the moral rights of artists: droit moral ou droit pécuniaire?

Journal of Cultural Economics22: 15–32, 1998.© 1998Kluwer Academic Publishers. Printed in the Netherlands.

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The Moral Rights of Artists:Droit Moral ou Droit Pécuniaire?∗

MICHAEL RUSHTONDepartment of Economics, University of Regina, Saskatchewan, Canada S4S 0A2

Abstract. An artist’s moral rights consist of the right to be identified as the creator of a work (Attri-bution), the right to decide when and whether to publish the work (Disclosure), the right to withdrawa work from circulation (Withdrawal), and the right to preserve the integrity of the work (Integrity).As there are two main schools of thought on the monetary aspects of copyright, so are there twoschools on moral rights. Canada embodies two legal traditions, and so provides an interesting casestudy of moral rights legislation. The main interests for economists studying moral rights are (i) theextent to which moral rights should be tied to monetary rights, and (ii) the extent to which moralrights should be alienable.

Key words: moral rights, copyright, economic analysis of law

1. Introduction

Moral rights protect the expression of an artist’s personality through her work. Insome countries they are a part of the copyright statutes, while in others, notably inthe U.S., they have traditionally been protected by common law traditions, in thelaws regarding privacy, or in tort law. It is a matter of debate whether moral rightsshould be conceptualized as something entirely separate from the economic aspectsof copyright law, or whether they are inextricably linked. A question which willrecur throughout this essay is whether we should think of moral rights as simply adifferent type of economic right.

Regarding the obviously pecuniary aspects of copyright, dealing with the rightto prevent copies of works being made, or to have a right to payment when copiesare made, there are two traditions, which could generally be divided as those whichdeveloped in continental Europe and those which developed in the common lawcountries. These two traditions of copyright, and their quite different conceptionsof why we should have copyright laws at all, have led to two streams of thought onthe question of moral rights as well.1

In this essay I wish to ask how we should think about moral rights. It is aquestion which economists have rarely dealt with (Hansmann and Santilli (1997)is an exception), although there is a substantial body of economic literature on themonetary aspects of intellectual property. There is no singleeconomicway to thinkabout moral rights, any more than there is a singleeconomicway to think about

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any other issue; a study of the literature on copyright indicates that the two legaltraditions each have their manifestations in the economics literature. But if in theend there is not a single correct way to think about moral rights, hopefully somegains will have been made in posing some of the important questions.

This paper proceeds as follows. The next section gives a brief history of moralrights, in practice and in commentary. The discussion is focused more on debatesand practice in Canada than elsewhere. The debates in Canada highlight the issuessurrounding moral rights internationally. Canada is a country not just of two lan-guages, but also of two cultures and legal systems. Alexander and Lalonde (1996)note that debates in Canada regarding copyright policy often center around this du-ality. Section 3 describes the law-and-economics approach to copyright. In Section4, drawing on the economics and legal literature, we pose two questions regardinghow economists should address the problem of moral rights. Section 5 concludes.

2. The Evolution of Moral Rights

The weakest statement of moral rights is likely found in the international conven-tion meant to guide the various national statutes. The Berne Convention for theProtection of Literary and Artistic Works, Article 6bis reads as follows:

(1) Independently of the author’s economic rights, and even after the trans-fer of the said rights, the author shall have the right to claim authorship ofthe work and to object to any distortion, mutilation, or other modificationof, or other derogatory action in relation to, the said work, which would beprejudicial to his honour or reputation.

(2) The rights granted to the author in accordance with the precedingparagraph shall, after his death, be maintained, at least until the expiry of theeconomic rights, and shall be exercisable by the persons or institutions autho-rized by the legislation of the country where protection is claimed. However,those countries whose legislation, at the moment of their ratification of oraccession to the Act, does not provide for the protection after the death of theauthor of all the rights set out in the preceding paragraph may provide thatsome of these rights may, after his death, cease to be maintained.

(3) The means of redress for safeguarding the rights granted by this Articleshall be governed by the legislation of the country where protection is claimed.

This article came into the Berne Convention in 1928, although it had been devel-oped, in different ways, in France and Germany in the 19th century.

The four key aspects of moral rights legislation are commonly named as fol-lows: (1) attribution, or paternity – the right to be identified as the creator of awork (or, conversely, the rightnot to be identified as such); (2)integrity – the rightof protection against alteration or mutilation of a work; (3)disclosure– the rightto publish or not to publish a work; (4)withdrawal – the right to remove a workfrom circulation. Note that the Berne Convention includes rights of paternity andintegrity but not the rights of disclosure or withdrawal.

