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

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

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’)

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:

The language of section 80
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). When a work is destroyed, it cannot be said that there has been an addition or alteration of some sort to the work-the work itself ceases to exist. Therefore on a straightforward and perhaps sensible way of reading section 80, the section cannot cover instances where the work itself is destroyed. One may argue that a ‘purposive construction’ of the statute in accordance with the Berne Convention (hereinafter referred to as ‘Convention’) may yield an interpretation in favour of the right to prevent destruction. After all, section 80 was drafted in order to comply with the obligations spelt out in the Convention. However a closer look at this aspect would reveal quite the opposite.

2. The Berne Convention

The moral rights language of the Convention is wider than the CDPA and includes a right not just against any modification, distortion or mutilation but also against any ‘derogatory action’ that is ‘prejudicial to the honour or reputation’ of the author. One could therefore argue that the term ‘any other derogatory action’ would cover an instance where the work itself is destroyed. This argument however does not stand good ground when one considers the legislative history of the Convention.

Sam Ricketson points out in his classic treatise on the Berne Convention that there was an express rejection of the proposal by the civil law countries to mandate the inclusion of a RPD as one of the moral rights. Rather, in one of the voeux adopted at the end of the Conference, the Convention left it to member countries to provide for such an additional right, if they so desired-a fairly obvious extension of the principle that this international convention was a minimum standards one and did not impact upon a member’s right to articulate higher standards within its won national regime.

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Even otherwise, on a straightforward reading of the Convention, one may have problems inferring such an additional right. For one, assuming that such a right to object could be said to fall within ‘any derogatory action’, it is clear that this by itself would not suffice. One has also to show that the said action is ‘prejudicial to the honour or reputation of the artist’, a phrase that is to be interpreted objectively (Ricketson). Here again, there was an express rejection by common law countries of the proposal that protection should be accorded to any action that violated “moral interests”-finally, as a compromise, the term “prejudicial to honour or reputation” was used. This being an objective term, it is arguable that although an artist may consider the destruction of her work a personal affront, it may nevertheless not cause any loss of reputation or honour in the eyes of the general public, as the work itself ceases to exist. Had the term “moral interests” been used, a term that is a highly subjective one, one could perhaps have argued in favour of reading a RPD into the Convention regime.

Conclusion:

To conclude on the first issue, it is amply clear that the CDPA cannot, by any stretch of imagination be interpreted to include a right to prevent the destruction of an artistic work (RPD).

B. SECOND ISSUE: OUGHT SECTION 80 TO INCLUDE A ‘RPD’

This is a policy question that requires a weighing of several interests and an examination of these interests from various perspectives. For the sake of convenience, I have classified the “interests groups” under three main heads:

Artists
Owners
The Public

Similarly, I have classified the various perspectives under four main heads:

Jurisprudential Perspective
Economic Perspective
Cultural Perspective
Public Health/Safety Perspective

What I propose to do is to take each of these interests groups’ separately and analyse the various perspectives in their context. From amongst the various perspectives, only those perspectives would be discussed that are actually relevant to the concerned interest group.

1. Artists

i) Jurisprudential perspective:

The underlying jurisprudential basis for moral rights (at least in the civil law countries where they first originated, such as France) is said to be the belief that the work of the author is an extension of her personality or as Radojokovic puts it, her “spiritual child” (Ricketson). Consequently, any assault on the work is an affront to the authors’ personality itself. Under this theory, it would be argued that a destruction of the work is the most heinous form of distortion/ assault and would severely impact upon the personality of the author (Dietz). Therefore it is imperative that any moral rights regime incorporate such a right.

ii) Economic Perspective:

In order to increase the saleability of her work, an artist always desires to increase the “association” of her work with the public. What better way to do this than to have a great number of works in the market. Each work presumably serves as an advertisement for the others. 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’’.

ii) Economic Perspective:

From an economic perspective, it makes sense to permit an owner to destroy a painting or sculpture that she doesn’t value anymore. The theory of ‘allocative efficiency’ dictates that in an efficient economy, a ‘good’ (sculpture) would end up in the hands of a person who values it the most. If a buyer determines that the sculpture is not good enough to even be transferred and that it would be too expensive to maintain, then she should be free to destroy it. Better this than have the owner retain the sculpture and watch it wither away. A neglect of this sort would lead at some level to a distortion of the sculpture and cause more harm to the artist’s reputation. Apart from this, such retention would lead, in economic terms to an occupying of extra space and consequently, a not-so optimal allocation of resources.

