ART CONSERVATION AND THE LEGAL OBLIGATION TO PRESERVE ARTISTIC INTENT
ANN M. GARFINKLE, JANET FRIES, DANIEL LOPEZ, & LAURA POSSESSKY
3 THE BERNE CONVENTION AND INTERNATIONAL INFLUENCES
Adoption of moral rights in this country was a result of the United States' joining the Berne Convention for the Protection of Literary and Artistic Works in 1988. The Berne Convention, established in 1886 in Berne, Switzerland, is the oldest multilateral copyright treaty and is administered by the World Intellectual Property Organization (WIPO), an agency of the United Nations. Article 6bis of the Berne Convention recognizes the rights of “attribution” and “integrity.” This provision states that an author “shall have the right to claim authorship of the work [right of attribution] 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 [the right of integrity]” (Berne Convention 1978). This provision provides a more narrowly defined scope of moral rights than the laws of some of the signatory countries (Recht 1969).1
Moral rights under the Berne Convention are recognized independently of the artist's economic rights and continue to remain with the artist even after the transfer of the economic rights (e.g., sale of the work of art) (Berne Convention 1978). The Berne Convention also recognizes the existence of moral rights after the death of the artist at least until the expiration of the economic rights, except in those countries that do not provide for moral rights protection after the death of the artist (Berne Convention 1978). This exclusionary clause was adopted to offset the disparities in national laws (Françon 1992).
Despite acceptance of the Berne provisions by many countries, the United States did not sign the Berne Convention until 1988 (effective March 1, 1989). The refusal to become a signatory was due largely to disagreement over the acknowledgment of moral rights. The United States had developed alternative solutions to the international intellectual property problems precisely because it did not want to recognize moral rights. These solutions consisted of a combination of bilateral agreements, other multilateral agreements, and the back-door provision of the Berne Convention, which allows the extension of Berne protection to works from non-Berne countries if the works are published simultaneously in that country and in a country that has signed the Berne Convention (Françon 1992).
The primary motivation for the United States to sign the Berne Convention arose from increasing pressures of the growing world economy to develop a more active stance on international intellectual property enforcement, particularly with the thriving piracy of U.S. copyrighted products (House 1986). It was believed that adherence to the Berne Convention would provide greater protection than that obtained through the alternatives that the United States had previously pursued.
Another motivation for the United States to join the Berne Convention was to strengthen the credibility of this country's position in trade negotiations for the General Agreement on Tariffs and Trade (GATT) and to forward a major trade policy goal to formulate an intellectual property code within GATT. The final GATT agreement—which included provisions for intellectual property, formally known as Trade Related Measures on Intellectual Property (TRIPS)—required adherence to the Berne Convention (General Agreement on Tariffs and Trade 1994). The United States recognized that its position supporting Berne-level copyright standards in TRIPS contradicted the fact that we were not a member of the Berne Union (House 1986). Effectively, the United States had to sign onto Berne to gain credibility in GATT.
For these two reasons, the Congress took steps to adopt Berne. Deliberations began on the Berne Convention Implementation Act (BCIA), the enabling legislation. The issue of moral rights raised one of the more intense debates. Congress, however, realizing that a stalemate on the moral rights issue could hold up the adoption of the Berne Convention and consequently hamper the GATT negotiations, dropped the issue of adopting moral rights from the BCIA. With the blessing of the head of WIPO, Congress declared that U.S. law sufficiently recognized moral rights in its existing laws and so modification of the copyright code was not necessary. Thus, the United States signed BCIA in 1988 without enacting moral rights at home.
The rationale of moral rights opponents was that the United States already had implied moral rights through its statutory and common law systems and that any new laws were unnecessary. Their position was that de facto recognition of moral rights is found in contract, trademark, and tort laws. As discussed later in this article, conservators need to be aware of these other rights because even if an aggrieved artist waives the rights conferred by VARA, he or she may still be able to assert other claims against the conservator.