Copyright and Creative Freedom: A Study of Post-Socialist Law Reform (Routledge Studies in International Law)

Copyright and Creative Freedom

Over the past decade, intellectual property rights have become intensely controversial. Once an esoteric legal specialty, conflicts among the various interests involved have brought intellectual property law under unprecedented public scrutiny. Observers of the international scene are increasingly concerned that intellectual property rights, rather than facilitating the expression of human creativity, may actually act to suppress it. Concerns about the status of creativity and free expression have sparked active anti-copyright movements in the world’s most technologically advanced countries, and protests in the developing world against the imposition of excessive and inappropriate intellectual property standards. What are lacking, however, are clear policy directions for the future – ideas that can help us to overcome the negative effects of intellectual property regulation and protect the future of human creativity. This book is a pioneering study that attempts to address the plight of creativity in the Digital Age by offering a new way of looking at intellectual property. It argues that we must recognize the crucial importance of human creativity in our technological society, and suggests copyright law should work with free speech principles for the greater goal of creative and cultural development on a global scale. In support of this approach, the book proposes a new model of copyright as a counterweight to the commercial model that dominates the international community: copyright as a human rights concern. The book features in-depth analyses of the international copyright regime, including critical interpretations of the TRIPs Agreement and the WIPO Internet Treaties. It also offers a specific case study of copyright reform driven by the globalization of copyright standards – that of post-socialist countries who confront a legacy of cultural oppression and face the challenge of reawakening the creative potential of their people. As an example of the mammoth challenges of postsocialist reform, the book offers a unique English-language assessment of copyright law in the Russian Federation. It includes extensive historical documentation and comprehensive analysis of Russian copyright law, with reference to current legislation, jurisprudence and case law, and considers ongoing proposals for a new approach to intellectual property in Russia’s draft Civil Code. Mira T. Sundara Rajan is the Canada Research Chair in Intellectual Property Law at the University of British Columbia in Vancouver, where she plans to establish Canada’s first interdisciplinary center for the study of intellectual property rights.

Routledge studies in international law

1 International Law in the Post-Cold War World Essays in memory of Li Haopei Edited by Sienho Yee and Wang Tieya 2 The Break-Up of Yugoslavia and International Law Peter Radan 3 International Human Rights, Decolonisation, Globalisation Becoming human Shelley Wright 4 Global Governance, Economy and Law Waiting for justice Errol Mendes and Ozay Mehmet 5 Law of the Sea in East Asia Issues and prospects Zou Keyuan 6 Copyright and Creative Freedom A study of post-socialist law reform Mira T. Sundara Rajan

Copyright and Creative Freedom A study of post-socialist law reform

Mira T. Sundara Rajan

First published 2006 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 270 Madison Ave, New York, NY 10016 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2006 Mira T. Sundara Rajan This edition published in the Taylor & Francis e-Library, 2006. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data A catalog record for this book has been requested ISBN10: 0-415-70207-0 (hbk) ISBN10: 0-203-96776-3 (ebk) ISBN13: 978-0-415-70207-2 (hbk) ISBN13: 978-0-203-96776-8 (ebk)

This book is dedicated to my teacher Professor David Vaver who taught me for my LLB at Osgoode Hall Law School, and thought it worthwhile to teach me again for my DPhil at Oxford.

Poets are the unacknowledged legislators of the world. P.B. Shelley It is not awful to be struck dead by bullets, It is not bitter to be left without shelter – We will preserve you, Russian speech, Great Russian word. We will bear you free and pure Bequeath you to our grandchildren, and forever save you from captivity. Anna Akhmatova [B]efore [the] Revolution, Russian poetry was a kind of spiritual government of [the] . . . people . . . [T]he metaphorical language of poetry was [our] only way to express our nostalgie for freedom. That’s why Russian people traditionally respect [. . .] poetry. . . . When Stalin died, the political stage, . . . [the] social stage, was completely empty; we didn’t have any kind of dissidents’ movement because all potential dissidents . . . were in concentration camps or already killed. . . . So we young poets, [the] new generation, we were [the] only free voices [at] . . . that moment . . . [T]hat’s why people sink their own unrealized hopes in our poetry. That’s why, in Gorbachev’s parliament we had so many writers, because our poetry was a cradle of glasnost, and glasnost was a cradle of our democracy. Our democracy is still very childish, undemocratic; it’s probably inevitable because we don’t know what to do with freedom. I don’t think that in the rest of humanity people know what to do with . . . freedom [either]. Yevgeny Yevtushenko

Contents

Acknowledgments Note on the structure of Soviet law Journal abbreviations

1

x xii xiii

Introduction

1

Copyright: the legal face of globalization

7

From Berne to TRIPs: a new idea of copyright 11 Copyright reform: change as constant 13 TRIPs and the “developing” world: developing and transitional countries 15 From the regional to the international: Europe and the resurgence of WIPO 16 Conclusion: the international framework for copyright protection 24 2

Copyright and freedom in the “Digital Age”

26

The challenges of new technology 27 Copyright and freedom 30 Moral rights: the future of copyright law? 40 Conclusion 45 3

Copyright law in transition Intellectual property after socialism 49 Copyright law in transitional countries 51 Approaches to reform: a critique 53 The dimensions of reform: three perspectives 60 Conclusion 71

47

viii Contents 4

Copyright and tyranny: the foundations of socialist copyright law

72

The pre-revolutionary development of copyright 73 Russian theories of copyright 75 An early role for moral rights 77 Copyright and moral rights in Russian legislation and practice 79 Tsarist Russia and international copyright 85 Conclusion: the status of copyright before the Revolution 87 5

Revolution and reform: the transformation of copyright under Communism

89

A shift in cultural policy: Bolshevik radicalism and authors’ rights 90 The ghosts of the past: Soviet theories of copyright 93 Soviet copyright reform: from radicalism to cynicism 97 The Soviet Union and international protection of copyright 100 The status of authors’ rights in the Soviet Union 109 Conclusion 120 6

Creative freedom on trial: the Siniavski–Daniel case

123

The trial 124 The veiled focus of prosecution and defense – not propaganda, but authorship 133 Moral rights and the prosecution of Siniavski and Daniel 136 Moral rights and the conduct of Siniavski and Daniel 140 Moral rights: a droit de créer 144 Conclusion 148 7

Copyright and the breakdown of Communism

150

Perestroika and legal change 152 Russian copyright reform 155 Current copyright law in Russia 169 Conclusion 183 8

The future of post-Communist copyright: a special role for moral rights The civil code project 188 Copyright and moral rights in the Draft Civil Code 190

187

Contents ix Continuing improvements to moral rights in Russia 195 Judicial interpretation of moral rights 198 Conclusion: the case for an expansive model of moral rights 203 9

Copyright and human rights: the post-Communist experience and a new international model

205

Intellectual property and human rights 210 Copyright in international human rights law 214 Moral rights and human rights 218 Moral rights and culture 225 Moral rights and creative freedom 228 The true politics of moral rights 231 Conclusion 233 Conclusion: copyright and culture in transition

234

What is copyright? 234 Appendix 1: Russian copyright timeline Appendix 2: table of statutes Notes Select bibliography Index

243 245 248 324 343

Acknowledgments

From the time I first began to think about this project, in Oxford in 1999, the work has consistently been a source of passion and excitement. I hope this will be felt and enjoyed by the readers to whom it is now offered in the form of a book. The joy of the work has been partially due to the nature of the subject-matter, combining the astonishing challenges of copyright in the “Digital Age” and Russian law. More importantly, it is a product of my fortunate contact with some extraordinary people. Without them, the project could not have become a reality. The manuscript has benefited from the attention of two great minds in intellectual property law: Professors David Vaver and Colin Tapper, both of Oxford University. I am deeply indebted to Professor Vaver, my DPhil supervisor, without whose encouragement and enthusiasm I might never have ventured into Russian territory. Professor Tapper read and offered his comments on a draft of the manuscript. His contribution is not easily quantified: the extraordinary quality of his mind and attention transformed my own understanding of both law and literature. His dedication to intellectual life must inspire all those who are privileged to work with him, and as such, he is a true “Oxonian.” The authentic exploration of Russian law and legal history attempted in this book would not have been possible without the generous assistance of Russian legal experts. My gratitude to Rob Macdonald of Gowlings, Ottawa, who gave me the opportunity to work in Russia, and Marina Drel, Head of the Litigation Department of Gowlings International, Moscow, and her assistants, who provided invaluable help and advice on the practice of Russian law. Justice Vitriansky, Vice-Justice-in-Chair of the Moscow Supreme Arbitrazh Court, kindly agreed to be interviewed for the project, as did Mr Gainan Avilov of the Private Law Research Center, Government of the Russian Federation, Moscow. Dr Oxana Kozyr, also at the Private Law Research Center and author of Russia’s draft Civil Code provisions on copyright, provided invaluable information on the current status of the Civil Code proposals. My deepest thanks to Alexandre Kokcharov of the Department of Geography, Oxford University, and “Expert” Magazine, Moscow, and to Elvira

Acknowledgments xi Akhunova of the University of British Columbia Law School (Class of 2006). These two young Russian-speakers helped me to grasp the essence of Russian-language copyright statutes. Elvira’s appearance in my advanced seminar on intellectual property rights at UBC was completely unexpected; she brought, not only competence, but also, devotion and generosity to her involvement in the project far beyond what was required of a research assistant. Committed and capable research assistance in the final preparation of the manuscript was also provided by Dana Hooker (UBC Law, Class of 2006). The manuscript enjoyed the special benefit of a reading by an experienced professor of English, P.K. Sundara Rajan, to whom I am indebted. A number of the world’s great law libraries provided resources for this work, and the research was greatly facilitated by the extraordinary kindness of their librarians. I would especially like to express my gratitude to the librarians at the Law Libraries of McGill University and the University of British Columbia in Canada; Dr J.W.M. Bakker and her colleagues at Leiden University in the Netherlands, with its excellent collection of Russian and East European materials; and the Bodleian Law Library in Oxford. This work is especially offered to those involved in law reform, in any country. Despite the unavoidable shortcomings due to my own limitations, I hope it will be of some use to them.