Were one to counter the propensity of an owner to neglect artwork (that she is duty bound to not destroy) by the imposition of a positive duty to “maintain” the artwork in good condition, this would lead to an additional cost on the owner and further efficiency losses. Besides, such as duty to preserve is better imposed through an independent legislation (such as the California Art Preservation Act, 1980) and not via a moral rights regime-an argument that would be expanded upon later in the context of “public” interest.

Lastly, it is important to remember that in today’s corporate context, most moral rights are waived through contract. This propensity for widespread waivers in fact caused Professor Vaver to argue for only a limited waiver right within a moral rights regime (Vaver, Moral Rights: Yesterday, Today and Tomorrow). Consequently, there may not be much sense in introducing a new right that would be waived anyway. It could be argued that the grant of this new right could in some sense increase the bargaining power of an artist in the corporate context, but one is sceptical of whether this would translate to any substantial bargaining chip in the corporate context.

Also, in the light of the Nintendo experience (Vaver), one has to be cautious of the fact that moral rights may be mis-used by corporates to protect their commercial interests, without in any way, advancing the “moral interests” of the author. Any additional right may be subject to this hijacking by corporate interests.

3. Public Interest

i) Cultural Perspective:

The argument that culture ought to be preserved as best as possible is perhaps the strongest one in favour of the creation of a RPD. Permitting the destruction of works could lead to a serious dent in the corpus of cultural wealth that society possesses. A related argument is that destruction of the original may make it impossible to determine the accuracy of any copies of the work that remain (Ricketson)

No doubt, a compelling argument, it can be subject to serious debate were one to ask ‘Do all artworks merit this sort of protection as they are in some way ‘culturally significant’? As one knows, the threshold for copyright protection, at least under UK law is abysmally low. One will remember Megarry J’s remarks in this context that he would be ‘slow to exclude drawings from copyright’ apart from the case of a ‘straight line drawn with the aid of a ruler’ (British Northrop).

At least with respect to such de minimis works, society may be better off without them-some may perhaps even opine that the state should introduce some sort of incentive for owners to destroy them. As regards the truly wonderful works, the argument that they ought not to be destroyed is certainly a compelling one and is in fact reflected in an American legislation; under the Visual Artists Rights Act (VARA), the moral right of integrity extends to prevent the destruction of works of ‘recognized stature’.

It was such ‘recognized stature’ and ‘cultural significance’ that prompted even the Indian courts to read a RPD into the then Copyright act. In Amar Nath Sehgal (as discussed by Mira Sundarajan in International Journal of Cultural Property), the court injuncted the Government of India from ‘warehousing’ a celebrated sculpture that had till then, adorned the walls of a reputed government building.

The problem of what would amount to a ‘culturally significant’ work is no doubt a complex one. Seen through the eyes of moral rights, this problem could get even more perturbing as most moral rights regimes run parallel with copyright regimes and are, as illustrated earlier, granted to even the most banal artwork. Perhaps preservation of culture is best done through an independent legislation that puts in place a framework for the assessment of the relative merit of each work and decides which ones ought to be preserved.

ii) Public Health / Safety Perspective:

The simple point here is illustrated by Paul Mistral Park Monument case where Roussel’s sculpture had to be removed as it was deteriorating and becoming a threat to public safety (Irini A Stamatoudi’s article in 1997 IPQ). 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:

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.
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.
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.