A PROPOSAL FOR THE WTO TO ENHANCE MORAL RIGHTS PROTECTIONS

By

Bryan  J. Hoppinga1

I. INTRODUCTION

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.

Phillips, additionally concerned a Japanese sculptor[14] and a British landscape architect,[15] and it may have involved issues over the scope of moral rights protections afforded to each contributor who elects to enter the international marketplace.  For the artist or author who experiences varying degrees of protection, complications may ultimately affect international trade if the individual elects to create works only in locations where the protections are the greatest.  To ensure the amount and quality of work produced does not diminish, each nation and trade organization must balance the protections for the creator against the ability to implement the protections while maintaining an efficient economic structure.

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. 

II. MORAL RIGHTS

A. Why do moral rights exist?

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]   

B. The Development of Moral Rights.

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 Whistler c. Eden, the court recognized the right of disclosure an artist has in their work.[39]

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] 

III. MORAL RIGHTS PROTECTIONS

A. Moral Rights in France.

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 the French methodically developed the moral rights system on a case by case basis, the French judicial decisions not only formed the basis of moral rights protections, but also laid the groundwork for future developments in the field.[43]   Three of the four elements of moral rights were first recognized through judicial decisions and the fourth, the right to retraction, was created through statute.[44]  The three common law rights developed and recognized in France, developed in succession and have since become incorporated into the French Intellectual Property Code.[45]

The first right to develop was the right of disclosure, which was initially recognized in Whistler c. Eden, when the court held "an artist's had the right to remain the master of his work, and to refuse to deliver it so long as he is not satisfied with it[.]"[46]   In Carco c. Camoin the French Court d'appel held the artist "to be within his rights to remove from the marketplace and destroy any of the unsatisfactory paintings....restored without his permission[.]"[47]  Lastly, in Rouault c. Consorts Vollard when the Court d'appel again found in favor of the artist and his heirs and held "until the final delivery the painter remains master of his work, and may perfect it, modify it, or even leave it unfinished if he loses all hope of making it worthy of himself."[48]

The right of attribution was first declared in the mid-nineteenth century when the Paris Cour d'appel held "the collaborator whose name has been omitted without his knowledge from the title of a work may obtain recognition of his authorship and his rights through the court."[49]  The right of attribution was developed in France to include four separate aspects to the right: the right for an artist to have their name appear on a work unless other terms have been agreed to; the right have the names of all the artists shall appear with a work when the work is created by several artists; the right of an artist to anonymously publish a work upon the express consent of the artist; and the right of an artist to prevent their name from being associated with damaged work.[50]

The right of integrity was a development of the early twentieth century.[51]  The court announced the new moral right in a suit that sought to enjoin publishers from printing reproductions of François Millet's paintings, which his heirs viewed as misrepresentative of their father's work.[52]  In granting the new protection the court held that the art in question should be "protected and kept as it emerged from the imagination of its author and later conveyed to posterity without damage from the acts of individuals with dubious intentions guided by some transient fashion or profit motives."[53]

The French legal code has adopted these decisions and now provides several significant moral rights protections.  Moral rights in France include a right which attaches to the author and is "perpetual, inalienable, and impresciptible," and may pass to the heirs or be conferred through a will.[54]  The moral rights granted in France followed the premise that the "author shall enjoy the right to respect for his name, his authorship and his work."[55]   The works protected through the French Code is vast and includes "books...and other literary, artistic and scientific writings...dramatic or dramatico-musical works...musical composition...works of drawing painting, architecture, sculpture, engraving and lithography...photographic works...illustrations....software."[56]  Additionally, "the author alone shall have the right to divulge his work.  He shall determine the method of disclosure and shall fix the conditions thereof, (subject to Article L. 132-34)[.]"[57]  Lastly, the artist or author in France, "shall enjoy a right to reconsider or of withdrawal, even after publication of his work," so long as the artist indemnifies those parties which may be harmed by the action.[58]

One positive aspect of the French Intellectual Property Code, for those involved in the creative arts, is the statutory language does not delineate between works of art and authorship, instead moral rights protections are granted to the creations which receive copyright protection.[59] The approach taken by the French Code protects authors and artists regardless of whom or under what circumstances the art is produced.[60]  Therefore, the French have elected to provide identical protections for all creatively produced material, whether visual art, written words, music or any other copyright protected form.  This statutory approach provides the artist or author with the knowledge of the specific protections their creation will receive; there is no grey area, as any material which receives a copyright will also receive protections in the non-economic rights.