Note on the structure of Soviet law

In the Soviet legal system, the Fundamentals of Civil Legislation, osnovy, provided a legislative framework for the individual republics constituting the Soviet Union. Each republic was required by law to implement in its law the provisions of the Fundamentals. For example, the copyright provisions of the 1961 Soviet Fundamentals of Civil Legislation were incorporated into the law of the Russian republic (RSFSR) in the Civil Code of 1964. The copyright provisions of the Fundamentals and the Russian copyright law are virtually identical. However, certain differences may arise; for example, in the 1961 Fundamentals, it was left to the republics to determine the duration of copyright beyond the author’s lifetime, specified in Article 496 of the Russian legislation as 25 years.

Journal abbreviations

AJCL AJIL Aus IP J Boston U Intl LJ Brandeis LJ Brigham Young U L Rev Buffalo L Rev Bull Copyrt Socy USA Can IP Rev Cardozo A and Ent LJ Cardozo J Intl and Comp L Chi-Kent J IP Chi-Kent L Rev Colum Hum Rts L Rev Col J Eur Colum J L and Arts Colum L Rev Colum-VLA J L and Arts Cornell Intl LJ Denv J Intl L and Poly Duke J Comp and Intl L Duke L and Tech Rev Duke LJ E Eur Const Rev EIPR Emory LJ

American Journal of Comparative Law American Journal of International Law Australian Intellectual Property Journal Boston University International Law Journal Brandeis Law Journal Brigham Young University Law Review Buffalo Law Review Bulletin of the Copyright Society of the USA Canadian Intellectual Property Review Cardozo Arts and Entertainment Law Journal Cardozo Journal of International and Comparative Law Chicago-Kent Journal of Intellectual Property Chicago-Kent Law Review Columbia Human Rights Law Review Columbia Journal of European Law Columbia Journal of Law and the Arts Columbia Law Review Columbia-VLA Journal of Law and the Arts Cornell International Law Journal Denver Journal of International Law and Policy Duke Journal of Comparative and International Law Duke Law and Technology Review Duke Law Journal East European Constitutional Review European Intellectual Property Review Emory Law Journal

xiv Journal abbreviations Ent Law Rev Eur Hum Rts LR Eur Hum Rts Rep Far Eastern Econ Rev Fla J Intl L Fordham IP, Media and Ent LJ Ga L Rev Harv Intl LJ Harv L Rev Hastings Comm and Ent LJ Hastings LJ ICLQ IIC IJLIT Ind J Global Legal Stud Intl J Cult Prop Intl J Legal Info Intl Rev L, Comp and Tech IPJ IPQ J Copyrt Socy USA J Env L and Lit JIPL J L and Comm J Legal Stud John Marshall J Comp and Info L J Media L and Prac J Proprietary Rts J Socy Comp Leg J World Intellectual Property J World Trade L and Contemp Probs L and Poly in Intl Bus Loyola LA Ent LJ

Entertainment Law Review European Human Rights Law Review European Human Rights Reports Far Eastern Economic Review Florida Journal of International Law Fordham Intellectual Property, Media and Entertainment Law Journal Georgia Law Review Harvard International Law Journal Harvard Law Review Hastings Communication and Entertainment Law Journal Hastings Law Journal International and Comparative Law Quarterly International Review of Intellectual Property and Competition Law International Journal of Law and Information Technology Indiana Journal of Global Legal Studies International Journal of Cultural Property International Journal of Legal Information International Review of Law, Computers and Technology Intellectual Property Journal Intellectual Property Quarterly Journal of the Copyright Society of the USA Journal of Environmental Law and Literature Journal of Intellectual Property Law Journal of Law and Commerce Journal of Legal Studies John Marshall Journal of Computer and Information Law Journal of Media Law and Practice Journal of Proprietary Rights Journal of Society of Comparative Legislation Journal of World Intellectual Property Journal of World Trade Law and Contemporary Problems Law and Policy in International Business Loyola of Los Angeles Entertainment Law Journal

Journal abbreviationse xv Mich J Intl L Mod L Rev NY Intl L Rev NYU J Intl L and Poly OIPRC Pac Rim L and Poly J Rev Cent and E Eur L Rev Soct L RIDA Sing J Leg Stud, SJLS Stan L Rev St John’s J Leg Comment Syracuse L Rev Temple L Rev Touro Intl L Rev Tulane J Intl and Comp L Tul L Rev UC Davis J Intl L and Poly UCLA L Rev U Pa J Intl Econ L U Pa L Rev Vand J Transnatl L Vand L Rev Va J Intl L Yale LJ

Michigan Journal of International Law Modern Law Review New York International Law Review New York University Journal of International Law and Policy Oxford Intellectual Property Research Centre Pacific Rim Law and Policy Journal Review of Central and East European Law Review of Socialist Law Revue internationale du droit d’auteur [International Copyright Review] Singapore Journal of Legal Studies Stanford Law Review St John’s Journal of Legal Commentary Syracuse Law Review Temple Law Review Touro International Law Review Tulane Journal of International and Comparative Law Tulane Law Review UC Davis Journal of International Law and Policy UCLA Law Review University of Pennsylvania Journal of International Economic Law University of Pennsylvania Law Review Vanderbilt Journal of Transnational Law Vanderbilt Law Review Virginia Journal of International Law Yale Law Journal

Introduction

The relationship between copyright and free expression has always been one of tension. Copyright began as a tool of censorship: though it later became an independent branch of law, it has never quite overcome its awkward early associations. They have taken on different forms as times have changed – the metamorphosis of state censorship into private control – but the fundamental quality of the conflict remains the same. In our present “Digital Age,” this tension has reached a new intensity. Few aspects of the law affect as wide and diverse a range of individuals, countries, industries, and interests as copyright. The effectiveness of copyright has always depended on the ability to find an effective balance among the various social forces in play. Yet it now appears that there is little common ground among the actors involved in copyright issues, and many observers have warned us that – for better or for worse – the “death of copyright law” may be imminent. This book is concerned with the future of copyright: its legal viability, its moral credibility, and its potential usefulness to societies, as all modern societies are, in transition. It has three objectives. First, it seeks to discover at least some of the fundamental causes of the present-day conflict between copyright and free speech: it argues that technological change, and the transformation of culture on a global scale which it has initiated, is truly at the heart of the problem. Second, due to their intrinsic limitations, it argues that prevailing legal models may not be effective in finding a way forward. Third, this book attempts to investigate the relationship between copyright and freedom from an, as yet, untried perspective – that of countries where, in contrast to the advanced common-law countries who have assumed leadership in the international copyright arena, the struggle to achieve freedom as a way of life continues.1 How do accepted beliefs about the nature of copyright and its relationship with free expression appear in the light of a different cultural experience? This is an important question. Despite the intensity of controversy surrounding copyright law – whether in the world’s most technologically advanced societies, or in the international arena at large – accepted approaches to copyright seem unable to cope with the magnitude of the

2

Introduction

problem. At the same time, intellectual property rights, including copyright, are increasingly seen to be implicated in issues of social justice and human rights. The conflict between copyright and human rights is not restricted to developed countries, but ultimately assumes its true proportions in the context of persistent inequality between advanced countries and the developing world. The idea of discovering new ways of thinking about the law drawn from the experience of jurisdictions that are, at least from the perspective of copyright, less developed, is one that tends to elicit instinctive resistance in an international community dominated by the attitudes of economically powerful countries. Inevitably, the United States, as the birthplace of the Digital Age, is first among these equals. Why, the argument goes, would we look for lessons on copyright to countries that do not have traditions of copyright law as we know it? Why seek insights from countries where copyright is not well protected? At first glance, these objections might seem well founded; a closer look suggests that they could be dangerous. The perspective is one which Ugo Mattei, an Italian-born comparative law scholar based in the United States, characterizes, harshly but effectively, as “legal imperialism.”2 Copyright is not only problematic in less-developed jurisdictions; rather, it is controversial in even the most advanced jurisdictions, and with time, it tends to become more, rather than less, difficult. At the same time, conventional solutions to the problems presented by copyright are increasingly elusive, for “developed” and “developing” societies alike. There is something deeply ironic about the search for solutions to copyright problems exclusively in, or through, the Anglo-American tradition. Copyright has become a global concern; it is deeply implicated in social transformation, not only in technologically advanced countries, but, in different ways, throughout the world. How, then, can anything short of a global exploration provide solutions to current problems, or guidance for an uncertain future? The purpose of this book is not to argue that developing countries know more about copyright law than the industrialized world, or to suggest that advanced countries should necessarily want to adopt approaches to copyright from the developing world. Rather, the discussion initiated here aims to achieve something subtler, yet much more comprehensive. It considers lessdeveloped countries as jurisdictions in flux – countries where reform has perhaps become the only true constant of copyright law and practice, and where the abrasion between domestic and international pressures defines the shape of legal transformation. A well-worn cliché reminds us that it is an offending grain of sand in the oyster’s shell that ultimately leads to the creation of a pearl. What, then, is to be learned from the experience of copyright reform? What is to be gained from the abrasion – and perhaps confrontation – between established cultural practices and new kinds of law? At what point should the “export” of model copyright laws from Western

