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4 Int'l Intell. Prop. L. & Pol'y 74-1 (2000)
Commentary: Moral Rights

handle is hein.journals/inteproy4 and id is 913 raw text is: Chapter 74 COMMENTARY: MORAL RIGHTS Alain Strower The moral rights problem is a difficult issue, especially in relation to the coexistence of the two main systems of protection, the Anglo-American copyright system and the European authors' rights system. One of the main criticisms from the U.S. point of view is that moral rights are insufficiently defined in the Legal Acts and not tailored to reality. There has been some sanctification of moral rights, especially in France, so that there is a kind of smokescreen we have to get rid of before we tackle the real issue, which is an important one. I will try to make five comments. The first one is a policy consideration. We all know that it is a very touchy topic, and one should not underestimate the emotional aspect in relation to moral rights in certain countries. So if there have to be some developments at the international level or at the EU level in the direction of some kind of harmonization, one should first think thoroughly about the strategy of negotiation to be adopted. A very broad consensus building platform should be set up. It is quite important to have all parties involved from the beginning. The right momentum also has also to be chosen, and there should be good articulation between the developments at the international level and at the EU level, for instance. That is an obvious remark, but I think it is quite important for this delicate topic. Second remark. The moral rights problem is also a drafting problem. I have the feeling that the difficulty is not so much to reach an agreement on the issue, than to find a way of drafting that could fit with the different legal traditions. There are a lot of differences between the way rules are drafted in civil law countries and common law countries. So how to draft? Well, I think moral rights should be formulated in broad terms with a broad coverage. It is the best way to proceed, but that is not enough. There has to be certain limits. Two kinds of limits can be thought of. One would be to include some misuse provision in the law, some specific misuse provision in the case of moral rights, so not only the general principle of abuse of rights, which exists in countries like France and Belgium. The exact determination of this limit could make the broad formulation of the moral rights acceptable to Anglo-American lawyers. A second possible limit that could be drafted into law would be some kind of codification of the balance of interests involved in moral rights infringement cases. * Facutis universitaries Saint-Louis, Nauta Dutilh, Brussel. This commentary was presented at the Seventh Annual Conference on International Intellectual Property Law and Policy held at the Fordham University School of Law between April 8-9, 1999. 74-1

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