The moral rights offered in the French statutory scheme protect a vast array of material, which is covered in perpetuity.  The protections granted to the artist, include all four aspects of moral rights and cover the broadest spectrum of material, and therefore provide the strongest moral rights protections, which are granted to an individual.[61]  However, problems may arise because of the perpetual nature of the right and the artists' retention of a right no matter how long they have been deceased or how many times the work has changed hands[62] and this position may demonstrate itself to be incompatible with present day international market realities.  Questions and issues may arise over which descendant will control the art produced and whether the descendant will follow the intent of the artist or will the descendent follow their own economic self-interest.  Therefore, while France offers its artists and authors the strongest protections, the protections may be difficult to implement on an international scale.

B. Moral Rights granted by the United States Federal Government

As the United States developed and influenced the world throughout the twentieth century, the nation also became a world leader in artistic endeavors.[63]  While the art produced in the United States may have become prominent for several reasons few, if any, protections were offered in the form of moral rights in the United States because it was not a signatory to the original Berne Convention and for over 100 years did not participate in the agreement.[64]  The lack of moral rights protections was first addressed in the 1980's when the United States Congress passed the Berne Convention Implementation Act of 1988, but the provisions of the Berne Convention were not formally adopted into the United States statutory scheme until the passage of the Visual Artists Rights Act (VARA) in 1990,[65] which provide the artist who holds a valid copyright, the moral rights of attribution and integrity.[66] 

Under VARA the right of attribution provides the artist "the right to claim authorship of that work, and to prevent the use of his or her name as the author of any work of visual art which he or she did not create."[67]  The artist shall additionally "have the right to prevent the use of his or her name as the author of the work of visual art in the event of a distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation."[68]

The right of integrity provided by VARA is "to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation[.]"[69] Additionally the artist is allowed "to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right."[70]  However, in the United States for those artists who receive protection under VARA, problems may nonetheless exist as the artist does not always recognize and comprehend the nature of the protections, which have been granted.[71]

The protections offered by VARA are limited as "[o]nly the author of a work of visual art has the rights conferred by subsection (a) in that work, whether or not the author is the copyright owner."[72]  The United States Congress when promulgating VARA elected a very narrow definition for visual art which includes only "(1) a painting, drawing print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered...; or (2) a still photographic image produced for exhibition purposes only, existing in a single copy[.]"[73]  While the United States offers the protections of attribution and integrity through VARA, the protections are provided in a very narrow scope of materials and to this extent, courts have been hesitant to add protections, which are not specifically listed in the statutory language.[74]  The approach of VARA does not provide protections for all types of creative enterprise or even for all types of art as the works, which receive protections must qualify through a very restrictive classification.  In the interest of protecting the moral rights for all artists, the approach taken by VARA is improper as all forms of art should receive equal protections, not based upon an arbitrary and narrow classification of what qualifies as art.

The protections offered to an artist working in the United States are markedly different from those offered in the French Intellectual Property Code.  The protections offered by VARA, extend only to visual art,[75] whereas in France moral rights protections are granted to the same material which receives a copyright,[76] and therefore the scope of material, which receives moral rights protections in France is much broader.  Additionally, the protections in France include the rights of attribution, integrity, retraction and disclosure;[77] on the other hand, VARA protects only the rights of attribution and integrity.[78]  Another major difference between the moral rights protections is the duration of protection, in France the right is perpetual,[79] whereas in the United States the "rights conferred by subsection (a) shall endure for a term consisting of the life of the author.[80]"  Between the United States and France the protections of France offer much stronger protection for the individual artist and cover a much broader scope of material and for that reason may also, prove difficult to implement on an international scale.  However, even though the implementation of the French Code would be difficult, the implementation of VARA may also demonstrate to be problematic, as VARA not only limits the scope of protected art, but also limits the moral rights granted to an artist.

