Published November 11, 2023 | Version 1.0
Book chapter Open

Experimenting with EU Moral Rights Harmonisation and Works of Visual Arts: Dream or Nightmare?

Description

Moral rights have always faced some challenge in copyright law. Some jurisdictions protect them fiercely, others oppose the frailest safeguard to find a compromise with the international mandate. In the EU, moral rights are not harmonised, nor the European legislator has provided any explicit rules for their protection. Even so, the possibility of harmonising moral rights has never been barred and neither have lacked attempts to explore the opportunity of a future harmonisation. The conventional emphasis on the different approaches to moral rights between civil law and common law countries, which has often been brought to justify the reluctance towards harmonisation, is barely acceptable. New attention to moral rights is prompted by the implications of the digital and post-digital revolutions and elicited by copyright exceptions – as the EU case law seems to suggest, whose harmonisation has always been desirable. Nevertheless, harmonisation should not come at all cost, and this is particularly accurate about moral rights. It seems indeed fair to envision a flexible and differentiated approach, which the present study wishes to investigate, exploring a focused application of moral rights to a single area of copyright or subject matter. For this experiment, only works of visual arts will be considered, which the EU legislator has already addressed via the contentious directive 2001/84/CE (droit de suite). The prospective results of such testing are compared with the evidence suggested by the analysis of the peculiar U.S. moral rights coverage under the Visual Artists Rights Act (VARA) during the first thirty years since its enactment. A provocative proposal that however is not the sole solution, as explained throughout the work.

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Dates

Accepted
2023-11-11