The Continental Moral Rights Doctrine and its Applicability in the United States Copyright System

In the last half of the twentieth century, international copyright protection has become of much greater concern as the copyright industry has become supranational. Treaties enacted in the last ten years such as the Berne Convention Implementation Act, the Uruguay Round Agreements Act, and the Agreement on Trade-Related Aspects of Intellectual Property Rights, provide the highest copyright protection available at the international level. Global piracy has declined in the last several years because of these provisions. However, the adherence by the United States to these treaties has caused controversy; some maintain that it represents a major overhaul of federal law in many spheres, not only in copyright. So the adherence to these treaties by the U.S. has brought a clash of the two systems in the international copyright field - the copyright system and the author’s rights system. The author’s rights system (countries such as France, Germany, Italy, and most in Latin America) focuses almost exclusively on the individual creator - the author - while the common law system (countries such as the U.S. and the U.K.) focuses on the balance between the author’s property rights and the people’s right to learn. Along with the growth of international trade, an emphasis on natural law in the copyright field has emerged. These “Moral Rights” advocates claim that the copyright system in the U.S. does not sufficiently protect the personal, non-economic rights of the authors. This paper takes the position that the U.S. copyright system has made an effort for the past two centuries to accomplish a balance between the authors’ property rights and the people’s right to learn. However, this effort has been threatened by section 106A of the Copyright Act which extends the scope of moral rights protection. This paper analyzes whether the inclusion of the moral rights doctrine in the U.S. statutory copyright system is unconstitutional