THE MORAL RIGHTS OF ARTISTS: DROIT MORAL OU DROIT PECUNIAIRE? 17

Although in France we could say that a “dualist” approach to copyright de-veloped, with moral rights being identified as something separate from economicrights, the philosophy underlying each strand of rights is the same. RevolutionaryFrance based its copyright statutes on the natural rights theories of Locke, andunderstand intellectual property in the same way we would think of property inobjects, and so requiring full alienability.2 But by the end of the 19th centuryjudges were uneasy with the property analogy, and theorists turned increasinglyto German idealism (Netanel, 1994). The modern grounding of French law is mostoften traced to Immanuel Kant, who defended copyright not because an artist hadcreated certain objects, for which he was owed compensation, but rather becausethe creations embodied the personality of the artist, or were extensions of thatpersonality. This presents us with a non-instrumentalist rationale for copyright,quite different from what developed in England.

With this philosophy underpinning copyright law, tensions developed in 19thcentury France when the economic aspects of copyright became rights which werealienable, and of limited duration. In a landmark case of 1845, in which the sculptorClesinger brought proceedings against transferees of a statue he had created, whichthey had mutilated, the court stated: “. . . independament del’interet pécuniaire, ilexiste pour l’artiste un interet plus precieux, celui de la reputation. . . ” (quoted byRoeder, 1940, p. 555). Through the latter part of the 19th century the rights of attri-bution, integrity, withdrawal and disclosure all received recognition in French civilcourts. In 1901 the Cour de Cassation, the highest French court, gave recognitionto those principles at least some of which would ultimately become the provisionsof the Berne Convention.

In France, the notion ofdroit d’auteur – that copyright exists because of theunique position of the artist relative to her work – has continued to guide copyrightjudgements. Henri Desbois wrote in 1966:

The dualism of the author’s attributes and the supremacy of moral rights areemphasized. . . French jurisprudence is founded on the substance of the dualistconcept, according to which moral rights and pecuniary rights coexist, thelatter flowing from the supreme authority of the former, which is there toprotect the spiritual interests of the author. (Quoted by Toupin, 1993, p. 305).

France continues to have one of the strongest moral rights codes. Its CopyrightLaw of 1957 states:

The author shall enjoy the right to respect for his name, his authorship, andhis work. This right shall be attached to his person. It shall be perpetual,inalienable, and not subject to prescription.

In France moral rights are perpetual, while in the Berne Convention they are not.For example, when Samuel Beckett prevented a performance ofWaiting for Godotwith women cast as the tramps, he was able to place this proscription in his will(cited by Cornish, 1995).

Germany’s copyright law embodies what could be called a unitary approach.Moral rights in Germany – Urheberpersönlichkeitsrecht, or the author’s right of

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personality3 – also derive from Kant, but the inseparability of personal and mone-tary interest is stressed.

2.1. CANADA

Canada’s Copyright Act came into being in 1924, for the most part modelled onthe United Kingdom’s Copyright Act of 1911. Surprisingly, given the changes intechnology and in art forms during this century, there were only minor amendmentsto the Act until 1988, when the so-called “Phase I” amendments were instituted.Bill C-32, which became law in 1997, is the long-awaited “Phase II”.

Until the 1988 revisions, moral rights were protected, if weakly, by the provisions. 12 (7), introduced in 1931 (Canada was the first common law country to makespecific legislation on the matter), which read:

Independently of the author’s copyright, and even after assignment, eitherwholly or partially, of the said copyright, the author has the right to claimauthorship of the work, as well as the right to restrain any distortion, mutila-tion, or other modification of the work that would be prejudicial to his honouror reputation.

This is similar to the Berne Convention rights, to which Canada was a signatory. Itcontains the rights of paternity and integrity.

One of Canada’s leading copyright scholars, Harold Fox (1945–46), noted thatsection 12 (7) offered very little protection:

. . . it is noteworthy that despite the great number of novels and other workswhich are grossly mutilated in transcribing them into cinematographic pro-ductions, no case is on record of this section having been invoked (p. 129).

Fox’s comments are generally scathing regarding the legislation of the time, al-though he is clearly sympathetic to the rights of authors. But section 12 (7) forhim is an example of “the pseudo-intellectualism of Canadian statutory verbiage”(p. 130), and “. . . to some extent anillustration of the type of legislation that so of-ten emerges from parliament – conceived in vagueness, poorly drafted, sententiousin utterance, and useless in practical application” (p. 126).

Although it took until 1988 for substantial revisions to be made, Canada wasinundated by studies of how to improve the Copyright Act through the precedingdecades. The Ilsley Commission (Canada, 1957) recommended that substantialclarification was needed regarding moral rights, both in terms of the rights and theremedies available, agreeing with Fox although with the more temperate languageone expects to find in a Royal Commission.

