by the Convention.43 Thus, there will be substantial pressure for the courts to expand the moral right once recognized. Moreover, once the United States is irrevocably in the door, there is likely to be substantial pressure from other members of Berne for changes in U.S. law. Professor Kernochan recognizes that "[w]ithout [a raising of U.S. consciousness for "author's rights" following Berne adherence], other Berne countries might see our adherence as threatening their own hard won Berne gains for authors."44 Once the U.S. adheres to Berne, there will be domestic pressure to broaden the moral right upon the argument that expansion must be done to comply fully with the obligations of Berne membership. Testimony before the Congress already foreshadows such an effort. For example, Professor Kernochan, a proponent of adherence and of the moral right, advocates adherence as a prelude to that objective: "Also important in my view is the pressure Berne adherence should put on us to raise the level of U.S. 'consciousness' about authors' needs and the level of protection we accord our own authors."45 "I would think we should temper our solutions to maximize the chance of adherence. Once in Berne, then we can and should start the process of reexamining and rethinking the flaws in our own statute and mobilizing the forces necessary to do that right."46 Similarly, the representative 43 See, e.g., Crimi, 89 N.Y.S.2d at 816-18, which looked to French cases and international commentators to give content to droit moral. As Professor Kernochan suggested in his testimony before the Senate, "[the Berne provisions] might not be wholly irrelevant in the resolution of ambiguities". Senate Hearings at 178 (Memorandum of John M. Kernochan, Nash Professor of Law, Columbia University) 46 Id. Id. at 165. In response to Professor Kernochan's opinion that "we are sufficiently compatible, considering the pattern of other Berne countries, to join on the problem of moral rights," Senator Mathias replied with his now oftquoted sally: Senator Mathias: It would be your advice to close Professor 23 of three artists' organizations has stated that "after adhering to the Berne Convention we would be well-advised to study adopting an explicit codification of moral rights in our copyright law."47 These positions are consistent with the observation of Professor Damich of George Mason University, who has stated that "[t]he overly optimistic picture of moral rights protection painted by the [Ad Hoc] Report suggests that there are such other compelling reasons for adherence that differences must be minimized or that adherence would provide strong legal arguments for pushing the law toward full recognition of moral rights in accordance with Article 6 bis."48 The experience in the United Kingdom illustrates the danger that adherence to Berne will prompt proposals for changes in U.S. law. The U.K. had maintained the position that its common law adequately protected droit moral under the 1948 Brussels text of Berne. Now that the U.K. is considering adherence to the 1971 Paris text, to which the U.S. would be required to adhere, 49 efforts are underway to change the law to explicitly recognize droit moral, and a draft bill is currently being circulated in the U.K. with such provisions. Similar changes can be expected in U.S. law. If there is to be debate about the scope of the moral right, the time is now, when the issues can be debated on their own merits, not after adherence to Berne, when obligations of Berne will be cited as requiring further legislation. 46(...continued) want to foreclose coming back at some later time as Senate Hearings at 205. 47 48 Senate Hearings at 417 (Statement of Tad Crawford). Damich, Moral Rights in the United States and Article 6 bis of the Berne Convention: A Comment on the Preliminary Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention, Colum.-VLA. at 662-63 (hereinafter, "Damich Comments"]. 49 "Accession or adherence to earlier versions is closed; if we join, it must be on the basis of the 1971 Paris version." Oman Statement at 9 n.13. 24 2. The Minimalist Approach Will Encourage The Ad Hoc Working Group concluded that current protection of the moral right in the United States is compatible with Berne.50 However, Professor Edward Damich, commenting on this conclusion, observed that it "is in error insofar as this conclusion is based on the determination that 'substantial protection' is available for the 'real equivalent' of moral rights under American statutory and common law."51 And, Further, Professor Damich said, "A comparison of the language of Article 6 bis with the protection afforded moral rights in the U.S. leads to the inescapable conclusion that this protection is virtually non-existent."52 describing the Working Group's Report as painting an "overly optimistic picture of moral rights protection in the U.S., he concluded after analysis: In light of the above, it is more accurate to 50 Ad Hoc Report, Colum.