In addition to the limited scope of material covered under VARA there are several restrictions which may ultimately affect whether an artist will be successful in litigation.  The rights of an artist under VARA "may not be transferred, but those rights may be waived if the author expressly agrees to such a waiver in a written instrument,"[81] and for a work with multiple creators "a waiver of rights...made by one such author waives such rights for all authors."[82]  Under VARA, the author is unable to protect visual art when it is altered through the process of conservation or distortion which may occur because of the lighting or placement of a particular work of visual art.[83]  Additionally, for VARA to fully comply with the Constitution, as with any intellectual property rights in the United States, the grant of rights must only be "for limited Times."[84]  Therefore, the United States Constitution would not permit the application of perpetual moral rights and VARA complies as moral rights "shall endure for a term consisting of the life of the author."[85]

IV. MAJOR INTELLECTUAL PROPERTY TREATIES WHICH AFFECT MORAL RIGHTS

A. Preliminary Treaty Information

In the context of international relations, a treaty is "an international agreement concluded between two or more states in written form and governed by international law,"[86] the "agreement may be formally signed, ratified or adhered to between two nations or sovereigns."[87]   Treaties exist in many varying forms and may cover several areas of international relations including peace treaties,[88] nonproliferation treaties,[89] dispositive treaties,[90] and within the context of international trade, commercial treaties[91] and guarantee treaties.[92]

Treaties exist as bilateral or multilateral agreements; therefore each nation may be a party to a vast number of agreements and have obligations under each.  In 2008, the number of nations in the world was considered to be between 189 and 194[93] depending on the source and criteria used, and of these, 192 nations are recognized by the United Nations.[94]  Each nation represents a potential trading partner and potential signatory to a treaty, while the number of potential agreements is vast, each nation must have a procedure by which it will create treaty obligations.

The process to create a treaty in the United States is delegated to the Executive Branch, per the Treaty Clause of the U.S. Constitution which states "[t]he President...shall have Power, by and with the Advice and Consent of the Senate, to make Treaties."[95]  Each treaty made pursuant to constitutional power is considered to be "the supreme law of the land."[96]  Therefore, like the constitution itself, any treaty created by the United States government pursuant to the constitution is considered the "paramount authority"[97] and "is binding upon on all officers and departments of both the federal and state governments[.]"[98]  While there are several treaties which may affect Intellectual Property in an international setting, this paper will focus on two of the most influential, the Berne Convention and the TRIPS Agreement.

B. Berne Convention for the Protection of Literary and Artistic Works

Moral rights began in ancient Rome, took shape in France and had spread throughout continental Europe during the nineteenth century.[99]  During the nineteenth century, most countries in Europe generally recognized some form of copyright protections for a domestic author, although there generally did not exist a formal protection for a foreign author.[100]  A copyright and all of the associated protections would extend only to the limits of a nation's borders in which it was granted.[101]

To increase the available protections and prevent future hostilities, treaty representatives from ten European nations, convened in Berne, Switzerland, in 1886 to formulate the Berne Convention for the Protection of Literary and Artistic Works.[102]  The original treaty agreement called upon "each signatory nation to protect the copyrights of other signatory nations to the same extent that it protected its own copyrights."[103]  However, while remnants of the French concept of droit d'auteur were found in the original Berne Convention, moral rights were specifically not protected in the original agreement.[104]

In 1928, the signatories to the Berne Convention reconvened in Rome to amend the treaty by adding Article 6bis to the original Berne Convention,[105] and to recognize the economic and personal dimensions of a work of art or authorship.[106]  Article 6bis was added to supplement the existing copyright protections in order to protect moral rights.[107]  Specifically, the moral rights of attribution and integrity are protected through Article 6bis, which states:

• (1) Independently of the author's economic rights and even after the transfer of said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.[108]

• (2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may proide that some of these rights, may after the death cease to be maintained.[109]

• (3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.[110]

The protections granted by the Berne Convention extend to both literary and artistic works; however the language allows the signatory nations to condense the specific works which receive moral rights protections.[111]  An illustrative list of what the Berne Convention protects includes "books and other writings; dramatic or dramatico-musical works; choreographic works; musical compositions with or without words; cinematographic works...; works of drawing, painting, architecture, and sculpture; photographic works; and derivative works (translations, adaptations, arrangements of music)."[112]  The Berne Convention significantly altered moral rights protections by acknowledging the existence of the rights of attribution and integrity in an international setting,[113] but concerns exist with the protections Berne has elected to offer to the artist.