The Economic Council of Canada’s study (Canada, 1971) has proven to be acentral part of the debate on many aspects of copyright ever since it was published.Following Fox and the Ilsley Commission, they too recommend that the scopeof the moral rights provisions be clarified. However, they recommend that moralrights be, to a degree, alienable:


. . . it has to be recognized that authors’ tastes and circumstances vary widely,and that statutory provisions should not be so detailed and rigid as to hampercopyright owners in making arrangements that suit their individual situations.Some authors would do much to prevent certain adaptations of their works– for example, the conversion of a novel into an unacceptable film version,with the author’s name still among the credit lines; others might not mindthis, provided this remuneration were substantial. Some authors unconcernedwith adaptations of certain of their works may prefer to assign all their rightsin such works for one lump sum, believing that this is likely to bring them thegreatest economic return; others may prefer much more reserved assignments– on moral grounds, economic grounds, or both (p. 156).

Although the last phrase distinguishes betwen “moral grounds” and “economicgrounds”, it is clear that they intend that authors’ rights should be tradable, if theauthor wishes. This idea reappears in the 1980s, as we shall see below.

The study which in essence was commissioned as a response to the EconomicCouncil of Canada, was by Keyes and Brunet, published by the Government ofCanada’s Department of Consumer and Corporate Affairs (Canada, 1977). Indeed,these two studies together provide the most vivid example of the two schoolsof thought on copyright – the economists’ instrumentalist vision, which seemsto dominate the Anglo-American thinking on the subject, and thedroit d’auteurvision of the civil law countries. Keyes and Brunet’s statement that:

Whether or not one considers [copyright] a property right or another kindof right is of no material consequence, if the results are the same. Concernwith the underlying social philosophy of copyright law is unwarranted unlessdifferent theories lead to different conclusions (p. 5).

is hardly supported by their introductory statement that creators’ rights must betanken as the “norm in a revision of copyright legislation [and] . . . the rights ofusers of copyright material . . . a derogation of the norm” (p. iii). (Cited by Roberts,1979).

On moral rights, Keyes and Brunet submit “that moral rights are indeed of equalif not greater importance than pecuniary rights” (p. 55), although they note thatthe distinction between moral rights and pecuniary rights is “not necessarily well-defined. Moral rights do possess pecuniary value as, for example, the reputation ofan artist can influence the exploitation and price of his work” (p. 55).

Their recommendations were for clarification of the paternity and integrity rights,the addition of the disclosure right (which we recall is not part of the Berne Conven-tion, but does exist in French law), and that the term of protection, and the remediesfor artists, be the same as for the other aspects of copyright. Indeed, throughout thereport the authors call for the “harmonization” of pecuniary and moral rights.

We digress here to consider a landmark case in Canada,Snow v. The Eaton Cen-tre (Vaver, 1983). In 1979 Michael Snow was commissioned to create a sculpturefor the Eaton Centre, Toronto’s largest shopping centre. “Flight Stop” containedsixty separate elements of geese in various flight positions, hung, under the artist’s

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supervision, from the ceiling of the galleria. The geese quickly become a symbol ofthe Centre. In 1982 the Centre decided, in an effort to have a co-ordinated Christ-mas display, to put red ribbons around the geese’s necks, and to use these modifiedgeese in advertisements, shopping bags, and so on. Snow was not consulted, andwhen his attention was brought to the fact that the ribbons had been installed, heprotested to the Centre to remove them. His complaints were unavailing, and sohe invoked section 12 (7); in fact his case was built solely on that aspect of thelegislation. The court ruled that the artist clearly felt the ribbons were prejudicialto his honour and reputation, that this view was shared by respected artists andthose knowledgeable in the field. On December 3, 1982, O’Brien J. found for theplaintiff and ordered the ribbons to be removed by 9:00 a.m. on December 6.

While this case brought moral rights into the public eye, Vaver notes that whatis most interesting is that “s. 12 (7) has seen so little litigation” (1983, p. 90). It hadbeen, up to that a point, a “toothless tiger”.

In the 1980s pressure to amend the Copyright Act increased.From Gutenberg toTelidon: A White Paper on Copyright(Canada, 1984) presented recommendationsvery similar to the resulting legislation. Paternity and integrity rights were to beclarified, andany modification to unique works such as paintings or sculptureswould represent infringement. They did not recommended the institution of thedisclosure right.

The House of Commons Sub-Committee on the Revision of Copyright issued itsReport a year later:A Charter of Rights for Creators(Canada, 1985). It also calledfor term and remedies regarding moral rights to be equal to those for pecuniaryrights, clarification of the definition of prejudicial distortion of work, and a right toauthorize the use of a protected work in association with products, services, causeor institutions. What stirred the most controversy in its recommendations, was that:

Unimpeded negotiations concerning the use and assignment of [moral] rightsshould be preferred whenever possible over compulsory arrangements, prohi-bitions and other predetermined outcomes (p. 8).