Introduction

3

countries become a wide-ranging dialogue on a concept of copyright for our technological age? In this inquiry, intellectual property lawyers would do well to consider the insights of comparative lawyer Sir Otto Kahn-Freund, who comments both on the identity of law with culture, and on the desirability of constructing law reform on the solid foundation of true engagement between the legal cultures involved.3 Indeed, once we understand and accept the indivisibility of law and culture, the traditional categories of “developed” and “developing” lose some of their fascination. It is interesting to note that the conceptual difficulties confronting modern copyright law are not always mirrored in the ways of thinking of non-traditional copyright jurisdictions. Oddly enough, modern technology finds strange and interesting parallels in ancient cultures and non-Western traditions.4 For Western thinkers, the idea of a new equality between authors and their public, made possible through digital technology, may be disquieting; for Indians, it is the well-known concept of the individual as rasika, the person who is capable of reliving the experience of the artist in his or her own enjoyment of the work.5 In the search for alternative approaches to copyright law, the copyright lawyer confronts a wealth of experience from throughout the international community. The developing world, as a whole, offers a different perspective on copyright; within it, countries and regions as diverse as India, China, and Africa, each have their own difficulties, traditions, and proposals for reform. It should therefore be emphasized that this book chooses to examine the nature of copyright in the Digital Age through only one of many possible lenses. However, in the light of late twentieth-century history, the perspective considered here may be an especially interesting one. This book takes a particular interest in the situation of post-socialist countries – societies that are currently in the midst of a transformation, a liberation from cultural oppression and isolation, and a movement towards a new potential for openness and development. This historic and all-pervasive phenomenon has come to be known, rather prosaically, as the “Transition.” What can the international copyright community learn from the difficult experience of copyright reform in post-socialist countries? And how, in its turn, can the international copyright regime respond better, not only to the special concerns of the post-socialist world, but more generally, to the global conflict between copyright law and the joy of free expression? Conceptually, this study is divided into two parts. The first describes the international framework for copyright with particular attention to its relationship with free expression; the second goes on to consider the development of this conflict through the experience of law reform in a case-study country, Russia. The concluding chapter sets out some of the principles to be drawn from the Russian experience of reform, and their relevance for the international community. In doing so, the book proposes a starting-point for a “new model” of copyright that emphasizes its complementary relationship with human rights, particularly those of the intellectual order.

4

Introduction

Among post-socialist countries, Russia had particular appeal for a case study in the context of the larger themes that concern this book. Although it is by far the largest and most powerful of the formerly socialist countries, Russia’s experience of transition has been particularly difficult.6 There are a number of reasons behind post-socialist instability in the Russian Federation. Russia was the center of an empire which began to disintegrate with the fall of the Berlin Wall in 1989, and which continues to undergo the process of dissolution in the form of a bitter, ongoing war of independence in Chechnya. The collapse of the Soviet Union not only created uncertainties about the relationship between Russia and the Republics, but it also generated a power vacuum within Russia itself, which many groups, from former Communists to Mafia chiefs, have subsequently tried to fill. In psychological terms, Russia was also the country where Eastern European socialism originated, and where the concept of socialist society extended its most penetrating roots. As the heartland of socialism in Eastern Europe, Russia after the fall of the Soviet Union has had to come to terms with the consequences of its historic leadership, and to face its proportionately greater share of responsibility for the troubled post-war history of the region. The similarities between Russia and other countries of the region lend great interest to a study of Russian law reform for other regional initiatives. Central and East European countries share a common legacy of socialist government and socialist law with Russia. Their post-war legal systems reflect the framework of Russian law under the Communists, and as such, Russian law is an important strand in the texture of their legal fabric. Many Eastern European countries also share a Slavic culture with Russia. These considerations are among the reasons why a study of Russian legal developments will be relevant and important throughout Central and Eastern Europe. Russia’s particularly problematic experience of transition and legal reform also means that problems connected more generally with the process of law reform can be examined in detail through a study of the Russian example. These lessons about reform will be of particular interest to developing countries in other parts of the world who are themselves engaged in intensive law reform as a result of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) and the exigencies of the new international intellectual property regime. The book is laid out as follows. Chapter 1 sets the scene of the conflict between copyright and free expression; it identifies and analyzes the foundations of the international copyright system, the context informing all attempts at reform of national copyright laws. Chapter 2 examines the reasons why the conflict has intensified in recent years; it analyzes the technological and cultural factors at work, and argues that they are embodied in the international copyright system. Chapter 3 considers the problems of copyright reform in this cultural and regulatory environment; it argues for the importance of bringing a greater breadth of perspective to reform,

Introduction

5

and suggests that this should be drawn from historical and comparative experience. Chapters 4, 5, and 6 introduce Russia, an example of post-Communist transformation, and are respectively concerned with the status of authors’ rights during the Tsarist and Communist periods. These chapters develop two common themes. The first has to do with the nature of copyright reform itself: a historical study shows that reform in Russia occurred in cycles. These cyclical patterns are now recurring in the context of modernizing Russian copyright law, and the failure to address them is probably responsible for some of the fundamental failures of reform. The second involves the substantive development of copyright. The political realities of Tsarist and Communist Russia defined the context of Russian copyright, and led to the development of certain substantive and symbolic associations that have shaped the Russian conception of the law. The Russian experience presents an interesting contrast to the experience of common-law countries, and of the West more generally; it shows a gradual divergence between censorship and copyright, until the idea of authors’ rights came to represent the status of free speech, more generally, in Russian society. Chapter 6 presents the culmination of this idea in the trial of Andrei Siniavksi and Yuli Daniel, two writers who faced criminal prosecution by the Soviet state for their creative work. The model stands in stark contrast to the increasingly extreme and repressive understanding of copyright in the West, and may be illuminating from the perspective of international malaise about copyright’s future. Chapters 7 and 8 consider the progress of law reform since the fall of Communism. In particular, how are Russian reformers responding to the lessons about copyright drawn from the experience of cultural oppression? The interest of reformers in this difficult legacy, and their attempts to address it in law reform, are clear. However, their focus is diverted by the pressures of membership in the international trade regime, which now entails requirements in the area of intellectual property law. This apparent conflict between international and domestic requirements is, as these chapters argue, an important reason for the apparent ineffectiveness of copyright modernization in Russia. Chapter 9 examines in some detail possible alternatives to the current pattern of post-Communist law reform. In particular, it considers the overlapping interests of freedom of expression in post-Communist society and the aspect of copyright law known as the “moral right” of the author. Moral rights seek to protect the non-commercial interests of creators in their work; relative to other aspects of copyright, they are at once more controversial and more widely recognized. This chapter argues that an emphasis on moral rights may help, not only to redirect copyright reform in lessdeveloped jurisdictions, but also, to re-establish a balance among the different interests implicated in copyright on the international stage. In particular, moral rights may help to build a new alternative to copyright for the Digital Age.

6

Introduction

This book seeks to present to the reader historical, conceptual, and practical arguments that address the increasingly problematic relationship between copyright and freedom of expression. In contrast to the prevailing view, which emphasizes the potential for conflict between intellectual property rights and humanitarian interests, the purpose of this discussion is to build support for a vision of copyright law that is essentially informed by human rights. Experienced observers of the copyright scene will be quick to recognize that the interest of a human rights approach is not limited to “transitional” countries. Rather, this approach to copyright is strongly relevant to current copyright problems in many parts of the world, including the most technologically and economically advanced countries. It may be especially valuable in offering a new way of thinking about copyright, and new legal concepts, to a jaded international community, where tensions among the different interests implicated in copyright law – including, above all, the general public – have proven stubbornly resistant to resolution. A human rights model presents a much-needed alternative to the commercial logic of modern, trade-based copyright. The crucial importance of a human rights perspective on copyright, and in relation to intellectual property rights more generally, is twofold. On the one hand, it is essential for the protection of human rights from the potentially negative impact of inappropriate and excessive intellectual property standards. On the other hand, only by understanding copyright law in the broader context of human rights issues can copyright’s own future be assured. Some observers of the copyright scene seem to believe that modern societies would be better off without copyright. The study in this book is reluctant to discard copyright outright. Instead, it chooses to explore the possibility that the knowledge embedded in copyright law – knowledge that reflects the development of culture, rights, and politics through the modern era – can continue to be useful. At a time when culture is in the midst of its own transformation, the concepts and policies underlying copyright may help us better to comprehend and shape our own future as creative beings.7

