The world of Copyright, in my opinion, today best reflects the fine move that went on from Industrial to Intellectual Property, albeit in the opposite order.
Copyright, has under its wings, a wide array of creative works (not that inventions cannot have their creative side), most of which today, have undoubtedly acquired a more commercial nature than ever. However, what seems to create the fine balance between its commercial and creative characterestics, is perhaps the presence of a scheme for moral rights.
The Hegelian theory of Personality Justification, that appears to fit the mould of copyright in the best way, talks about property being an extension of one’s personality. We see that in every piece of creative work around us, thus creating room for art critics, historians, curators and so on. Perhaps the theory of Moral rights, also grew in and from the European era of Renaissance, wherein self- expression, freedom of thought and concepts akin came to life.
This having been said, the law in the United States never ceases to amaze me.
On one hand, the United States Constitution, vide Article 1, Section 8, Clause 8, empowers authors with the gift of copyright. On the other hand, the only place for moral rights appears to be in the Visual Artists Rights Act (VARA). Moral rights as outlined therein allow an author of a visual work to avoid being associated with works that are not entirely his/her own, while also preventing the defacement of their works.
However, the importance of Moral rights in the US has found some life, through judicial deliberation.
A much debated scheme of thought came by, vide the Google Book Settlement decision, rendered by Justice Denny Chin of the Southern District of New York.
While it is impossible to quote from the decision, since the thoughts of the judge are weaved throughout the judgment, the approach to moral rights is exceptionally subtle, with reference in a couple of instances as “international” rights or concerns.
I have read this forty eight page decision, now, over a couple of times. And,to be honest, the simplicity with which Justice Chin appears to have brought about the nexus between Copyright as an Intellectual Property, the Commercialization that often drives authors, and associated concerns is a delightful read.