In the end, the Phase I amendments led to the following relevant sections of theCopyright Act:

14.1(1) The author of a work has, subject to section 28.2, the right to theintegrity of the work and . . . the right, where reasonable in the circumstances,to be associated with the work as its author by name or under a pseudonymand the right to remain anonymous.(2) Moral rights may not be assigned but may be waived in whole or in part. . .14.2(1) Moral rights in respect of a work subsist for the same term as thecopyright in the work.28.2(1) The author’s right to the integrity of a work is infringed only if thework is, to the prejudice of the honour or reputation of the author,(a) distorted, mutilated or otherwise modified; or(b) used in a association with a product, service, cause or institution.


So, in Canada rights of paternity and integrity are now given more explicit protec-tion; the disclosure and withdrawal rights were not introduced. The integrity rightregarding paintings, sculptures, and engravings applies to any alteration made, andnot simply those which are deemed specifically to be prejudicial to the honour andreputation of the artist. Moral rights may be waived but not assigned, except onthe death of the author, when they may be bequeathed. The term of moral rights isthe same as the term of the economic interest, which is fifty years after the deathof the author. The remedies for infringement are the same as for violations of thepecuniary side of copyright. There is a right to authorize the use of protected workin association with other products.

Rushton (1997) notes that the Keyes and Brunet report (Canada, 1977) had agreat influence on the Phase II amendments, made law in 1997, regarding author’srights, particularly in terms of their recommendations of neighbouring rights onsound recordings, and a levy on blank audio tape, even though most if not alleconomic studies of these issues had recommended against them. It is interestingto note that the moral rights legislation also closely follows Keyes and Brunet,being essentially identical to their recommendations, except for the fact that theirsuggestion of inclusion of the disclosure right was, after all, not included.

The question remains as to what light economic analysis can shed on the ques-tion of the appropriate scope of moral rights. We now turn to a brief overview of theeconomic analysis of law, and its techniques, after which we return to the questionof moral rights.

3. The Economic Analysis of Copyright

The economic analysis of law has come to be so dominated by a particular schoolof thought that this school is often simply thought of asthe law-and-economicsschool. Posner (1992, p. 23) gives a useful, capsule summary of the core of thelaw-and-economics theory:

The theory is that the common law is best (not perfectly) explained as a systemfor maximizing the wealth of society. Statutory or constitutional as distinctfrom common law fields are less likely to promote efficiency, yet even they . . .are permeated by economic concerns and illuminated by economic analysis.

The classic essay in the field is Coase’s (1960) “The Problem of Social Cost”.The “Coase Theorem” which arises in that essay could be summarized as follows:When property rights in an economy are well defined, and there are insignificantcosts to agents trading in those rights, the resulting economic activity (1) will beefficient, and (2) will be independent of the initial distribution of property rights.However, where there are significant, or prohibitive, costs to transacting in propertyrights, the initial distribution of rights takes on an importance regarding efficiency.In this case, Coase argues, common law rulings on property tend to take accountof the implications regarding efficiency in the allocation of resources. In one ofCoase’s examples, railways in England were not held liable for fires caused by

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sparks emitted by their engines (with some exceptions, and provided reasonableprecautions were taken) not because of some oversight in English law which ne-glected to force railway companies to “internalize their external costs”, but ratherbecause, all things considered, more net wealth would be created by landownerskeeping inflammable property a safe distance from the railway tracks rather thanrailways having to adjust their activities to avoid sparks lighting fires. (It is worthnoting at this point that the usual distinction between the law of property, whichis concerned with the definition of property rights, and the law of torts, which isconcerned with the protection of property rights, becomes blurred (Posner, 1992,pp. 31–32)).

This approach to the study of law is not without its critics: see Baker (1975),Coleman (1984), or Radin (1996) for example. The criticism is on the followinggrounds:

1. The law is purely a means to an end, namely efficiency in the Kaldor-Hickssense, and the role of other goals, say “natural rights in property” for example,are downplayed.

2. The “end” which the law pursues, in the law-and-economics approach, iswealth maximization, with no concern for the distribution of income.

3. An outcome of its premisses is a preference for commodification, to a degreewhich some could find morally repugnant. Posner gives his version of theCoase theorem as follows:

. . . if every valuable (meaning scarce as well as desired) resource wereowned by someone (the criterion of universality), ownership connoted theunqualified power to exclude everyone else from using the resource (ex-clusivity) as well as to use it oneself, and ownership rights were freelytransferable, or as lawyers say alienable (transferability), value would bemaximized (1992, p. 34).