1

Copyright The legal face of globalization

Globalization is an ugly word; but the phenomenon that it describes is deeply interesting, and, in some ways, imbued with a startling beauty. Globalization arouses passions: those who have written on it, whether for popular or scholarly audiences, have taken strong views, ranging from economist Jagdish Bhagwati’s belief in its capacity to alleviate poverty, to activist Naomi Klein’s polemic against intellectual property rights.1 While it seems fraught with dangers and potential evils, it has also brought people and cultures closer together, physically and spiritually, than ever before, and breathed new life into our vision of ourselves as “citizens of the world.”2 Major interests, whether governments or corporations, hunger after globalization’s promised wealth; individuals and communities who are interested in globalization for different kinds of reasons have been quieter in their engagement, and indeed, have yet to realize the awesome potential for creative expansion inherent in modern technology. It seems common knowledge what globalization is, yet the term has proven virtually impossible to define. It is possible, however, to make at least two noteworthy observations about this phenomenon. First, globalization is fundamentally about technology: information and communications technology, in particular, have sparked the ongoing revolution known as the “Digital Age,” and are the means behind the realization of global rapprochement.3 Second, if the phenomenon was initiated by technological change, its social implications are vast, extending far beyond the technological realm. Above all, globalization represents a multifaceted reality: its effects permeate society, in the economic, cultural, and even political spheres. Notwithstanding its traditional insularity – largely a product of its dependence on enforcement within national borders – even the law cannot claim to be exempt from globalization. Many areas of both private and public regulation that formerly existed in relative isolation are increasingly subject to international practices and standardization. However, globalization of the law only begins with the international harmonization of legal rules: at a deeper level, it signifies an utterly new way of thinking about the law. Legal globalization represents a new role for the law in social change, a new relationship among different aspects of the law, and new approaches to

8

Copyright: the legal face of globalization

the structure of the law. In H.L.A. Hart’s celebrated phrase, globalization arguably means an entirely new “concept of law.”4 Globalization in the legal field has been pioneered by copyright. This arcane and technical specialization seems an unlikely candidate to lead a revolution in legal concepts. However, it is fair to say that copyright has come to be identified more closely with globalization than any other aspect of the law. Copyright has become the legal face of globalization – its true legal counterpart. There are many reasons for the newfound prominence and prestige of copyright in the Digital Age. In particular, the reasons for its importance lie in the intimate relationship between copyright law and technological change. Copyright has its genesis in technological development – before the invention of printing, there was no need for the concept of authorized reproduction that is the essence of copyright rules, as mere theft was sufficient.5 It is also interesting to note that the technological necessity for copyright, then as now, was matched by a political need: copyright assisted the sovereign to control the appearance of the flow of published material in the kingdom. Colin Tapper draws attention to this parallel between ancient and modern in the context of common-law copyright: [T]he invention of printing coincided, by no means coincidentally, with the bitter religious and political disputes of the Reformation and the emergence of the nation state, so control was needed to prevent use of the press by potential subversives. . . . However the apparatus of government was still in its infancy, and the very flood of measures designed to quell abuse demonstrates the ineffectiveness of these controls. In an eery precursor of modern attitudes the public sector involved the private so as to achieve its objectives.6 In the Digital Age, copyright has become instrumental in securing economic returns to the creators of new technologies. With the benefit of hindsight, the present-day observer might well believe that copyright’s rise to power was inevitable, but he or she would be mistaken. Copyright is an important means of regulating intellectual creation in modern societies, but the central role which it now occupies is the product of a definite process of evolution. It is also worth noting that its prominence was, in no small measure, a direct result of policy choices emanating from the world’s technologically advanced countries. The new status of copyright presents great challenges to human freedom – freedom of speech, freedom of creative expression, and even, free thought. In the technological era, copyright has become highly controversial, and it now appears that a new approach to copyright is needed. Indeed, copyright law since the 1990s has been caught up in a process of change that rivals an earlier era of fundamental transformation that culminated in the conclusion of the Berne Convention for the Protection of Literary and Artistic Works in 1886.7

Copyright: the legal face of globalization 9 Appropriately, the new approach to international copyright is reflected in a new treaty on intellectual property rights, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) which is a founding instrument of the World Trade Organization (WTO).8 The creation of the WTO and the adoption of the TRIPs Agreement have fundamentally transformed perceptions of intellectual property law – its structure, aims, and social significance – throughout the world. In contrast to the Berne Convention, however, the main thrust of the TRIPs Agreement is not to create new copyright norms. Rather, it changes the context of copyright, by bringing intellectual property into the broader framework of the general regime for international trade. This structural change means that signatories of the TRIPs Agreement may bring disputes about copyright before the general dispute-settlement mechanism of the WTO, which is empowered to impose economic penalties on non-conforming states. This new power of “enforcing” intellectual property rights represents a major innovation of the WTO system, and creates a revolutionary new framework for copyright law.9 Copyright regulation in the Digital Age needs to confront issues of freedom directly, and help to ease the process of transition from a primarily industrial society to one that is dominated by technology. However, the development of international copyright law has not defused this troubling conflict. Instead, the international approach to copyright has actually worsened the problem, bringing a new intensity to the confrontation between freedom of expression and the global improvement of copyright standards. The international copyright system presents two fundamental challenges to free speech in the Digital Age. The first of these occurs through the global framework for copyright itself. The new international copyright regime has been controversial from the start, and it is increasingly perceived to threaten free speech. Freedom of speech is not only at risk in the international community at large; by an interesting irony, the technologically advanced countries which were largely responsible for the development of the new regime are also affected. The second problem is a subtle one, but its implications are disturbing. The new structure of the international copyright regime signifies a fundamental shift in the nature of copyright. In particular, traditional concepts underlying copyright protection, like those of authorship and the public domain, are in the midst of a transformation. However, the changing concept of copyright does not reflect a new wealth of ideas about copyright and its underlying principles in the Digital Age. Rather, the field of ideas supporting copyright policy is rapidly narrowing. The era of globalization therefore appears to be one in which copyright law is threatened with great conceptual impoverishment. Copyright law has always been anchored in social ideals, and modern copyright is rooted in models of culture and creativity that represent the ideals of the society from which they come. For example, in a pioneering

10 Copyright: the legal face of globalization study, Martha Woodmansee traces the origin of authors’ “moral,” or personal, rights to the Romantic ideal of the creative author as an original genius.10 In the Digital Age, these underlying concepts have become fluid, and the process of change is one that holds great promise for the future of culture. Instead of adapting to these new social models, however, copyright law is becoming stubbornly entrenched in the old ones. The failure to recognize new cultural patterns is not only a failure of legal concepts, but it also represents an underlying loss of cultural diversity. Indeed, cultural impoverishment, like the well-documented threats to biodiversity, seems to be a characteristic feature of globalization in its present form.11 How is it possible for copyright law to respond creatively to the changes of the Digital Age? Developing solutions to this important problem depends initially on clarifying two questions. First, the international copyright framework itself presents a façade of formidable complexity and perhaps, for non-specialists, something akin to inaccessibility. How, then, can we effectively decipher the workings of the international copyright regime, and in particular, how and why it acts to suppress free expression? A second, and closely related question is, where should we look to find alternatives to the current intellectual property regime? The question of alternatives to copyright is particularly difficult because the answers must resonate in three different dimensions – in conceptual, political, and technological terms. The international copyright regime is built on political and economic reality, and the term “harmonization” has come to designate the process by which international copyright law develops. However, the idea of “harmonization” is somewhat distorted when it is used to indicate a degree of synchronization between copyright concepts and economic or political pressures, as is often the case. Technology, largely neutral in itself, finds itself forced into the awkward position of lending its support to politics through the development of rights management systems that seek to control copying. As Tapper points out, technology, whether it is aimed at circumventing copyright rules or supporting them by making unauthorized copying difficult, is always subject to a kind of self-correction, as further innovation renders one system after another obsolete.12 Penalizing – and indeed, proposing to criminalize – one type of innovation over another arguably infuses innovation with a political flavor that may not come to it naturally. What, then, is meant by “harmonization”? Harmonization finds its natural context, not in law, but in music. In the legal analogy, it seems to have gained currency as meaning a process of revision that makes laws broadly similar to one another. In music, however, this is not what it means. The very notion of harmony depends on difference. Two identical notes cannot “harmonize” with one another – the essence of harmony has been brilliantly described as a juxtaposition of the disparate.13 Harmony means that two different notes enjoy a relationship of compatibility within the terms of a defined musical language.14 What is more,

Copyright: the legal face of globalization 11 harmony arises when individual notes are colored by the larger context defined by sequences of different notes. If the legal analogy is to be well drawn, legal “harmonization” should embrace some concept of a mutually complementary relationship, a level of consensus in the international sphere, however slowly it may be achieved. Harmonized laws will work in concert with other laws, in the context of a wider legal environment. Indeed, introducing “an identically phrased rule” into two different legal contexts may actually lead to legal differences, rather than the desired effect of sameness.15 In the present technological era, the development of true harmonization, particularly in the regulation of knowledge, increasingly appears necessary. Where, then, should we look to find concepts that guide us effectively towards “harmonization” in copyright matters?

