A Proposal for the Wto to Enhance Moral Rights Protections
| Citation | Vol. 11 No. 2 |
| Publication year | 2008 |
David Phillips is an artist recognized throughout the United States and a creator of sculptures generally consisting of stone and bronze creations, which are incorporated into public spaces and parks.[1] In 1999, Mr. Phillips was commissioned by Pembroke Real Estate, Inc. to create sculptures for Eastport Park in Massachusetts, located in the South Boston Waterfront District, near the Boston Harbor.[2] In addition to Mr. Phillips, Susume Shingu, a Japanese sculptor, Judy McKie and Craig Halvorson contributed works to the creation of Eastport Park.[3] The combined artistic vision for Eastport consisted of "approximately twenty seven sculptures ...comprised of fifteen abstract bronze and granite pieces and twelve realistic bronze sculptures of various aquatic creatures, including frogs, crabs and shrimp."[4]
Shortly after Eastport was completed in 2001, Pembroke was dissatisfied with the layout and design of the park and had become frustrated with maintenance problems caused by the stone settings.[5] Pembroke elected to alter the layout and design of the park, which included the removal of much of Phillips original work in order for the park to have more functional walkways and increased amounts of shade located throughout Eastport.[6] To implement the changes, Pembroke selected a British landscape artist, Elizabeth Banks, to redesign the park.[7] Ms. Banks proposed the removal and relocation of several of the sculptures from Mr. Phillips original design, and while the final plan selected for Eastport retained many of the sculptures, it "relocate[d] some of the granite paving and change[d] several walkways and finished granite objects."[8]
Copyright law in the United States protects the economic rights of an artist when the work consists of "original works of authorship fixed in any tangible medium of expression,"[9] including "pictorial, graphic and sculptural works[.]"[10] However, Mr. Phillips was concerned about his artistic vision and his non-economic rights and sought injunctive relief under the Visual Artists Rights Act of 1990 (VARA)[11] and the Massachusetts Art Preservation Act (MAPA).[12] The United States Court of Appeals for the First Circuit did not embrace Phillips' argument and held that while there is great value to art, as it "unmistakably enriches our culture and the beauty of our public spaces...the plain language of VARA does not protect site specific art."[13] While protections for non-economic rights existed through VARA and MAPA, for Mr. Phillips the protections proved inadequate to prevent the destruction of his artistic vision and the loss of the non-economic rights of the artists who worked on the Eastport project.
To increase the protections granted to individual artists through the concept of moral rights, this paper will explore the question of how to best improve the moral rights offered to an artist in an increasingly global marketplace. Specifically, this paper will focus on whether the World Trade Organization (WTO) may be the most appropriate organization to increase the moral rights protections for an artist involved in international transactions and if so, which model protections should the WTO adopt. To this extent Part II will explore the notion of moral rights including their purpose and how they have developed through the course of history. Part III, will examine the protections afforded in France and the United States and the positives and negatives incorporated by the various approaches. Part IV will examine current international treaties, which affect intellectual property rights and how moral rights are addressed in each agreement. Lastly, Part V will address the history and development of the WTO, the treaty obligations and how the obligations affect not only moral rights, but intellectual property rights in general, and how the WTO may be the most efficient mechanism to improve moral rights protections on an international scale.
An artist or author who has invested time and energy to create a work of art may have expectations for how the work will be examined, cherished, and distributed in the future. The artist may be granted economic protection for their work through copyright law; however, the creator may also wish to protect those rights which are not economic in nature.[16] While the concept of protecting the non-economic rights of an artist has an extensive history, it was not until 1878 when French Judge Andre Morillot coined the term in an opinion when the protections became known as "moral rights."[17] Moral rights, also referred to as a moral interest or droit moral,[18] protect the work of the artist, which may be viewed as "an emanation or manifestation of his personality, as his `spiritual child."[19] Moral rights protect the artist, the public, and future generations so all may have "the opportunity to see the work as the artist intended it, undistorted and `unimproved' by the unilateral actions of others."[20]
Moral rights originated on continental Europe in ancient Rome; and although not as extensive as the current protections,[21] originated from a public stigma for those who committed plagiarism.[22] The protections originated in order to protect an author against plagiarism, prevent "widespread literary theft," and protect authors from "interference with their literary prestige."[23] The Romans defined plagiarism as "the theft of an author's right to be recognized as the creator of his own work."[24] The Roman prohibition against plagiarism carried over into the early Christian church lasting until the end of emperor Romulus Augustus's reign.[25]
During the Middle Ages, shortly after the reign of Romulus, an artist did not work as an individual, but worked anonymously as a member of a trade guild, and carefully followed the instructions bestowed by the chief patron of the arts, the Roman Catholic Church.[26] During this time the church granted very little attribution to an individual artist for the created work.[27] The individual artist continued to receive protections against plagiarism, but this may have occurred to protect the public rather than the artist.[28] As the Middle Ages progressed, the wealthy increasingly became the patron of the arts, a shift which allowed the artists to grow their reputation and to gain recognition "as the creator of the work."[29] The first artist to capitalize on his reputation and separate his work from the patron's request was Michelangelo Buonarotti[30] who asserted and gained the right of attribution,[31] the right of disclosure,[32] and the right to integrity in his works.[33]
From the time of Michelangelo moral rights continued to develop, but it was not until the early nineteenth century in France when an individual began to enjoy greater protections in the codification and common law protections of moral rights.[34] The initial French laws emphasized criminal penalties for those engaged in plagiarism,[35] and the French Courts continued to build upon the idea that an artist retains the right to prevent the deformation or destruction of their work.[36] In 1845, a French appellate court reversed the criminal sanctions granted to those who mutilated a statute, but still suggested that a civil remedy would be appropriate.[37] Additional rights were granted in the ensuring years when in 1874 the French courts first recognized the right to integrity[38] and in 1898, in the case of
Today moral rights protections, while variable across jurisdictions, may consist of up to four elements, each of which may protect the artist even when the artist no longer possesses the work.[40] Moral rights protections may include; the right of disclosure, which is the ability to determine if and when a work will be disseminated to the public; the right of attribution, which is the ability of an artist to take credit for their work; the right of integrity, which disallows modification or mutilation without the consent of the artist; and the right of retraction, which is the ability to prevent further disbursement of the work or conversely to make changes after publication has occurred.[41]
France has played a vital role in the development of moral rights since the mid nineteenth century with protections developed in the common law system, which eventually became codified.[42] As...
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