How does the law-and-economics approach deal with the question of copy-right? In common with its analysis of many other issues, the problem of optimalcopyright is treated as another application of the Coase theorem. In other words,the question posed is: “What allocation of rights to creators of artistic works (and,correspondingly, what rights to those who would use and enjoy such works) wouldmaximize total income?” The problem is in the realm of the second-best, since theinformation contained in a creative work is a non-rival good. The optimal degree ofcopyright protection will balance the benefits of encouraging the creation of newworks by ensuring economic returns to the creator, and the cost of restricting publicaccess to the work. In the words of Landes and Posner (1989, p. 326): “Striking thecorrect balance between access and incentives is the central problem in copyrightlaw”.4

Noticeably missing from the studies in the law-and-economics literature is anynotion that the creator of an artistic work has any sort of “natural right” to legal


protection from copying. Indeed, the authors who raise the issue at all tend to doso only in order to dismiss it: see Breyer (1970), Burrows (1994), or Hurt andSchuchman (1966) for example.

Perhaps the great insight of the law-and-economics studies of copyright, andtheir refusal to award “natural rights” to creators, lies in the equal treatment givento the interests of the artists and the interests of the audience. In studies which rejectthe law-and-economics approach, for example the Keyes and Brunet report, whichstates that creators’ rights must be taken as the “norm in a revision of copyrightlegislation [and] . . . the rights of users of copyright material . . . a derogation fromthe norm” (Canada, 1977, p. iii), we cannot hope to receive balanced policy advice.In Landes and Posner’s (1989) study of the optimal degree of copyright protection,the maximand is social welfare, taken as the sum of producerand consumersurplusfrom works which have been created, less the cost of creating new works and thecost of administering the copyright system. The returns to producers receive noprivileged status.

The law-and-economics literature has surprisingly little to say on the questionof moral rights. In hisLaw and Literature(1988) Posner mentions moral rightsonly in a footnote, and even at that only to give references to writings on this“European doctrine”. Hansmann and Santilli (1997) focus on the point that moralrights allow for divisible rights in a property; a seller can transfer some aspectof a property while retaining other rights in the property (known as a “negativeservitude”); this paper is discussed in more detail below. Hurt and Schuchman(1966, 423–424) raise the issue that moral rights derive from thinking about worksof art as extensions of the personality of the author, but go on to say that “A lengthydiscussion of these asserted [moral] rights is unnecessary here, because they couldbe substantially protected without resort to a copyright system”. Burrows (1994)says the same. Patterson (1968, pp. 217–221) considers moral rights to be of signif-icant value, but he, like the authors just mentioned, sees the issue as one which canbe dealt with through the common law rather than by statute. Indeed, Kaplan (1967,p. 78) suggests that protection of moral rights through copyright statutes hindersthe development of moral rights in the common law to a degree that actually servesto weaken artists’ rights.

It is clear that the statutory provisions one finds in continental Europe offergreater protection of moral rights than have existed in the U.S. We can illustratewith two examples.

In the first case, known in the U.S. asShostakovich v. Twentieth Century FoxFilm Corp, soundtrack music for the 1948 filmThe Iron Curtainwas taken fromthe works of Shostakovich, Prokofieff, and others. The composers objected to this,feeling that use of their music would imply approval of the film’s content, withwhich, in fact, they did not wish to associated. France’s moral rights regime grantedthe application by the composers to prevent a screening of the film. But in theUnited States, without moral rights legislation, the application failed. See Wyburn(1995, p. 321).

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In a second case, in the U.S. beingHuston v. Turner Entertainment, the heirs offilm director John Huston objected to the screening of a colourized version of hisblack-and-white filmThe Asphalt Jungle. The original version was filmed in theU.S. and under U.S. copyright law Huston is deemed to have been an employee,and so not the author of the film at all. Thus, his estate had no grounds for anapplication based on moral rights. In France, however, even though neither Hustonnor the film were French, the application preventing broadcast of the colourizedversion was ultimately successful. Under French law moral rights extend to allworks irrespective of origin. See Gendreau (1993) for a detailed discussion of thecase in France.

We should remember that films are a complicated endeavour, and that privatecontracts will often arise where there are likely to be disputes. Cornish (1995, p. 10)writes:

If one gets beyond the high-flown rhetoric into details of practice in Franceand similar countries, two things become clear. First, where authors are of-fered the legal opportunity to object to certain ways of exploiting their works,situations arise regularly where they assert claims. . . . Where the matter isa continual source of tension, as with films, in all likelihood it will be re-solved by collective bargaining to a level of detail which could not scarcelybe achieved by general principles, statutory or judge-made. . . .

Secondly, the rights can be defined in general law only in basic terms:they must be moulded by courts to fit particular cases, both in determining thescope of rights and in settling appropriate remedies. In many French cases,the mighty assertion of authorial dignity is assuaged by a quite minor awardof damages.

