rights are defined by the implementing legislation, burdensome litigation is virtually assured. Moreover, as discussed below, adherence to Berne and the pressures that will result, both internal and external, will likely result in the moral right being given broad scope as the law develops. 40(...continued) Buffet v. Fersing, Cour d'appel, Paris, 1962, D. Jur. 570, the court prohibited the owner of a refrigerator that had been painted by the artist Buffet from selling individual panels of the refrigerator upon Buffet's claim that separation of the panels mutilated his work. In Snow v. The Eaton Centre, 70 ont. 2d 105 (1982), a Canadian court ordered removal of Christmas ribbons from a sculpture of geese in a shopping mall upon the complaint of the sculptor. The mall owned the sculpture. Similarly, in Crimi, 89 N.Y.S. 2d at 815-18, plaintiff invoked droit moral in an attempt to force a church to restore a fresco owned by the church that had been painted over by the church. The claim was rejected due to the absence of droit moral in the United States. Cf. Serra v. General Services Administration, 86 Civ. 9656 (S.D.N.Y. Aug. 31, 1987) (LEXIS Genfed lib.) (dismissing on sovereign immunity grounds an artist's claim that the government was not permitted to move a sculpture it owned that was disrupting the use of a Federal plaza because, inter alia, "removal to another site would so extensively impair its integrity as to constitute a fundamental alteration and distortion of the work." (Complaint at 46)). Further, owners of buildings subject to architectural copyright could suddenly find that they were living in a protected architectural work that they could demolish or modify only under certain limited conditions without the architect's permission. See H.R. 1623, § 9 (d) (permitting the owners of buildings embodying architectural works to make only minor alterations or alterations that enhance utility without the consent of the author); cf. Les Batiments Occupes par des Services Agricoles en Auvergne, Cour de Riom, March 26, 1966, 2 J.C.P. 15183 (1967) (architect awarded damages for addition of annex building, which allegedly upset "the harmonious balance of the building" and injured "his reputation as a man of art."). · 21 C. Regardless of the Legislative Approach that Is As Chairman Kastenmeier has recognized, "[t]here is no doubt that the Berne Convention requires the recognition of [moral] rights."41 Legislative efforts to limit the incorporation of droit moral into U.S. law will not protect against foreign and domestic pressure for full incorporation or the risk that U.S. courts will directly or indirectly implement the requirements of Berne. Neither the minimalist approach incorporated in the Administration bill nor the approach of H.R. 1623 provide adequate protection against these risks. Moreover, although the limitations proposed by H.R. 1623 represent a sensitive and scrupulous attempt to cushion the potential effect of the moral right, they fail to resolve the doctrine's problems and may, themselves, be inconsistent with the requirements of Berne. 1. Pressure for the Full Incorporation of There is authority for the proposition that Article 6 bis is intended to be directly applicable and enforceable under the law of signatory nations.42 But even if Congressional declarations can forestall self-execution, courts faced with moral rights claims will in close cases likely look for guidance to Berne and the laws of those nations that are far more familiar with the rights mandated 41 133 Cong. Rec. H1295 (daily ed. March 16, 1987). 42 As Register Oman stated, "[t]he Berne Convention has three general types of provisions: 1) specific rules that guarantee rights to authors and proprietors; 2) rules that establish more general obligations, leaving the details to national legislation within specified limits; and 3) optional rules whose acceptance left entirely to national law. Absent specific legislation, and depending upon domestic jurisprudence, rules that are susceptible of direct application could be given legal effect by adherence to the Convention." Oman Statement at 11; accord S. Stewart, International Copyright and Neighbouring Rights 48 (1983). If the treaty is not self-executing with respect to directly granted rights such as those in Article 6 bis, this tripartite distinction collapses. 22 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. 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 (continued...) 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. law. Similar changes can be expected in U.S. 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 Senate Hearings at 417 (Statement of Tad Crawford). 48 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. The Ad Hoc Working Group concluded that current protection of the moral right in the United States is 50 compatible with Berne.5 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 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 And, describing the Working Group's Report as painting an "overly optimistic picture of moral rights protection in the U.S., concluded after analysis: In light of the above, it is more accurate to he 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). 53 Id. at 662. |