From Berne to TRIPs: a new idea of copyright While copyright law is a relatively recent discipline – for example, compared to venerable branches of the common law such as contract – its pedigree nevertheless extends back more than a century.16 The Berne Convention first codified international copyright law in 1886, and this pioneering international instrument was a product of tense circumstances in the publishing trade of the day. The spread of publishing technology in the course of the nineteenth century made it possible for publishers to print unauthorized copies of works and translations outside the borders of the country where the author lived; the rise of literacy made these activities worthwhile. It is also interesting to note that the world’s worst pirate nation at that time was the United States, its publishers routinely infringing copyright in the works of European authors. Charles Dickens was a well-known victim: he became permanently embittered as a result of his attempts to gain recognition for his copyright on American soil.17 Concerns about the conduct of American publishers towards European authors was among the factors lending support to the idea of an international agreement governing the cross-border movement of literary works.18 In the initial stages, the purpose of international copyright law was, therefore, to secure recognition for the basic rights of authors outside their home countries. In an era of technological advance, where works could easily be reproduced without authorization and then either sold abroad or imported back into the country, the failure to achieve a level of international recognition for copyright would deprive the rights of all meaning. Earlier legal attempts to provide for international protection of the author’s copyright focused on reciprocal agreements between countries which agreed to protect the copyrights of their respective authors. By the middle of the nineteenth century, however, this approach had become unwieldy and impractical, making it difficult for authors to know where and how their rights enjoyed protection.19

12 Copyright: the legal face of globalization Somewhat differently from modern copyright agreements, the Berne Convention of 1886 was not conceived as a specialized document developed and drafted primarily by lawyers. Rather, discussions around Berne reflected the great variety of interests implicated in copyright questions of the time. The process involved a number of celebrated literary names, including Emile Zola, in his capacity as president of the new International Literary Association, and, as a Russian observer of the proceedings, Ivan Turgenev.20 Through a series of revisions, the Berne Convention continued to be the primary instrument of international copyright law until 1994.21 Though never entirely free of political controversy, Berne was reasonably successful in combining copyright provisions from the different legal traditions of common-law and civil law countries into a viable international framework. It was also responsible for bringing developing countries into the international copyright arena, first as colonies, and later, as independent states. The Berne system operated by setting an international benchmark standard, with member countries expected to attempt compliance through domestic legislative enactments. The Convention was strictly an instrument of public international law. In theory, disputes under the Berne Convention could have been taken to the International Court of Justice for a legal resolution, but, in the history of international copyright law, this appears never to have been attempted. Certainly, the Berne Convention could not lay claim to any specific “enforcement” mechanisms that could be invoked by member countries. For this reason, the implementation and enforcement of copyright in the member states of the Berne Union remained flexible. As in the case of much public international law, the desire to be good international citizens and respect one’s obligations led to solid progress in the internationalization of copyright standards under Berne. It should not be forgotten that the needs addressed by the Convention represented fairly narrow, self-contained, and immediate practical concerns, perhaps in contrast to other areas of public international law.22 As a postscript to the history of its development, however, it is particularly interesting to note that the United States did not become a member of the Berne Union until the rather late date of 1989.23 In 1967, the Berne Convention came under the administration of the World Intellectual Property Organization (WIPO), a specialist agency of the United Nations.24 WIPO was founded at a time of great upheaval in international copyright, when the dissatisfaction of developing countries with the international system threatened to destabilize it.25 Their objections culminated in a serious crisis at the Stockholm conference of 1967.26 One of WIPO’s roles, therefore, was envisioned to lie in the provision of assistance to developing countries in drafting and implementing modern copyright provisions.27 Despite, or perhaps because of, the pressures exerted by developing countries on the Berne Union, some progress was made over subsequent meetings in addressing copyright issues of special concern to the developing world. In particular, the improvement of literacy and education,

Copyright: the legal face of globalization 13 and the protection of cultural heritage, or “folklore,” have since become familiar themes of international copyright discourse.28 The TRIPs Agreement, adopted in 1994, introduced a number of innovations into the international copyright system that fundamentally disturbed this uneasy equilibrium. The factors leading to TRIPs included economic circumstances, such as the growing importance of copyright industries in the United States and other industrialized countries, and their prominence in international trade, as well as political dissatisfaction with the United Nations-based Berne system.29 Indeed, it may be said that American dissatisfaction with the Berne Union provided the spark for a new international approach to copyright.30 The TRIPs Agreement brought copyright out of the United Nations system and made it an integral part of the international trade regime. Copyright industries were now to be treated as any other group of industries included in the series of agreements and structures constituting the WTO. Most importantly, a country’s failure to maintain the standards of copyright protection set out in TRIPs could become the subject of dispute-settlement proceedings under the general measures of the WTO. Under the Dispute Settlement Understanding, it was now possible for the dispute-settlement body to impose trade sanctions on a country in virtually any area of trade to punish copyright infringement.31 International lawyers have been quick to point out that the linkage of international trade with dispute settlement may represent the single most significant accomplishment in the creation of the WTO.32 Growing protests against globalization and the vehemence of the antiglobalization movement have led to a sense that the future of the WTO may, itself, be uncertain. Nevertheless, the TRIPs Agreement has introduced a new and dramatically different concept of intellectual property rights into the legal arena. It has opened a Pandora’s box of consequences, both practical and conceptual, and going back to an older way of thinking about intellectual property may no longer be either possible or desirable.

Copyright reform: change as constant If we can pinpoint any single element as a characteristic feature of the new international regime established by the TRIPs Agreement, it is the process of copyright reform. Since the establishment of the WTO and the adoption of TRIPs, reform has become a universal phenomenon: it seems that virtually every country in the world, regardless of its level of development, has initiated a process of review, revision, and modernization of its copyright law. Indeed, the United States, although its domestic copyright law largely inspired the TRIPs framework, has been the first to initiate change in a number of key areas, particularly those that directly involve new technologies. For example, the US has pioneered the controversial idea of criminalizing certain types of technological innovation as a new form of copyright

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infringement in its own right. Notably, technical advances which may challenge the effectiveness of measures designed to identify and protect authentic copies of works – techniques of copying a write-protected CD, for example, or removing copyright information from a computer program – are specifically targeted by revised American legislation.33 Although reform is omnipresent in the international community, the countries most affected are undoubtedly developing countries and the “transitional” countries of Central and Eastern Europe. As a rule, lawyers are comfortable with the idea that developing countries lag behind the industrialized world in legal matters, and this is especially true in the cutting-edge field of intellectual property rights. However, the equation between underdevelopment and copyright reform is not as obvious as it may seem at first glance. Developing countries have long been involved in the international copyright regime, and most of them can lay claim to a solid understanding of Western-style copyright norms. Rather than arising primarily in relation to the substance of copyright protection, there are deeper reasons for the current wave of reform in developing jurisdictions. In contrast to earlier trends, reforms primarily respond to structural, rather than substantive, changes in the new international regime. At first glance, it may be surprising to note that the TRIPs Agreement introduced few changes to the content of international copyright law. Certainly, there are some new provisions designed specifically to accommodate technological innovation – for example, Article 10 provides explicitly for copyright in computer programs and databases.34 However, these changes are relatively few and build upon practices that were already established in the time of the Berne Convention. Indeed, it is the genius of the TRIPs system to incorporate and build on norms from the Berne Convention, rather than attempting to develop new copyright principles per se. Innovation in the TRIPs system occurs differently, through structural change – the connection of intellectual property rights with international trade rules, and the unprecedented role of the WTO dispute-settlement body in evaluating intellectual property standards. The revolution in intellectual property rights under the TRIPs system is properly understood as one of attitude and approach. The movement from Berne to TRIPs may be described as a transition from consensus to compulsion, individual to corporation, culture to commerce. It is hardly surprising that ways of thinking about the use of knowledge in non-Western and lessdeveloped societies are incompatible with the new system. However, it is perhaps an indicator of the magnitude of the changes brought about by technology, and reflected in the new regulatory scheme of the WTO, that the age-old conflict between developed and developing countries over intellectual property rights is no longer as clear-cut as it once was. Copyright issues bring industrialized countries into conflict with one another, with film, publishing, and other “cultural industries” becoming sensitive areas.35 In some areas of technological development, so-called “developing” coun-

Copyright: the legal face of globalization 15 tries have actually usurped international leadership from the industrialized world – India’s booming computer software industry is a classic illustration. Conflicts also arise between different communities within the same country. For example, aboriginal peoples and other minority cultures who may be physically located in the industrialized world will nevertheless find themselves, ideologically and spiritually, on the wrong side of the intellectual property divide.

