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Does Section 80 of the Copyright and Designs Act (1988) prevent the destruction of an artistic work? Ought it to do so?

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Does Section 80 of the Copyright and Designs Act (1988) prevent the destruction of an artistic work? Ought it to do so? (1997 question paper) SUMMARY: I will argue that A. S.80 of the Copyright and Designs Act (CDPA), in its current form does not include a right to prevent the destruction of an artistic work (hereinafter abbreviated to 'RPD') B. Section 80 ought not to include this right. A policy analysis i.e. a weighing up of various interests in this context would seem to suggest that the CDPA is better off without such a right. A. FIRST ISSUE: SECTION 80 OF THE CDPA In order to determine whether the CDPA prevents the destruction of a work, one would have to look into: 1. The language of section 80 2. The Berne Convention -a convention that mandates the introduction of moral rights provisions in the legal regimes of the member states. 1. The Language of Section 80 Section 80 stipulates that an author may object to the derogatory treatment of her work. The section then goes on to define treatment as 'any addition, alteration or modification'. Unless something amounts to a 'treatment' in the first place, one cannot go into the question of whether such treatment is derogatory in the fist place (Cornish). ...read more.


Consequently, the destruction of even one work would lead to a reduction in this 'association". The above argument could be made to turn on its head when one questions the very premise that increased association leads to more revenues for the artist. There are those who argue that an artist is better off with her works being "scarce" in the market-this scarcity leads to an increase in the value of the artists works (Hansmann and Santilli). Consequently, an artist may be better off if her works are destroyed and become more "scarce". 2. Owners i) Jurisprudential Perspective: From the owner's perspective, the biggest drawback of introducing a RPD is the fact that it interferes with her property right i.e. a person who purchases a painting should be free to deal with it as she chooses. Secondly, it could be argued that by destroying a work, there is no harm to reputation as the work itself ceases to exist. A view supported by the Canadian court in Gnass, where sculptors' were denied the right to prevent the 'river-dumping' of their 'vandal struck' sculptures by the local town cleaning authority. To reiterate Professor Vaver's apt comments in the context of this case -'the artists' reputation could hardly suffer from works that were out of sight and out of mind''. ...read more.


No doubt, these would be rare instances but serves to illustrate that a wide unfettered right to prevent destruction (RPD) may not be appropriate. Conclusion: Weighing up the arguments above, the following conclusions emerge: 1. Viewed from a jurisprudential perspective, it is debatable as to whether the destruction of an artistic work can be harmful to the reputation of the artist. Indeed in the context of the UK's moral rights regime, which reflects a strong "economics based approach (much like its copyright regime) and provides a mere watered down version of the Berne provisions, it is clearly persuasive to argue that such an additional right would not fit in well. 2. Viewed from an economic perspective, this additional right may lead to a non-optimal allocation of resources. Even from the artist's standpoint, it could be argued that destruction would lead to scarcity and scarcity could convert to increased revenues. 3. Viewed from a cultural perspective, we are better off protecting such works through a separate legislative framework that would be able to better decide as to which of these works are "culturally significant" and deserve to be preserved. In the light of the above and more specifically in the context of Bentham's mantra for law making i.e. laws should reflect the 'greatest good of greatest number', I would argue against the adoption of this right into the CDPA. ...read more.

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