Analogies in IP: Moral Rights.

• Author: Simon, David A.

1. INTRODUCTION II. ANALOGICAL REASONING A. An Overview of Analogical Reasoning B. Reasoning by Analogy in Law C. Reasoning by Analogy in Science D. The Value and Structure of Moral Rights Analogies III. ANALOGIES TO EXPLAIN THE RELATION BETWEEN THE AUTHOR AND HER WORK A. The Parent-Child Analogy 1. [P.sub.1p]--The special parent-child relationship 2. [P.sub.2p]--Similarity of parent-child to author-work 3. [C.sub.p]--Legal protection for the special author-work relationship B. Creator-Creature (g-c) Analogy 1. [P.sub.1g]--The special God-human relationship 2. [P.sub.2g]--Similarity of God-human to author-work 3. [C.sub.g]--Legal protections for the special author-work relationship C. Master-Slave Analogy D. The Lord- Vassal-Fief Analogy IV. MOVING PAST ANALOGIES 21 YALE J.L & TECH. 337 (2019)

1. INTRODUCTION

   This Article critically examines the analogies scholars use to explain the special relation between the author and her work that copyright law protects under the doctrine of moral rights. The goal of this Article is to determine "when to drop the analogy and get on with developing" the content of the relation between the author and the work. (2) Upon examination, that moment approaches rather quickly: none of these analogies provide any helpful framework for understanding the purported relation. At best, these analogies are first attempts at describing the relation between the author and her work. At worst, they are misleading rhetorical devices used to gain support for moral rights. So this Article assumes that analogies are valuable as starting points for thinking about the relation between the author and her work, rather than as a means of explaining the nature of the relation. Even when viewed this way, however, the analogies raise more questions than they purport to answer. Because the analogies discussed do not explain the author-work relation, scholars must look elsewhere for arguments to support moral rights.

   Copyright law provides authors with economic rights: rights to exploit the work for monetary gain. Moral rights, by contrast, are considered to be "noneconomic" rights. To varying degrees, they enable the author to control how and when her work is divulged (right of divulgation or disclosure), attributed (right of attribution), altered (right of integrity), and withdrawn from public view (right of withdrawal). The right of divulgation provides the author with the sole authority to decide when and where to expose her work to the public for the first time. (3) The right of attribution, on the other hand, requires affixing the correct author's name to a work. It may also encompass three subsidiary rights: the author's rights (i) to require her name appears on her work; (ii) to prevent another's name from appearing on her work; and, sometimes, (iii) to prevent her name from appearing on another's work. (4) The right of integrity enables the author "to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the [author's] work, which would be prejudicial to his honor or reputation." (5) Finally, the right of withdrawal allows the author to rescind a publication contract so long as she indemnifies the publisher. (6) In some cases, authors also are provided with the droit de suite, which entitles the author to royalties from any resale of their work. Typically, this applies to fine art, such as paintings. (7)

   Moral rights are codified or recognized (differently) in 165 countries. The current codification and prevalence of these legal rights is, in large part, a function of Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works ("Berne"), the most widely acceded-to copyright treaty covering literary and artistic works. For performers, a separate treaty--the World Intellectual Property Organization ("WIPO") Performances and Phonograms Treaty ("WPPT")--provides slightly different moral rights protections. (8)

   Berne mandates that its signatories, or "member states," implement two moral rights: the rights of attribution and integrity. Although Berne (9) and the WPPT (10) direct all member countries to protect the rights of attribution and integrity for authors and performers, they do not specify how countries ought to do so. And because member states have discretion to implement these provisions, moral rights differ by country--both in form and content. In other words, different countries have different versions of the rights of attribution and integrity.