TRIPs and the “developing” world: developing and transitional countries As was the case under the Berne Convention, the main current of dissatisfaction with the controversial new approach to copyright at the WTO flows from the developing world. Developing countries argue that the connection between intellectual property and the settlement of international trade disputes makes TRIPs an essentially coercive regime. Their concerns seem justified by the fact that developing countries were practically excluded from negotiations for the Agreement, inevitably giving priority to the interests and concerns of the industrialized world – a point that has been noted by legal scholars in industrialized and developing countries alike.36 However, so unusual is the TRIPs framework that the controversy surrounding TRIPs has not been confined to developing countries: it has also resulted in friction between industrialized countries. In spite of their concerns, developing countries have uniformly chosen to join the TRIPs Agreement.37 Renouncing the WTO has not been seen as a realistic economic option by governments in any of these countries. In part, they confront the reality that alternative developmental models have been ineffective over the years, while the range of political or ideological options available to support policies unfavorable to trade and economic liberalization is increasingly narrow.38 Change from within the WTO system may be the hope of many developing countries, and some tentative propositions in this regard were advanced by India in the course of the first TRIPs dispute under the Dispute Settlement Understanding, involving a complaint brought by the United States against India’s pharmaceutical patent provisions.39 In the meantime, developing countries have undertaken comprehensive programs of law reform under the TRIPs Agreement, including, of course, copyright provisions. The movement from Berne to TRIPs has also signified a major change in the international position of “transitional” countries. During the socialist period, many of these countries had joined the Berne Convention: Bulgaria, Czechoslovakia, the German Democratic Republic, Hungary, and Yugoslavia were all signatories to the most current, 1971 Paris revision. However, a significant group of socialist countries also remained halfhearted participants: Poland and Romania were members of the Berne Union, but they adhered only to the 1928 Rome text.40 Despite earlier

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expressions of interest, the Soviet Union remained entirely excluded from the Berne system, and its first foray into international copyright relations was membership in the less rigorous Universal Copyright Convention (UCC), at the late date of 1973.41 Due to their general isolation from international affairs, and Soviet suspicion of international copyright law, the socialist countries were not an influential group in international copyright relations. As in other areas of international activity, their position in the copyright system was quite ambiguous. Although many of them were officially part of the Berne Union, the feeling in the international community was that socialist countries were not serious about copyright. There was a widespread perception that membership in the international agreements did not impose any obligation on socialist states to honor the rights of their own authors, who were subject to rigorous censorship regimes. At the same time, the international flow of copyright materials into and out of socialist countries was limited by the political restrictions of the day. The TRIPs Agreement was the first instrument of international copyright law to include fully the countries of Central and Eastern Europe. In the process of integrating formerly socialist countries into the international regime, the issue of accommodating their needs arose for the first time. As the TRIPs Agreement was finalized, it became apparent that, in relation to international copyright matters, the “transitional” countries in many ways resembled developing nations. Like developing countries, transitional countries faced the need for rapid development to remedy the ill effects of a prolonged period of oppression and stagnation. Access to internationally current knowledge and information, and the encouragement of creativity and innovation at home, had become crucial objectives of copyright policy. In its final form, the TRIPs Agreement recognizes this kinship between the interests of developing and transitional countries. The Agreement makes provision for developing countries to “phase in” intellectual property protections over a five to ten year period, depending on the developmental level of the country in question.42 Transitional countries are included in these measures.43

From the regional to the international: Europe and the resurgence of WIPO One of the most complex problems presented by the new intellectual property regime is the difficulty of finding credible alternatives to the legal and intellectual hegemony of TRIPs. The reasons for this conceptual impoverishment in the copyright domain are diverse. Perhaps the most powerful of them lies deep within the history of international copyright regulation itself: international copyright law has always been defined by the European great powers, and the subsequent inclusion of post-colonial and postsocialist societies depended on their ability to conform to an established

Copyright: the legal face of globalization 17 44

international mold. A perceived bias towards Western and industrialized interests threatened to destroy the international copyright system in the 1960s, and eventually led to the first concerted attempt at the international level to address the concerns of newly independent member countries. The end result, among other things, was the adoption of a special protocol to the Berne Convention on developing countries.45 It is telling to note that the earlier discontents arose in the context of an international community that was very different from its present incarnation, and in particular, at a much earlier stage of its development. The idea of economic development, at least in the post-colonial context, was a relatively new field, and both developing and industrialized countries had ideas on how the international economy could best be strengthened. Since then, the field of ideas concerning economic development has narrowed significantly, with the idea of trade-based growth coming to dominate international thinking.46 Ideas about intellectual property rights have become correspondingly restrictive – for example, American observers have perhaps been overconfident in asserting the appropriateness of US-style patent regimes for the support of technological growth in developing countries, notwithstanding the paucity of empirical evidence in support of these claims.47 In relation to copyright, a similar example arises in the area of computer software. American software companies have assured the public, both in the United States and abroad, that higher and more specialized copyright standards will favor technological development in the software industry. This claim has been strongly resisted even within the United States, on both technological and purely moral grounds. For example, while many observers fear the impact of excessive copyright standards on innovation in the industry, such novel and pronounced opposition as Richard Stallman’s Free Software Foundation argues that it is morally wrong to restrict access to this important new technology.48 Given the desire of American software companies to protect their products from infringement outside the country, controversy within the United States on the extent of copyright protection for software appears increasingly awkward.49 The international community needs alternative approaches to intellectual property rights – new ways of thinking that will, at the very least, allow observers to build an effective critique of the TRIPs system. Alternatives to TRIPs may include attempts to accomplish change from within the system – an approach that some developing countries seem to favor indirectly, by making use of the WTO dispute-settlement mechanism to resolve conflicts with their fellows – or a movement to roll back TRIPs altogether and replace it with a new framework. Whatever approach one may advocate, the fundamental problem remains identical: where can alternative views on copyright be found, and, practically speaking, how will their influence ultimately be brought to bear on developments in the international arena? There are three obvious sources of alternatives to TRIPs: national developments, regional developments, and international developments. The first

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of these, the national level, presents an interesting situation. For most of its history, copyright law has been dominated by the presence of a few national models. Britain has probably been the single most influential national force behind copyright’s development, while the systems of Continental Europe, which are broadly similar and have constituted an important regional grouping at least since Napoleon’s time, represent another copyright tradition.50 In recent times, the United States model, which is significantly different from the international approach to balancing British common-law and European civil law systems embodied in the Berne Convention, has become a dominant national model. However, it is increasingly recognized that many countries which have traditionally not been associated with the idea of copyright in the Western mind also have models of regulation and cultural systems that affect what we think of as “copyright.” Whether or not these should be considered copyright systems per se – or indeed, legal systems – depends on our own cultural and political habits of mind. Interestingly, some of these new national models emanate from countries that are greatly different from the West, including two countries that have considerable economic potential and influence: India and China. In relation to copyright, the two countries are also very different from one another. India has long assumed a role of leadership among developing countries in the international copyright arena, attempting not only to give voice to their interests, but also, to provide alternative approaches to copyright based on its own, weighty, cultural traditions.51 China’s resistance to Western-style copyright is documented in a classic study by William Alford, who argues that Chinese tolerance towards “copying” is a product of thousands of years of cultural history.52 It should be emphasized that “national” perspectives may themselves be heterogeneous, as many countries include a great diversity of cultural traditions among their populations. For example, the perspectives of aboriginal peoples, whether they reside in developing or industrialized countries, tend to diverge fundamentally from the cultural stream of the majority. Countries which are traditionally thought of as lacking knowledge in the copyright sphere may nevertheless have ideas to contribute on the question of regulating knowledge in the Digital Age. Indeed, in some respects, these non-mainstream cultural traditions may prove to be better adapted to the realities of modern technology than Western legal tradition. For example, their systems may be based on different ideas of authorship, conceptions of the relationship between authors and society, or paradigms of creativity. The point is made by James Tunney in his writing on aboriginal peoples, whose cultural traditions seem to mirror the fluid quality of reality in the Digital Age.53 Notwithstanding the diversity of world legal traditions, the extent to which national systems may be of practical use in altering the direction of international copyright law remains questionable. It is doubtful whether any one country has sufficient clout in the realm of technology to provide a

Copyright: the legal face of globalization 19 viable alternative to the United States, whose own position, as the world leader in Digital Age technology, is largely embodied in TRIPs.54 Moreover, potentially influential countries from the developing world, including India and China, have been more than willing to play the international copyright game by American rules. China’s coveted admission to the WTO seems to seal its determination to meet the requirements of TRIPs, and bend its wayward cultural traditions to modern copyright practices.55 Many of the same difficulties surface at the level of regional involvement in intellectual property. To date, regional agreements in this field are few. The North American Free Trade Agreement (NAFTA) is a notable exception,56 but, in key respects, the Agreement must be understood as a precursor to TRIPs. One of its primary aims was to bind Canada and Mexico to American norms in areas of particular interest like pharmaceuticals.57 Most regional interests in intellectual property matters have yet to coalesce into agreements, though countries in the developing world are beginning to engage in dialogue.58 The post-socialist countries of Central and Eastern Europe are closely bound by common interests and problems in the intellectual property field; they also share a common legacy touching law, politics, and culture which implies unique perspectives that are likely to diverge significantly from Western norms on copyright matters. However, a variety of factors has limited the ability of Central and Eastern European countries to develop a regional position. These countries are reluctant to consider the consequences of their common past for post-socialist law, and they also have a more immediate imperative in the form of EU membership, which is most often assumed to be a self-evident goal. By far the most influential of the regional movements is the European Union – and indeed, the process of copyright harmonization at the EU differs fundamentally from every other regional trend in intellectual property. The extended international reach of the EU may make it reasonable to identify the harmonization process as a hybrid of regional and international movements, rather than a purely regional group. The remarkable power of the EU in copyright matters presents a marked contrast to the world’s major regional initiative in the field, NAFTA.59 NAFTA has had very little direct influence on developments in international intellectual property law, perhaps because of the overlapping US agenda in NAFTA and TRIPs.60 However, the EU has had a definite impact on the development of copyright, both in the international arena and in relation to policy development in major jurisdictions, significantly including the United States. In the number of countries and regional diversity which it now embraces – especially with the addition of ten new states from post-socialist Eastern Europe on May 1, 2004, and the prospect of extending membership to more countries – the EU has become something more than a regional organization.61 With the recent failure of the European constitutional process, it is not clear how much further EU integration will progress in the near future, in terms of attaining wider geographical expansion, or sounding greater political

