[pp.int.general] copyright vs. "droit dáuteur"
r.bakels at planet.nl
Tue Jan 6 09:32:21 CET 2009
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 ...
> .... 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
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).
(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
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