-VLA at 547; U.S. Adherence to the Berne Convention: Hearing on H.R. 1623 Before the Subcomm. on Courts, Civil Liberties and the Administration of Justice of the House Comm. on the Judiciary, 100th Cong., 1st Sess. (1987) (statement of Malcolm Baldridge) at 6-7 [hereinafter "Adherence Hearing"] ("Our law presently provides an adequate level of protection for an author's right to demand to be named as the author of his works and his right to object to uses of his work that may discredit his honor or reputation. It meets the minimum levels of the relevant revisions of the Convention. No additional changes are needed.") 51 The Association of American Publishers, commenting on the Report of the Ad Hoc Working Group, observed that the Report's treatment of the moral right issue draws "over-broad generalizations and possibly inaccurate portrayals with respect to domestic law on the subject." Comments of the Association of American Publishers, Inc., Colum.-VLA 650, 655. 52 Colum.-VLA at 655 (Damich Comments). 25. Professor John Kernochan concurred, saying himself to be "generally in agreement with his [Professor Damich's] observations" and adding the "[t]he conclusion that the U.S. law is comparable with Berne here and recognizes moral rights in any sense comparable to that intended by most of the Berne signatories is tenuous indeed."54 But more important than whether the Ad Hoc Working Group is correct is the effect that acceptance of its position will have on the development of our domestic law. Any Congressional acceptance of the proposition that moral rights are already a part of U.S. law would remove the restraints on judicial legislation afforded in the past by judicial rejection of the moral right.55 Indeed, acceptance of the Ad Hoc Working Group's conclusion is a Congressional invitation to further judicial expansion of the moral right (or its equivalent). The The Ad Hoc Report will in all likelihood be cited as a part of the legislative history or ancillary to it. Report invites judicial legislation. For example, the Report characterizes Smith v. Montoro as holding that a failure to attribute authorship "may constitute an implied reverse passing off' and thus violate Section 43 (a) of the Lanham Act";56 and opines further that "[o]mission of an author's may constitute a willful prima facie tort", 57 and "publication under the author's name, with unauthorized changes, may violate his right of privacy or publicity."58 name On a crucial argument in the Ad Hoc Report's analysis, the Report declares that in a recent New York decision the court (not in a moral rights context) implied a contractual covenant of fair dealing, and that "it is likely that courts will apply the implied covenant of fair dealing or good faith to require identification of authors when there is a direct or indirect contractual nexus" -- "[g]iven the prevailing practice of attributing authorship, the public policy favoring it, the cataloging practices of libraries, the 54 55 56 Colum.-VLA 685, 686 (Kernochan Comments). See note 16, supra, and accompanying text. Ad Hoc Report, Colum.-VLA at 553 (emphasis added), citing Smith v. Montoro, 648 F.2d 602 (9th Cir. 1981). ON public interest in identifying authors of works, and the 59 paternity . . . The point here, of course, is not whether the courts will do what the Report suggests that they might do. The issue is that adherence to Berne, with no Federal statutory provision in moral rights, must imply that there is a moral right (or its equivalent) somewhere in American law; that upon the Report's analysis, it lies in large part in state statutory and decisional law; that since the courts have by interpretation of common law principles, or of state or federal statutes, created the right, they are free -- indeed encouraged -- to expand it. In deciding how to apply or expand the right, courts will find themselves freed of restraints against looking to precedents abroad, or to the language of the Convention itself. Thus, the minimalist approach would likely lead to de facto self-execution and incorporation of civil law principles into a litigious, system frequented by large judgments for reputational torts.61 Compounding the problem, most of the doctrines relied upon by the Ad Hoc Working Group are state law doctrines of tort and contract that are far from uniform from jurisdiction to jurisdiction. In addition to inconsistent law, litigants would be faced with choice of law rules to alleged multistate infringements of rights. Consistency and predictability, a desideratum of the law in all fields, does not comport easily with the case-by-case development of the law, which is inevitably jagged, uncertain and achieved only in expensive litigation. In the copyright field, which primarily involves interstate and international commerce, such a situation would be unmanageable. The inconsistency of state copyright laws led to the adoption of the Copyright Clause in the Constitution. At the time of the constitutional convention, twelve of the thirteen states had copyright laws, the provisions of which varied greatly, frustrating consistent national protection for works |