The first concern is the failure of Article 6bis to address whether the moral rights protections are waivable,[114] as Article 6bis of the Berne Convention does not contain language which explicitly details "whether moral rights are alienable and/or waivable."[115]  The issue is disputed between scholars and authors, some of whom believe the absence of specific language grants the signatories the right to determine the issue while others have construed the moral rights are "inalienable and unwaivable."[116]

A second concern with Article 6bis is how the agreement provides for the duration of moral rights protections, which include "the existence of moral rights after the death of the author until the expiration of [his or] her copyright."[117]  This provision of the Berne Convention is not absolute, as each signatory may determine whether the moral rights of artist shall be extinguished upon the death of the author.[118] 

C. TRIPS Agreement

The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement is a treaty organized under the auspices of the WTO.[119]  TRIPS was drafted by Director General Dunkel in December of 1991,[120] although the final agreement was not signed until April 15, 1994, in Marrakesh, Morocco.[121]  TRIPS was initially moved forward by the most developed countries, particularly the United States and the members of the European Union, as they were the countries with the most to lose in the area of intellectual property.[122]   While other less developed countries also signed the Agreement, there is some belief it was done as "the TRIPS Agreement [w]as a necessary part of the WTO package[.]"[123]  TRIPS grants both a national treatment as well as "very detailed rules for minimum standards of protection of intellectual property rights."[124]  Additionally, TRIPS provides Most Favored Nation (MFN) treatment to the signatories, a protection which "requires that any advantage, favor, privilege, or immunity granted by a party to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other GATT parties."[125]  TRIPS protects a vast array of intellectual property including "trademarks and geographical indications; industrial designs; patents; topographies of integrated circuits; undisclosed information; and control of anti-competitive practices in contractual licenses."[126] 

To enforce the provisions, "TRIPS generally requires contracting parties to implement into their national laws, enforcement procedures to prevent infringement of intellectual property rights."[127]  In addition to ensure the signatories to TRIPS comply with the agreement, the "Parties to TRIPS must notify the Council on Trade Related Aspects of Intellectual Property of the laws and regulations pertaining to implementation of TRIPS, so that the Council can ensure the implementation of the TRIPS Agreement."[128]

The protections afforded by TRIPS generally hold the parties to a higher standard than the Berne Convention with one notable exception.[129]  The signatories to TRIPS "shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto.  However, Members shall not have rights or obligations under this Agreement in respect to the rights conferred under Article 6bis of that Convention or of the rights derived therefrom."[130]  Therefore, at present, "TRIPS expressly does not protect the moral rights of an author."[131] 

V. APPLICATION OF THE WTO TO IMPROVE MORAL RIGHTS

A. Establishment, Development and Dispute Resolution of the WTO

The WTO is a product of the twentieth century, with its roots in the aftermath of World War II.[132]   In 1947, the original precursor to the WTO, the General Agreement on Trade and Tariffs, or GATT, was formed, and was largely responsible for the regulation of international trade until 1994.[133]  However, in September of 1986, seeking to bolster the treaty obligations, the Uruguay Round of negotiations occurred in Punta del Este, Uruguay,[134] and was motivated in part from a desire to improve intellectual property rights in international trade.[135]  On April 15, 1994, the negotiations were culminated in "The Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations,"[136] and led to the formation of the WTO, which came into existence on January 1, 1995.[137]

The WTO consists of a full membership of 151 nations, in addition to thirty one observer governments[138] and is "an organization for liberalizing trade [by providing]...a forum for governments to negotiate trade agreements [and by providing]...a place for them to settle trade disputes [by operating]...a system of trade rules."[139]  The various WTO agreements have been "signed by the bulk of the world's trading nations...[and] provide the legal ground-rules for international commerce[.]"[140]  The treaty agreements are legal in nature and have the "purpose [to] help trade flow as freely as possible,"[141] but the maintenance of some trade barriers is required in certain instances, "to protect consumers or prevent the spread of disease."[142]

To resolve any disputes which may arise over trade or treaty obligations between members to the WTO, the WTO established the Dispute Settlement Body; an organization composed of all WTO parties and solely responsible for the resolution of disputes.[143]  When there is a disputed matter, it is presented to a panel composed of three to five experts for resolution, and the decision reached by the experts becomes final, unless there is a consensus rejection.  The decision of the panel may also be appealed, by either party to the dispute to a seven member Appellate Body.[144]  As of July 2005, there had been 68 opinions issued by the Appellate Body, of which twenty seven involved the actions of the United States.[145]  However, while the United States had been involved in nearly forty percent of all actions in the Appellate Body, United States federal law prohibits WTO decisions from having a binding effect in the courts of the United States[146] and no provision of the Uruguay Round of negotiations may be applied against a person or entity when it is inconsistent with United States law.[147]  However, while federal law prohibits a decision of the WTO or its Appellate Body from having a binding effect upon those within the U.S. most courts will permit a WTO decision to be taken into account when making a ruling.[148]