4. How Should We Think About Moral Rights?

What, then, should be the approach of an economist to issues surrounding moralrights? Obviously there will be no single answer to this. But we can at least identifysome of the questions economists would need to address.

4.1. TO WHAT EXTENT SHOULD MORAL RIGHTS BE ALIENABLE?

Why would an economist ever wish to limit alienability? As Epstein (1985, p. 971)points out, alienability of property rights generally serves not only the goal of themaximization of the wealth of society, but also of individual liberty. But we canthink of four types of situations where a case for inalienability could be made.

In the first case, there is some kind of market failure preventing efficiencyfrom obtaining. A restriction on alienability might be the route to a second-bestoptimum. Calabresi and Melamed (1972) give the example of a land owner con-templating the sale of his land to a polluter whose activities would lower the valueof neighbouring land to the degree that aggregate wealth would fall. In the absence


of transaction costs the various neighbours could purchase the land themselvesto avoid the pollution problem. But if the neighbours are numerous enough thatthe necessary transaction costs would be prohibitive, a prohibition on the sale ofthe land would be wealth enhancing. Epstein (1985) gives a similar case, where aperson is contemplating selling access to a common pool. For example, a farmerlocated on a river could consider selling access to water from the river, depletingthe water available for downstream users. An alienability restriction could at leastto a degree limit the over-exploitation of the common-property resource.

In the second case, there is a loss in social welfare not from a particular salewhich might cause harm, as in our first case, but rather from a type of thing beingalienable inanycircumstance. This type of case is central to the analysis of Radin(1996). In her work, wealth maximization is not the single criterion for policy, asit arises from an indefensible “commodification” of all aspects of the world. Theidea that something valuable is lost when everything is commodified and alienableis one way to think about Richard Musgrave’s (1959, 1987) notion of merit goods.In his 1987 reconsideration of merit goods, Musgrave talks about “communitypreferences” as “. . . the setting in which the concept of merit or demerit goodsis most clearly appropriate, and where consumer sovereignty is replaced by analternative norm” (1987, p. 452). He distinguishes clearly between trade which isan offence to human dignity and what we would more usually think of as negativeexternalities. But that is as close as economics as such comes to dealing with thisissue. Charles Taylor (1995) gives a lucid account of how confining the study ofsociety within models where everything can be reduced to individual preferences,or “atomism” as he calls it, limits our understanding.

The third case where it may be justified to restrict alienability is paternalism.There are two kinds of paternalism: a kind imposed on one’s self, and a kind inwhich one imposes restrictions on another. The classic example of the first kindis Ulysses and the sirens. We can imagine a case where one would wish to haverestrictions on transfers of goods or services under the knowledge that one might atsome future moment wish to buy or sell something acting on an impulse which isnot consistent with how we would see our well-being in the cool calm of reasoneddeliberation. Under the second type of paternalism, one would wish restrictionson alienability based on the knowledge that someone else might wish to buy orsell on impulse, against their own well-being, about which they may or may notever be capable of reason to a degree acceptable to ourselves. Note that this secondcase – pure paternalism – should not be confused with externalities. It is not thatthe paternalist suffers a loss in utility when someone else acts against their owninterests, as defined by the paternalist, but simply that the paternalist wishes toraise the welfare of those with insufficient knowledge or foresight (Calabresi andMelamed, 1972, p. 1113).

The fourth reason that has been given in defence of alienability restrictionscenters around income distribution. Can restrictions improve the well-being ofthe poor? In the economics-and-law literature this question arises in writings on

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alienability and on the doctrine of unconscionability. The latter doctrine concernscontracts which can be declared invalid if one of the parties was a signatory to thecontract as a result of fraud, duress, or undue influence. All of these reasons forunconscionability are about the means by which the contract was made, rather thanabout the substance of the contract. Economic studies of the doctrine generally con-clude that, so defined, unconscionability can be defended on efficiency grounds.5

But there has been some movement to declare “unequal bargaining power” asgrounds for invoking the unconscionability doctrine. As Trebilcock (1976) pointsout, this concept is exceedingly difficult to pin down. Its application would meanthat contracts could be reviewed on the grounds that there was not a “just price”,even though there was nothing wrong with the process by which the price wasarrived at. As with the invalidation of contracts on grounds of unequal bargainingpower, so with restrictions on alienability, which simply impose the proscriptionex anterather thanex post. Calabresi and Melamed (1972) note there are certainlydistributional consequences to alienability restrictions, although not necessarily infavour of the poor. Indeed, Calabresi and Melamed warn against alienability restric-tions where the claim is that there exists an externality or a case for paternalism,when in fact the true reason for the restriction is distributional. Epstein (1985) cau-tions against alienability restrictions where the justification is distributional: “. . . ifthe [distributive] ends are proper, then they are best achieved through taxation,which at least has the rough virtue of working redistributions from rich to poor”(p. 988).