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depths.62 As things stand, however, the EU must be recognized for what it is – something beyond a mere regional force in copyright matters. The movement from regional to international processes of harmonization carries us through the EU, and to another arena that, alongside the harmonization directives, provides slightly more interest as a potential source of new copyright concepts. By virtue of its political character and its wide, and rapidly growing, international membership, this second force is sufficiently large-scale and influential to qualify as a true international movement. It is embodied in the new copyright initiatives undertaken by a rejuvenated WIPO, and includes, in particular, the WIPO Internet Treaties – in their own way, the most significant international copyright legislation since TRIPs.63 Whatever may be the ultimate fate of the TRIPs system, it seems clear that the movement towards international harmonization transcends political necessity, and, at some level, is a response to the technological and cultural realities of the Digital Age. In other words, TRIPs is a response to globalization – though it is by no means self-evident that it is the most appropriate, effective, or useful response possible. What is clear is that the international community must find a way to achieve a satisfactory global response to the ongoing transformation of human civilization through new technology. Given this fundamental need for a viable concept of harmonization, alternative international movements in copyright law may be a useful source of new concepts. What, then, are the implications of the harmonization movements initiated by the EU and WIPO for change in the international intellectual property regime? European copyright harmonization: beauty in dissonance? The rival process of development in international copyright law at the European Union may help to achieve greater equity in the long term between the commercial and the cultural faces of copyright. To date, the European Union has issued six copyright harmonization directives.64 Through them, the EU has attempted not only to implement the minimum standards of protection required by the Berne Convention and the TRIPs Agreement, but also to shape European copyright law creatively. The harmonization directives try to accommodate the direction of future technological growth by emphasizing current technologies that are likely to become important, and maintaining a degree of flexibility in the application of copyright principles. The harmonization directives must also face the difficult task of reconciling the diverse legal and cultural traditions of the member countries. There is something slightly mysterious about the relationship between the EU and the international copyright regime. In particular, the legal relationship between the EU and the WTO is complex. The EU as a whole is a member of the WTO, and each member country of the EU is also a WTO member in its own right.65 At the legislative level, the EU acts indepen-

Copyright: the legal face of globalization 21 dently of the WTO in formulating copyright policy and enacting directives for the member states to implement in their domestic legislation. EU leaders perceive a technologically sophisticated copyright regime as one of the keys to economic leadership in the international community, and for this reason, the European approach has been to pre-empt the WTO by enacting standards that surpass TRIPs in the EU area.66 In developing legislative instruments on copyright that are more comprehensive and up to date than WTO legislation, the EU has, in some areas, succeeded in usurping the leadership of the WTO. Nevertheless, it is difficult to assess the precise impact of EU law on countries involved in intellectual property reform, and through them, the international system as a whole. Circumstances impose two kinds of limitations on the international viability of EU models. The first is a pragmatic consideration: although the EU is developing a legislative framework for copyright in the era of digital technology, its international influence remains somewhat secondary to that of the WTO. EU law appears to develop as much in parallel with the WTO as in overlapping directions, and as such, it is in direct competition with the WTO for international leadership. At the same time, due to its relatively limited geographical and political reach, the EU model of harmonization falls short of presenting a true alternative to the WTO system at the international level. This limitation leads to a second, and more conceptually significant, conclusion: EU harmonization has failed to produce a comprehensive model of authors’ rights for the international arena. There are a number of areas in which the EU might be well-positioned to become an international trendsetter, and it is interesting to note that some of these aspects of copyright have proven to be especially difficult to address through the TRIPs approach. The EU has attained this goal in its initiatives on the extension of copyright term, which have, controversially, pushed the United States towards a higher term of copyright protection. A notable example of an area of unrealized potential, and one that is more significant for the purposes of this inquiry, is the “moral right” of the author. In contrast to TRIPs, the EU has a unique opportunity to shape international developments in this area of persistent unresolved controversy.67 However, the EU seems reluctant to attempt legislation in areas that depart from the priorities identified by the WTO. This political timidity represents an opportunity lost. EU models could ultimately provide an alternative to copyright policy in TRIPs, particularly in new areas of regulation related to technology and culture. Moreover, the EU could concretely influence the development of copyright in post-socialist countries, offering them more conscientious guidance and a surer path to modernization than what is available through the broader international system.68

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A renewed role for WIPO: the Internet Treaties The importance of WIPO’s recent contributions to the international copyright arena has come as a surprise. In the aftermath of TRIPs, trade negotiators probably expected that international intellectual property matters would thereafter be dealt with primarily, if not exclusively, by the WTO. Although it had administered international conventions on intellectual property rights for more than three decades, and could trace its pedigree back more than a century, its future was thrown into doubt by these new arrangements.69 Provision was made for cooperation between WIPO and the WTO, which stood to benefit from WIPO’s unparalleled expertise in international intellectual property legislation and practice.70 The structure of the TRIPs Agreement, which operates by incorporating the relevant substantive provisions of the WIPO conventions, suggested that WIPO would be relegated to a definite secondary role after TRIPs came into effect – perhaps in the provision of advice to developing and other countries in need of help with law reform.71 It has been interesting to observe WIPO’s success in reinventing itself as a force for the development of international copyright law alongside the TRIPs Agreement. WIPO’s focus initially seemed to shift to alternative ways of developing copyright, rather than attempting to build international rules exclusively through treaties.72 Nevertheless, WIPO has developed two highly influential copyright treaties since the TRIPs Agreement entered into force, the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) of 1996.73 The two instruments are known together as the WIPO Internet Treaties, because of their innovative approach to the treatment of reproduction rights in the age of Internet communication.74 However, as Jorg Reinbothe and Silke von Lewinski point out, [C]alling the WCT and the WPPT “Internet treaties” is an understatement: examples such as the right of distribution or rental rights demonstrate that the Treaties are equally relevant, and even crucial, for the traditional environment of exploitation of copyright and neighbouring rights. In particular, provisions which govern new territory – notably on the right of making available, the protection of technological measures, and the protection of rights management information – clearly constitute highlights of future-oriented international law-making.75 In an interesting sense, time is on WIPO’s side: given the rapid pace of technological change, it could almost be said that TRIPs was outdated from the very moment of its adoption. In the development of the two Internet Treaties, WIPO was able to introduce two important innovations into international copyright. Significantly, the first of these is a conceptual one: in contrast to earlier intellectual property agreements, the Internet Treaties are

Copyright: the legal face of globalization 23 economical and highly focused, dealing with essential technological issues in minimalist language, and their dependence on membership in order to come into effect brings an important new emphasis to the idea of consensus in the post-TRIPs world.76 Second, the Treaties are unique in specifically choosing for their subject-matter the most problematic of copyright issues, those directly involving the development of new technology. The approach, which avoids an unnecessary claim to comprehensiveness, is to be admired. The substance of the norms developed in the two treaties is, however, another question. In its treatment of technological protection measures, WIPO stands accused of furthering the controversial policy of the United States, which, in its Digital Millennium Copyright Act (DMCA) of 1998, introduced the idea of criminalizing copyright infringement and, a true expansion, related activities, including technological innovation, that indirectly facilitate infringing activities.77 The WIPO Performances and Phonograms Treaty is also unique among international copyright instruments in introducing a fascinating innovation into traditional copyright: it creates, for the first time, an international moral right for performers. The significance of this achievement should not be underestimated. Performers have never enjoyed a status equal to that of other creators, because they are not considered original authors in their own right. Rather, it is the composer who is the true author, while the function of the performer is merely to disseminate his or her original work. It is telling that the right enjoyed by a performer is technically not a “copyright,” but an inferior right based on copyright principles, a “neighbouring right.”78 An important limitation inherent in the performer’s “neighbouring right” is the unavailability of moral rights protection: this element in the package of rights encompassed by copyright has been completely excluded from original performances. Article 5 of the WIPO Performances and Phonograms Treaty extends the moral rights recognized in Article 6bis of the Berne Convention to performers.79 The right is well adapted to the somewhat different character of performances, as opposed to other works, in the sense that the performer’s moral right applies both to recorded and “live aural” performances; fixation per se is not required. However, it should be noted that the provisions of Article 5 of the WPPT do not apply to audiovisual works: not surprisingly, given the history of moral rights and film, particularly in the United States, performers’ moral rights are excluded from audiovisual works.80 Considering the development of international copyright law, the creation of a moral right for performers has another significance. It represents a conceptual innovation, and one that signifies a movement away from the commercial orientation of the international system. Interestingly, the performer’s moral right reflects an issue that is highly controversial in the United States – what to do about the obligation to enact adequate legislative protection for the moral rights of authors generally, something that is required by the Berne Convention and, notwithstanding the slippery

24

Copyright: the legal face of globalization

treatment of the issue in TRIPs, technically required by the WTO.81 The US seems to be approaching moral rights as an area requiring specialized treatment, enacting narrow provisions that affect certain aspects of creative expression without enabling moral rights to make a grand general entrance onto the American copyright scene.82 The Internet Treaties have come into effect relatively recently – the Copyright Treaty on March 6, 2002, and the Performances and Phonograms Treaty on May 20, 2002.83 The decision to extend moral rights to performers is a clear departure from the TRIPs approach to copyright. If the Internet Treaties prove as influential as some commentators believe they will be, the WIPO Performances and Phonograms Treaty, at least, may act as a counterweight to the mistrust of moral rights in the TRIPs Agreement. Interestingly, a number of developing and post-socialist countries have joined the Treaties.84 Their motivations are diverse. The framework provided by WIPO may be more palatable to these copyright traditions. They are also understandably anxious to please the American government, which has been strongly supportive of the WIPO initiative, although the direct influence of the United States is more likely to be felt in post-socialist countries than in developing ones.

