literary and 
Artistic Works".

The difference is not just a matter of terminology. It is an essential 
difference in philosophy - which is relevant as well from a political 
perspective. Copyright is an American concept, based on the phrase in the US 
Constitution "promote the progress of science and useful arts, by securing 
for limited times to authors and inventors the exclusive right to their 
respective writings and discoveries;". The interests of society are central 
here, so it is logical to refer to the *copy* as the object. The continental 
European "droit d'auteur" on the contrary starts from the perspective of the 
author, who - in some percetions - owes a "natural" right to the fruits of 
his mind. Therefore he may decide on the publication, and on changes to the 
work: he has moral rights. In present statutes, the role of moral rights 
varies. In NL, there is a pretty limited regulation - but it still was a 
major issue whether the heirs of an architect could prevent the demolition 
of a building designed by the architect (th supreme court eventually 
decided: yes). But in the German "Urheberrechtsgesetz", the moral rights are 
first and the exploitation rights second.

What deserves our political sympathy? I believe that the "natural rights" 
conception is dangerous. Fortunately, it is controversial among lawyers. The 
natural rights concept does not allow further questions to be asked - it is 
just "natural". But I do feel some sympathy for the moral rights. Not 
everybody should be allowed to alter a carefully crafted piece of art. Part 
of the moral right is also the authority to decide on (first and further) 
publication at all. This right risks to get lost with the increasingly 
common collective rights management schemes, including levies - thaty 
certainly deserve pirate's opposition. And moral rights loose their 
relevance if the rights owner is not the actual author, but a publisher. 
Then there is no longer a "personality right" deserving to be protected.

To some extent, the American copyright concept is easier. It allows 
questions to be asked like: will society benefit and get more artistic works 
if the term is increased? (which is not the case in a genuine droit d'auteur 
perception - as it is based on [a perception of] the rights of the author). 
My grandfather 
(http://www.artnet.com/artist/677548/reinier-sybrand-bakels.html) would not 
have produced more paintings if he had known that (actually after his 
death!) his grandchildren would benefit until 2026 from all revenue (which 
is actually zero - my granbdfather is not very famous). The same applies for 
the present debate on the proposed extension of neighbouring rights from 
50->95 years. This proposal is defended by European-style, moral arguments. 
No one would argue that Cliff Richard (in hindsight?!) would have produced 
more records if this rights would be extended now.

To some extent, the American copyright philosophy allows an easier attack on 
the virtues to the present law. Moral aspect are intangible, and highly 
subjective. Utilitarian aspects are susceptible for pretty concrete 
assessement.

reinier
 Would