When we turn to rstrictions on the alienability of moral rights, we find aspectsof all of the above general reasons for alienability restrictions.

Netanel (1994) gives a thorough guide to the nature of the alienability of moralrights in France, Germany, and the United States. In Continental Europe and inCanada, a broad-brush generalization would be that in practice one cannot waiverights against modifications to work that are not yet known, although one can waiverights for specified modifications. The United States’ Visual Artists Rights Act of1990 allows waivers of moral rights by the express written consent of the artist toa specific person for a specific use, but does not allow blanket waivers.

The externality argument for restricting the wholesale transferability of moralrights is that the utility of those other than the artist and the owner of a work isaffected when a work is altered. The work may have become part of the public’scultural heritage, a reference point, whereby the quality of life is diminished if thework is changed (Hansmann and Santilli, 1997, p. 106). There might also be amore specific externality, when an artist waives moral rights for one owner of herart, which affects the owners of other works by that artist. An action which alters awork and hurts the artist’s reputation as an artist lowers the value of works ownedby others. While Hansmann and Santilli claim this is a valid argument, it is notclear that there is a net social loss in this case, especially if such actionsincreasedthe market value of works by other artists. In other words, what appears to be anexternality may simply be a redistribution of wealth.


In terms of the second ground for restricting alienability – that some thingsought not to be commodified under any circumstances as doing so is an affront toour dignity – the notion of moral rights as representing the personality of the authorcomes into play. Following the Kantian argument,6 the right to communicate one’sthought is essential to our autonomy and freedom, and so trade in the integrity ofthis thought cannot be permitted.

Can restrictions on the alienability of moral rights be justified on the “external-ity” and the “non-commodification of personality” arguments simultaneously? Theexternality argument takes us into the world of markets, and the interests of thoseother than the artist. It makes a commodity of the artist’s reputation. So perhapsthese two arguments cannot be used together. On the other hand, it is generallyrecognized thatany individual right must to some degree be balanced by otherconcerns (e.g. the right to free speech does not guarantee the right to slander).7

Vaver (1987, p. 753), who generally believes there should be restrictions on thewaivability of moral rights, cautions against reading too much into the “personal-ity” argument, which is “. . . incomplete because it ignores the social and economiccontext in which these rights have come to be asserted”. He goes on to say “[i]t maybe distasteful to equate artistic endeavour with trade in goods or services, but theanalogy is nonetheless appropriate for the many authors who rely on their creativetalents for their livelihood” (p. 754).

We must also consider the criticism of the “personality” argument, which claimsthat it is based on an outdated, romantic version of authorship. What can we sayabout moral rights as a protection of the personality of the author if, in answer tothe question “what is an author?”, one responded as follows:

We are accustomed . . . to saying that the author is a genial creator of a work inwhich he deposits, with infinite wealth and generosity, an inexhaustible worldof significations. . . .

The truth is quite the contrary: the author is not an indefinite source ofsignifications which fill a work; the author does not precede the works, he isa certain functional principle by which, in our culture, one limits, excludes,and chooses; in short, by which one impedes the free circulation, the free ma-nipulation, the free composition, decomposition, and recomposition of fiction(Foucault, 1992, p. 927).

It is difficult to find a justification for moral rights, or copyright law at all for thatmatter, if artists are reduced to the status of “functional principles”. While it is un-doubtedly true that the 19th century development of authors’ moral rights in Franceand Germany were not unrelated to “romantic” conceptions of the artist,8 a surveyof the literature indicates that there are few scholars of law or economics who areready to embrace Foucault’s radical anti-humanism with all of its implications. AsCornish (1995, p. 9) eloquently states:

There are those who choose to treat the Romantic vision as in some wayimposed on dim perceivers; but there is a larger faith (I am happy to belong to

28 MICHAEL RUSHTON

it) which believes that its own judgment in appreciating the arts and honouringartists is not unduly conditioned by the manipulators of bourgeois values.

Regarding paternalism, it is plausible that artists may wish to protect themselvesfrom impulsively selling off their moral rights in works when income is at a lowebb. Canada’s (1985, p. 7)Charter of Rights for Creators9 dismissed the paternal-ism argument:

Freedom is vital to the creative environment. Concerns expressed that hard-pressed and non-established creators may be tempted to give away too muchcontrol over their works are well meant, but lead to undesirable constraints.

This is a rejection of paternalismimposedon artists, but does not really addresswhether artists might want some degree of self-paternalism.

