Friday, June 22, 2018

Judge: Public Right To Access Unpublished Works Trumps Moral Rights Of Artist

This is very troubling. An Argentine court has ruled that a deceased author has only “a right of integrity (forbidding any modification of the work without consent of the author) and the right of paternity (to acknowledge the author in every publication).” It appears that the author (and his heirs) may not have a moral right to decide whether or not to publish his works (right of disclosure).

The judge,

grounded his ruling not in the Argentine Copyright Act No. 11.723, but in international treaties that have constitutional hierarchy (Art. 75 subsection 22 of the Argentine Constitution). This includes in particular: the American Convention on Human Rights, also known as the Pact of San José de Costa Rica, Art. 21, subsection 1 (the law can subordinate individual rights to social interests, i.e., the so-called doctrine of the social function of property), and the International Covenant on Economic, Social and Cultural Rights (adopted by the United Nations General Assembly on 16 December 1966), Art. 15, subsection 1 (right of every person to take part in the cultural life).

What? The law can subordinate individual rights to social interests? This is a notion of “commons” on steroids.

As the article notes, “the case raises the question of how far the doctrine of social function of (intellectual) property can be stretched? And with the resort to international human rights treaties to (supposedly) benefit the community over the heirs’ moral rights, how seriously might it undermine the goals of copyright law? Could this decision have any effect on authors’ incentives to create new works?”

Absolutely. And doesn’t this also incentivize artists to destroy any works they would not like published or made accessible to the public before death? At what point does the public, or a judge, have the right to force an artist to speak? Troubling indeed.


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