A Question of Moral Rights in the United States
While perusing on Le Monde’s website (French major newspaper) in search of some interesting news of my home country, I discovered an astonishing headline and article. Excerpts of the French classical novel Madame Bovary will be published in the September issue of Playboy magazine.
Exact excerpts of Lydia Davis’ translation are the pieces to be published. But the question of the possible association of Flaubert’s name with a magazine like Playboy remains.
I do not condemn any exercise of freedom of expression and Playboy magazine, with its tremendous pictures of women, is entitled to some cultural references. Neither would I venture in ascertaining French literary heritage at so high a level to be free from any unusual juxtaposition. I just wonder about that curious association with a novel that defied the social codes of its time. Flaubert’s name, reputation and the understanding of its work might be distorted. A hypothesis that raises the issue of moral rights, a legal concept that is still unclear in the United States.
Moral rights aim at protecting the personality of an author with regards to his work. In countries such as France, a creative work embraces the personality of its author. Moral rights are thus perpetual and inalienable, meaning they can’t be separated from the author’s character. Undoubtedly these rights are less protected in common law countries. To quote Roberta Rosenthal Kwall, in her work The Soul of Creativity, “American copyright law rewards economic incentives almost exclusively and lacks adequate moral rights protections”. Although the United States lately ratified the Berne Convention, the idea still remains that the owner of a copyright predominates over the actual author. Some efforts have been made for the United States to adapt its legislation to the Convention requirements.
But as Article 6b explains: “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.” Therefore is it still a matter of domestic legislation. And protections of the author’s name and reputation are still lacking.
The copyright law is, nowadays, much more focused on property violations occurring on the internet. The Internet has challenged the material protection of property rights. Illegal downloading seems untouched by the safeguards set by law. Maybe a different approach would prove more efficient in preserving creations from manipulations. Since utilitarianism proved an important component of the United States legal system, it would not be completely absurd to enforce with more vigor a rule that protects some rights to integrity and attribution. It might benefit the entire society in limiting breaches of property rights. The law is certainly said to provide an example to the society it applies to.