B. Why the WTO should be selected to improve the moral rights of an artist.

The WTO is a large international organization with a membership containing a significant number of the industrial nations of the world, organized to remove trade barriers when appropriate in order, to increase trade between nations.[149]  In addition to intellectual property, the WTO affects many other aspects of international business transactions in areas as diverse as trade, agriculture, and licensing agreements.[150]  TRIPS affects intellectual property and secures rights for those involved in international transactions, but is notably silent on moral rights protections.[151] However, several aspects of TRIPS, such as the coordination between the most and least developed nations, the most favored nation status and the overall membership and stability of the WTO and its member nations may make TRIPS the most appropriate to implement international moral rights protections.[152]

The WTO affects many aspects of everyday life, therefore "countries may be willing to make concessions in the area of intellectual property for other gains."[153]  The bargaining power achieved in the WTO through the Uruguay Round "is necessary to achieve high standards of intellectual property protection[.]"[154]  The protections offered by the WTO are not available through conventions which are sponsored by the World Intellectual Property Organization as countries with a lower standard of protection "do not join WIPO Conventions because it is not in their economic interest to do so."[155]

Another reason TRIPS may be the most realistic approach to improve international moral rights protections is the membership of the WTO compared to other intellectual property agreements.  For agreements which relate to copyright and related protections in intellectual property, countries such as "Korea, Singapore and Taiwan are not members of the Berne Convention [and] India, Korea and Singapore are members of GATT and more likely to join the Uruguay Round package[.]"[156]  In the area of patent protection, "India, Singapore and Taiwan are not members of the Paris Convention[.]"[157]  Of these countries only Taiwan is currently not listed as part of the WTO membership.[158]  Therefore, while the WTO will not be able to protect all artists and authors in all international transactions, it has the potential to prevent future disputes as countries which do not recognize other intellectual property agreements appear more likely to recognize an agreement formulated under the auspices of the WTO.[159]

As a whole the organizational format and agreements provided by the WTO, in addition to TRIPS, appear to provide a foundation for nations interested in improving the entirety of their intellectual property rights, specifically the moral rights of an artist in international affairs.  The framework and totality of agreements offered by the WTO appear to provide a context for countries, which are not signatories to other agreements, in order to increase intellectual property rights, including moral rights protections.[160]

C. Proposed TRIPS amendments and how it would be enforced.

The WTO protects international intellectual property rights, through TRIPS, and provides protections for patent, copyright and trademark.[161]  While TRIPS provides protections for several areas of intellectual property it expressly prohibits the grant of moral rights.[162]  Although it is rare, the provisions of TRIPS may be re-negotiated and amended when two thirds of the membership ratifies the change.[163]

By amending TRIPS to include Article 6bis of the Berne Convention, the WTO would establish a position on the importance of moral rights protections in the creative world and artists and authors would have their works protected in the international marketplace.[164]  Article 6bis of the Berne Convention offers broad protections to both artists and authors, but does not impede individual governments from implementing their own policies,[165] by making requirements which may at the least be troublesome and at the most be unconstitutional.[166]  The adoption of Article 6bis to TRIPS would provide a basis for moral rights protections in the international marketplace; however those rights granted need an enforcement mechanism, in order to be effective.

TRIPS contains enforcement mechanisms, which requires its members to provide equitable procedures in addition to effective remedies for when the intellectual property rights have been infringed.[167]  Included in the enforcement provisions are "detailed rules for civil and administrative remedies, provisional measures, border enforcement and criminal penalties."[168]  However, TRIPS also acknowledges the enforcement of these provisions will be dependent upon the resources available and hence will vary from country to country.[169] The enforcement of TRIPS occurs at the national level when a signatory nation does not comply with the dispute settlement understanding authored by the dispute resolution panel and it becomes the "breaching country [which] may be subject to retaliatory sanctions."[170]  Thus, while enforcement and remedies do exist for TRIPS, it would be the responsibility of each country to enforce the moral rights provisions on behalf of the artist or author and would permit each member nation to balance the needs of an international marketplace against any harm an individual artist may suffer.