Finally, we turn to restraint on the waivability of moral rights on distributionalgrounds. It is difficult to distinguish between income distribution arguments andconcerns about bargaining power. Vaver (1987, p. 774) claims that complete trans-ferability of moral rights would “sound the death-knell for virtually all moral rightsin Canada”. Contracts between corporations and artists will be in the form of stan-dardized contracts almost certain to eliminate moral rights. Dworkin (1994, p. 28)echoes the sentiment:

The existence of an uncontrolled power to “agree” to waive moral rights callsinto question the effectiveness of the entire code of moral rights. Presumably,unless a contract can be attacked on the grounds of undue influence or restraintof trade, standard waiver clauses will strip many authors of all moral rights.

To summarize the discussion, a case can be made for restricting the alienabilityof moral rights on the grounds of externalities on self-paternalism of artists. The“inequality of bargaining power” argument made by Vaver and Dworkin is notone that would appeal to economists who put the burden of proof on those whowould restrict trade, since it’s not clear there is a social loss, and we would usuallypresume a social gain, when individuals engage in voluntary exchange.

4.2. SHOULD MORAL RIGHTS BE TIED TO PECUNIARY RIGHTS?

In Canada moral rights and pecuniary rights are closely tied; the term and reme-dies are the same, as virtually every study leading up to the Phase I amendmentsrecommended. Why should this be the case?

Hansmann and Santilli (1997) argue that allowing moral and pecuniary rightsto be treated separately allows for more flexibility in the allocation of propertyrights. Generally the law is unfavourable to negative servitudes in property, butthere are sometimes efficiency grounds for them, in particular where the originalowner (the artist) has a continuing interest in the treatment of a property after ithas been transferred. If an author’s interests in a work are to be divided betweenthe pecuniary and moral, such that the former can be transferred while the latter isretained, it is not clear why the term or remedy in the event of infringement should


be the same. For example, the limited term of copyright arises from a considerationof the balance between incentives to create a work and public access to that work.If works fall into the public domain fifty years after the author’s death, it is likelybecause expanding term beyond that point would have no incentive effects for theauthor, but would needlessly limit access to the work. But moral rights have adifferent rationale. If the point of moral rights is to preserve those aspects of aculture that bind a nation together, then a case could be made for a perpetual moralright. Or, if the point of moral rights is to protect the pecuniary interest of theauthor, in the sense of preserving her reputation and maintaining the value of all ofthe author’s works, then remedies for infringement would need to be calculated onthat basis.

This is a case where even those critical of the law-and-economics method inother areas would seem to agree; there are gains to be had in recognizing thedifferent nature of moral and pecuniary rights.

5. Conclusion

Moral rights present a challenge for the economist, since they are part of a copy-right system which “like many institutions of civil society, is in, but not necessarilyof, the market” (Netanel, 1996, p. 288). Canada embodies different legal traditions,and so its copyright system has been the subject of intense debate, and, in the end,a great degree of compromise.

Moral rights take us to the heart of the key question facing cultural economists:“What makes art different from other goods?” It also takes us to the question of“what makes artists different from other producers?”

We found that a case can be made for restricting the alienability of moral rights,even if we accept as a general premise that, absent externalities, voluntary exchangeis wealth enhancing. There are also grounds for treating moral rights as somethingdifferent from the pecuniary rights in copyright. There are monetary aspects toartists being able to protect their reputation, of course. But there are non-monetarywelfare aspects as well. Since the Berne Convention represents a “lowest commondenominator” in terms of moral rights, it will not be a driving force towards har-monization of moral rights around the world. But as new technologies force themonetary aspects of copyright to evolve, so too will moral rights.

Notes

* This paper was prepared for the Canadian Law and Economics Association Ninth John M. OlinAnnual Conference in Law and Economics, held at the Faculty of Law, University of Toronto,September 1997. The author thanks Wendy Gordon and Ejan Mackaay for their discussion andinsights. The author alone is responsible for the errors which remain.

1. Goldstein (1994, p. 166–171) begins his discussion of the “two cultures” of copyright in generalwith a consideration of the difference of treatment of moral rights in particular.

2. See Ginsburg (1990) for a history of copyright in revolutionary France.

30 MICHAEL RUSHTON

3. Cornish (1995, p. 8) and Netanel (1994, p. 2) agree that this is a better English-language descrip-tion of what these rights are about than the term “moral rights”.

4. Also see Besen and Kirby (1989), Besen and Raskind (1991), Johnson (1985), Koboldt (1995)and Novos and Waldman (1984) for applications using this approach.

5. See Epstein (1975) or Posner (1992, p. 113–117).6. Netanel (1994, pp. 17–19) provides an exposition.7. Netanel (1994, p. 60).8. See Aide (1990), Berg (1991), Bowrey (1994), and Earle (1991).9. Not an actual law, of course, but a committee recommendation.

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the moral rights of artists: droit moral ou droit pécuniaire?

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