   Additionally, some countries choose to provide protection over and above what Berne mandates. Frequently this includes the other two "core" rights mentioned above--the right of divulgation and the right of withdrawal--which are standard in countries that traditionally have been thought the "home" of moral rights: France, Germany, and Italy. Protection also can include further rights, such as the author's the right to prevent excessive criticism, to revise a work and to use a title of a copyrighted work (if it is likely to cause confusion)--even when the copyright of the work itself has lapsed.

   Despite the different legal protections offered by various countries, moral rights are widespread. The belief that the author has a special relation to her work--a "special bond" (11)--underwrites their existence. Yet the underlying rationale for such rights is not always clear. Various theories have been offered. (12) In explaining the special relation between the author and her work, analogies are often offered as arguments. These analogies are supposed to provide support for the "specialness" of the relation or the "bond" between the author and her work.

   This Article examines whether these analogies actually perform that function. Comparing the author to parent, master, lord, God, and the work to child, slave, vassal, and creature, each analogy highlights a particular aspect of the relation between the author and her work that scholars find compelling. More generally, they draw on our intuitions about relations between people, and attempt to show how those intuitions should apply to the relation between author and work. Suppose, for example, one intuits that an author stands in the same relation to her work as a parent to her child. Presumably, some aspect of the parent-child relation can explain in a meaningful way the author-work relation. The aspiration, then, is that these analogies may illuminate the substance or contours of the author-work relation.

   Unfortunately, none of these analogies are particularly illuminating. As rhetorical devices, they are somewhat effective. They capitalize on emotionally-charged relationships to advance the claim that the author has a special relation with the work. The most notable example of this is the parent-child analogy. As arguments, however, analogies are less than convincing. When taken seriously, the analogies collapse on their own terms. Analogies are best understood as an expression of scholars' intuitions about the "specialness" of the author-work relation. Intuitions, however, are not the same as arguments.

   That is not to say that analogies are never arguments. When arguing by analogy, the argument consists in showing the similarity between the two sets of objects. One achieves this goal only if the analogy is convincing. On this score, the moral rights analogies fail. If, instead, their goal is to stimulate thinking about this author-work relation, then they are only slightly more helpful: they show us that these analogies show us only what the author-work relation is not, rather than what it is. From this I conclude that, on the whole, the analogies offered by moral rights proponents obscure, rather than illuminate, the relation between the author and the work.

   The Article proceeds as follows: Part II reviews analogical reasoning in general, in law, and in the sciences. It argues that analogy has less value for theoretical inquiries in non-scientific disciplines than in scientific disciplines. As a result, it contends the analogies invoked by moral rights scholars should be viewed skeptically. Part III analyzes the analogies proffered by moral rights theorists. It argues that they add very little to the explanation of the relation between the author and the work. Their contribution, if they have one, is to highlight the features that are thought critical to moral rights. This includes ideas like "creation implies control" and "specialness-of-authorship implies vicarious harm." Whatever the value this contribution has, it is outweighed by the analogies' tendency to obfuscate. Analogies used by moral rights scholars, I conclude, are rhetorical rather than analytical tools.

2. ANALOGICAL REASONING

   Before analyzing these analogies, it is helpful to review the nature of reasoning by analogy for at least three reasons. First, reasoning by analogy is a prominent--if not the prominent--feature of legal reasoning. Moral rights scholars are, after all, legal scholars above all else. Second, since moral rights scholars argue by analogy, understanding analogical reasoning helps us to understand arguments of moral rights scholars. Third, both legal and nonlegal thinkers have scrutinized the value of reasoning by analogy, and here that one can determine whether analogies are valuable in explaining the author-work relation.

   In this Part, I argue that analogical reasoning is most useful as a starting point for further inquiry, rather than as a means for conclusive argumentation. By examining how analogical reasoning works in the sciences--where hypotheses are tested against observation and experiment--I show that analogical reasoning rarely provides definitive answers in science. Yet legal scholars often want analogical reasoning to do more work in law than in science. They want, in other words, analogical reasoning to provide arguments and answers even when it fails to perform this task in science. Moral rights analogies are thus...