VI. CONCLUSION

Moral rights protections are not static and never have been, but rather have developed over the course of several centuries to exist as they do today.[171]  Moral rights protections have changed over time and generally depend upon what society, the judiciary and lawmakers view as important policy or legal reasons to protect an artist or author.

Continually developing and improving the methods a nation uses to protect its citizens on an international scale is becoming increasingly important as the markets of the world become increasingly global.  The notions which have previously demonstrated successful not only to protect intellectual property, but all forms of business transactions, may eventually prove to be impractical and outdated.  This paper has examined moral rights under the statutory provisions of France and the United States as well as under the treaty obligations of TRIPS and the Berne Convention.  Of those evaluated, each provides varying degrees of protections to the various forms of creative work, but Article 6bis of the Berne Convention, appears to provide the protections which could best be implemented on an international scale.

For the implementation of Article 6bis of the Berne Convention into the international community, TRIPS appears to be the most reasonable treaty to amend.  TRIPS as demonstrated through its structure and WTO affiliation possesses a unique structure, which is not present in other international agreements and therefore appears to be the most reasonable and the most appropriate approach to improve the protections which are granted.  If TRIPS is amended to include Article 6bis, the agreement may prove beneficial not only to those currently engaged in creative works, but may demonstrate advantageous to those who wish to express themselves creatively in the future.  Amending TRIPS would allow a greater amount of coordination between the artists and authors of the present with those of the past, while still protecting, present day authors and artists from arbitrary acts of a third party, which may damage their reputation and hence the economic capabilities of their work. 

a1 J.D. candidate Gonzaga University School of Law, May 2009; Bachelor of Science History and Zoology, University of Wisconsin-Madison, 2002.  The author would like to thank Professor Sheri Engelken for her time, assistance and insight throughout the writing of the article.

[1] Phillips v. Pembroke Real Estate, Inc., 459 F.3d 128, 129-30 (1st Cir. 2006).

[2] Id. at 130.

[3] Id.

[4] Id.

[5] Id. at 131.

[6] Phillips, 459 F.3d at 131.

[7] Id.

[8] Id.

[9] 17 U.S.C.A. § 102(a) (West 2005).

[10] 17 U.S.C.A. § 102(a)(5) (West 2005).

[11] 17 U.S.C.A. § 106A (West 2005).

[12] Mass. Ann. Laws ch. 231, § 85S (LexisNexis 2000); Phillips, 459 F.3d at 131.

[13] Phillips, 459 F.3d at 143.

[14] Id. at 130.

[15] Id. at 131.

[16] Colleen Creamer Fielkow, Clashing Rights Under United States Copyright Law:  Harmonizing an Employers Economic Right with the Artist-Employee's Moral Rights in a Work Made for Hire, 7 DePaul-LCA J. Art & Ent. L. & Pol'y 218, 221 (1997) [hereinafter Fielkow].

[17] Elizabeth Dillinger, Mutilating Picasso:  The Case for Amending the Visual Artists Rights Act to Provide Protection of Moral Rights After Death, 75 UMKC L. Rev. 897, 900 (2006) [hereinafter Dillinger].

[18] Cheryl Swack, Safeguarding Artistic Creation and the Cultural Heritage:  A Comparison of Droit Moral Between France and the United States, 22 Colum.-VLA J.L. & Arts 361 (1998) [hereinafter Swack].

[19] Id. (quoting Robert J. Sherman, International Conference on Comparative Constitutions:  Note:  The Visual Artists Rights Act of 1990:  American Artists Burned Again, 17 Cardozo L. Rev. 373, 380 n.45 (1995)).

[20] Id. at 361-62 (quoting Dane S. Ciolino, Moral Rights and Real Obligations: A Property-Law Framework for the Protection of Author's Moral Rights, 69 Tul. L. Rev. 935, 958 (1995)).

[21] Id. at 366.

[22] Id.

[23] Swack, supra note 18, at 366 (quoting Harold C. Streibach, The Moral Rights of Ownership to Intellectual Property:  Part I-From the Beginning to the Age of Printing, 6 Mem. St. U. L. Rev. 1, 5 (1975).

[24] Id.

[25] Id. at 367

[26] Id.

[27] Id.

[28] Swack, supra note 18, at 367.

[29] Id. at 368.

[30] Id.

[31] Id. at 368-69.

[32] Id.

[33] Swack, supra note 18, at 369.

[34] Dillinger, supra note 17, at 900.

[35] Id.

[36] Id.

[37] Id.

[38] Id..

[39] Dillinger, supra note 17, at 901.

[40] Swack, supra note 18, at 365.

[41] Id. at 365-66.

[42] Id. at 374.

[43] Id.

[44] Id. at 374-379.

[45] Law No. 92-597 of July 1, 1992, Art. L. 121-1 - 121-9, Journal Officiel de la République Française [J.O.] [Official Gazette of France], March 27, 1997, English translation available at  http://www.wipo.int/clea/docs_new/en/fr/fr062en.html#JD_AL121_1 (last visited March 8, 2008) [hereinafter Law No. 92-597].

[46] Swack, supra note 18, at 374-75 (quoting Raymond Sarraute, Current Theory on the Moral Rights of Authors and Artists Under French Law, 16 Am. J. Comp.L. 465, 467 (1968)).

[47] Id. at 375.

[48] Id. at 376.

[49] Id. at 377 (quoting Raymond Sarraute, Current Theory on the Moral Rights of Authors and Artists Under French Law, 16 Am. J. Comp. L. 465, 472 (1968)).

[50] Id.

[51] Swack, supra note 18, at 377.

[52] Id. at 377-78.

[53] Id. at 378 (quoting John H. Merryman, The Refrigerator of Bernard Buffett, 27 Hastings L.J. 1023, 1025 n.5 (1976)).

[54] Law No. 92-597, supra note 45. 

[55] Id.

[56] Id. at Art. L. 112-2.

[57] Id. at Art. L. 121-2.

[58] Id. at Art. L. 121-4.

[59] Law No. 92-597, supra note 45, at Art. L. 112-2. 

[60] Id. at Art. L 112-1.

[61] See generally Law No. 92-597, supra note 45 at Art. L. 121-1. 

[62] Id. at Art. L. 113-1.

[63] Fielkow, supra note 16, at 224-25.

[64] Id.

[65] Id.

[66] 17 U.S.C.A. § 106A (West 2005).

[67] 17 U.S.C.A. § 106A(a)(1)(A)-(B) (West 2005).

[68] 17 U.S.C.A. § 106A(a)(2) (West 2005).

[69] 17 U.S.C.A. § 106A(a)(3)(A) (West 2005).

[70] 17 U.S.C.A. § 106A(a)(3)(B) (West 2005).

[71] Thomas F. Cotter, Pragmatism, Economics and the Droit Moral, 76 N.C. L.Rev. 1, 27 (1997).

[72] 17 U.S.C.A. § 106A(b) (West 2005).

[73] 17 U.S.C.A. § 101 (West 2005).

[74] Swack, supra note 18, at 396.

[75] 17 U.S.C.A. § 106A(a) (West 2005).

[76] Law No. 92-597, supra note 45, at Art. L. 121-1. 

[77] Id. at Art. 121-1 - 121-9.

[78] 17 U.S.C.A. § 106A(a) (West 2005).

[79] Law No. 92-597, supra note 45, at Art. L. 121-1. 

[80] 17 U.S.C.A. § 106A(d)(1) (West 2005).

[81] 17 U.S.C.A. § 106A(e) (West 2005).

[82] Id.

[83] 17 U.S.C.A. § 106A(c)(2) (West 2005).

[84] U.S. Const. art. I, § 8, cl. 8.

[85] 17 U.S.C.A. § 106A(d)(1) (West 2005).

[86] Black's Law Dictionary 1540 (8th ed. 2004).

[87] Id.

[88] Id.

[89] Id.

[90] Id.

[91] Black's, supra note 86, at 1540.

[92] Id. at 1541

[93] World Atlas, http://www.worldatlas.com/nations.htm (last visited March 8, 2008).

[94] United Nations, http://www.un.org/members/list.shtml (last visited March 8, 2008).

[95] U.S. Const. Art.II. § 2, cl. 2.

[96]Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 212 (1999) (Rehnquist, C.J., dissenting).

[97] 16 Am. Jur.2d Constitutional Law § 51 (1998).

[98] Id.

[99] Dillinger, supra note 17, at 900-01.

[100] Id. at 901.

[101] Id.

[102] Id. at 901-902.

[103] Id. at 902.

[104] Dillinger, supra note 17, at 902.

[105] Id.

[106] Swack, supra note 18, at 383.

[107] Id.

[108] Berne Convention for the Protection of Literary and Artistic Works, art. 6bis, July 24, 1971, 25 U.S.T. 1341, 828 U.N.T.S. 221, available at http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html (last visited March 16, 2008) [hereinafter Berne Convention].

[109] Id.

[110] Id.

[111] Fielkow, supra note 16, at 223.

[112] Monique L. Cordray, GATT v. WIPO, 76 J. Pat & Trademark Off. Soc'y 121, 129 (1994) [hereinafter Cordray].

[113] See Berne Convention, supra note 108.

[114] Fielkow, supra note 16, at 223.

[115] Id.

[116] Id.

[117] Id. at 224.

[118] Id.

[119] Suzy Frankel, WTO Application of "The Customary Rules of Interpretation of Public International Law" to Intellectual Property, 46 Va. J. Int'l L. 365, 370 (2006) [hereinafter Frankel].

[120] Cordray, supra note 112, at 125.

[121] Agreement on Trade Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994),

available at http://www.wipo.int/members/en/ (last visited March 10, 2008) [hereinafter TRIPS].

[122] Frankel, supra note 119, at 370.

[123] Id.

[124] Cordray, supra note 112, at 125.

[125] Id.

[126] Id.

[127] Id. at 135.

[128] Id.

[129] Cordray, supra note 112, at 129-30.

[130] TRIPS, supra note 121, at Art. 9.

[131] Cordray, supra note 112, at 130.

[132] Robin Miller, Effect of World Trade Organization (WTO) decisions upon United States, 17 A.L.R. Fed.2d 1, 11 (2007) [hereinafter Miller].

[133] Id.

[134] Id.

[135] Frankel, supra note 119, at 378.

[136] Miller, supra note 132, at 11.

[137] Id.

[138] World Trade Organization, Members and Observers, available at http://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm (last visited on March 10, 2008).

[139] World Trade Organization, What is the World Trade Organization, available at http://www.wto.org/english/thewto_e/whatis_e/tif_e/fact1_e.htm (last visited March 10, 2008).

[140] Id.

[141] Id.

[142] Id.

[143] Miller, supra note 132, at 11.

[144] Id.

[145] Id. at 12.

[146] 19 U.S.C.A. § 3512(a)(1) (West 2005).

[147] 19 U.S.C.A. § 3512(c)(1) (West 2005).

[148] Miller, supra note 132, at 12.

[149] World Trade Organization, What is the World Trade Organization?, available at http://www.wto.org/english/thewto_e/whatis_e/tif_e/fact1_e.htm (last visited March 10, 2008).

[150] World Trade Organization, Legal Texts, available at http://www.wto.org/english/docs_e/legal_e/legal_e.htm (last visited March 10, 2008).

[151] TRIPS, supra note 121, at Art. 9.

[152] Cordray, supra note 112, at 125.

[153] Id. at 143.

[154] Id. at 144.

[155] Id.

[156] Id.

[157] Cordray, supra note 112, at 125.

[158] World Trade Organization, Members and Observers, available at http://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm (last visited March 10, 2008).

[159] See Cordray, supra note 112.

[160] See Id.

[161] TRIPS, supra note 121, at part II.

[162] Id. at Art. 9.

[163] See World Trade Organization, Members OK amendment to make health flexibility permanent, available at http://www.wto.org/english/news_e/pres05_e/pr426_e.htm (last visited March 10, 2008).

[164] See Berne Convention, supra note 108, at art. 6bis.

[165] Id. at art. 6bis(2).

[166] For an illustrative example of a country where a perpetual right may be unconstitutional, the United States Constitution, grants to Congress in order "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."  U.S. Const. art. I, § 8, cl. 8.  Therefore, in order to grant a perpetual right the constitution would need to be amended.

[167] Laurence R. Helfer, The New Innovation Frontier?  Intellectual Property and the European Court of Human Rights, 49 Harv. Int'l L.J. 1, 41 (2008).

[168] Id.

[169] Id.

[170] Jeffrey F. Levine, Meeting the Challenges of International Brand Expansion in Professional Sports:  Intellectual Property Right Enforcement in China through Treaties, Chinese Law and Cultural Mechanisms, 9 Tex. Rev. Ent. & Sports L. 203, 216 (2007).

[171] See Swack, supra note 18, at 366-387