Conclusion: the international framework for copyright protection In many ways, the new international regime for copyright represents an important break with the past. The embodiment of the new regime is the WTO, with the new copyright framework specifically set out in the TRIPs Agreement. By bringing intellectual property law into the WTO, and making disputes over intellectual property subject to the general disputesettlement mechanism of the WTO, the character of the international system has been transformed fundamentally. International copyright is no longer based on the idea of progressive legal development in this field. Instead, the focus is on effective implementation and enforcement of the rights that are provided for in TRIPs and, at their origin, in the Berne Convention. At the same time, the movement from legal development to enforcement has meant an ideological shift. While it may be an exaggeration to say that the primary rationale behind international copyright in the era of the Berne Convention was purely cultural, it should be emphasized that the current international copyright regime is almost unquestioning in its dedication to the gods of commerce. The new commercial focus potentially comes at the expense, not only of culture, but also of every other interest traditionally supported or protected through copyright regulation. The WTO system has achieved an impressive level of ideological hegemony over copyright law. Its power is all the more compelling because of the paucity of alternatives to the new view of copyright. The capacity of national governments for independent thought is limited; the international

Copyright: the legal face of globalization 25 arena offers some avenues for greater diversity in modern copyright concepts, particularly through emerging world powers, at the EU, and possibly WIPO – but their promise has yet to be realized. The new international copyright regime is likely to have an immense impact on freedom of expression. Although the tension between copyright and free speech is, in a sense, hard-wired into Anglo-American thought, it is hardly accidental that the period since the TRIPs Agreement was finalized has witnessed a consistent escalation of this controversy. The success of copyright law has always depended on its ability to strike a fine balance among the tremendous diversity of interests involved. However, the new structure and philosophy of the TRIPs Agreement may have permanently disrupted an already fragile equilibrium.

2

Copyright and freedom in the “Digital Age”

The modern observer may believe that the tension between copyright and freedom – freedom of speech, expression, and thought – is a new problem. In fact, the essence of the conflict is as old as copyright itself. If anything, the current controversy illustrates beautifully history’s disconcerting tendency to travel full circle. Despite the dramatic new technological context, the controversy surrounding copyright is a proverbial case of plus ça change, plus c’est la même chose. While the essence of this relationship has remained unchanged, it is clear that the conflict between copyright and free expression has acquired a peculiar intensity in the Digital Age. Its current resurgence has to do with the changing circumstances of both freedom and censorship, brought about through the intervention of technology. Modern technology allows human beings to aspire to the experience of new dimensions of freedom; but it also represents sobering possibilities for the restriction of free expression and thought. Copyright law is deeply implicated in these issues. The new-found prominence of copyright in the Digital Age is a direct consequence of its intimate relation to technological change – in one sense, a natural extension of copyright’s traditional functions, and, in another, a result of deliberate policy choices. To understand the new dimensions of the complex relationship between copyright and freedom in the Digital Age, it is necessary to explore the nature of copyright’s involvement in new technology, and how this source of unprecedented prestige has also helped to precipitate a crisis of legitimacy in copyright law. The particular challenge of digital copyright is to achieve an effective new equilibrium that can re-establish the exceedingly fine balance between freedom and control, truly a “razor’s edge.”1 The danger is that the movement to expand copyright protection as we know it, encouraging ever greater restrictiveness in the availability of culture and knowledge, will bring the weight of copyright law down firmly on the side of the new censorship. The expansion of copyright standards is largely motivated by economic and political factors, and it is based on a convenient disregard for cultural and humanitarian concerns. The new orientation of copyright law finds its most ambitious expression in the TRIPs Agreement,

Copyright and freedom in the “Digital Age” 27 and in this sense, the historic expansion of copyright standards at the WTO is directly responsible for bringing a new urgency to the interplay of copyright protection and free speech.

The challenges of new technology Since its inception, the avowed purpose of modern copyright law in the English-speaking world has been to make possible the economic exploitation of works of art and knowledge. Copyright achieves this objective by conferring on authors a right to enjoy the economic benefit derived from their own work. More precisely, the author benefits from his or her first disclosure of the work: in practice, the publisher, who acquires by contract the “authority” to do what is necessary for the successful economic exploitation of the work, ultimately enjoys most of the economic gains.2 Apart from its economic rationale, copyright has also played a role in protecting the cultural and personal interests at stake in creative work. This aspect of copyright is traditionally downplayed in the common-law world, but civil law countries concede great importance to the non-commercial aspects of copyright protection. “Moral rights,” as they are known in the common-law countries, are widely recognized in European and post-colonial jurisdictions. Moral rights are a form of legal protection for the noneconomic – or, more precisely, non-commercial – interests of authors in their own creative works.3 In some of these countries, they are even considered to be the ultimate justification for the protection of an author’s right.4 By their very nature, works of knowledge are relatively easy to communicate. Of course, in the era of illuminated manuscripts and copying by hand among a minuscule literate population, there were significant obstacles to the communication of knowledge en masse.5 With modern printing technology, however, this situation changed dramatically.6 In particular, works of literature and music have been relatively easy to copy and communicate throughout the modern era, with even visual art becoming gradually more accessible through the advancement of technology.7 There is something inherently contradictory about the idea of copyright. Through regulation, it aims to restrict the free circulation of knowledge. It ostensibly does so for a specific purpose – that of allowing the creator of a work to enjoy the economic and personal benefit derived from his or her own creation. As an additional benefit, copyright protection also enables the development of lucrative industries around the commercial exploitation of works. Since the popularization of printing technology, there has always been a tension between the relative ease with which works of knowledge could be copied and disseminated, and the attempt to impose restrictions on these activities, whether through copyright law or more conventional means of true censorship.8 In earlier times, the gap between physical limitations on the ability to disseminate works and legal restrictions was relatively small. Through the intervention of digital technology, however, the gap has

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Copyright and freedom in the “Digital Age”

become a chasm. Most kinds of works can now be copied and disseminated at practically no expense or effort, and the quality of these “reproductions” is hardly less than that of an original copy. Paradoxically, the expansion of our capacity to manipulate works in the Digital Age has been matched by the corresponding escalation of copyright restrictions on their use. The expansion of copyright has not only meant that copyright law is out of step with technological change, but also that it is actually moving in the opposite direction. As technology tends towards ever greater freedom, copyright is progressively more restrictive. From a legal perspective, this apparent paradox is somewhat attenuated by noting that it is law’s usual role to soften the impact of social change. In this particular case, the escalation of copyright restrictions represents a need to deflect the impact of technological transformation.9 However, the advantages of this legal drive may not necessarily be perceived as such to the diverse interests who will feel its impact. Rather, where the public perceives technological change to contribute strongly to its own well-being, the gravity of copyright law, which pulls in a conservative direction, is likely to be experienced as a highly negative feature of the law, and not a constructive contribution. Indeed, given the realities of a digital environment, it is doubtful that even well-accepted copyright norms could have maintained an unquestioned legitimacy. The reasons for the sudden prominence of copyright may be found in copyright’s original role as a way of regulating intellectual and artistic work. This traditional function of the law has now been extended to works of new technology. Copyright’s new role in the protection of technology-based work reflects the preoccupation of their owners with securing economic returns. Ironically, in no field of knowledge-creation is information more readily free-flowing than in relation to digital works themselves. The contrast between law and reality could hardly be more striking. Copyright interacts with new technology in three ways. First, works which are traditionally protected through copyright law, including writing, visual art, music, and film, are essential in lending meaning to new technology: they are the “raw material” for information technology which provides the means of reproducing, modifying, and disseminating them.10 Without them, there would be little scope for technology to grow. A second, and more direct way in which copyright is involved in new technology is through the expansion of copyright’s scope to include the regulation of technology itself. To modern eyes, there is perhaps an air of inevitability about copyright protection for computer programs and databases, among the most influential of new technologies. However, it is interesting to remember that a mere decade ago, intellectual property protection for computer programs was the subject of intense debate, with commentators in the United States arguing in favor of sui generis schemes or patent protection over copyright.11 Indeed, the possibility of no protection at all was supported passionately by the movement that is now known, simply, as

Copyright and freedom in the “Digital Age” 29 12

“open source.” The eventual victory of copyright was as much political as legal: large software companies had much to gain from copyright, where the automatic and extensive availability of protection offered significant advantages over the competing alternative of patent law.13 It is worth noting that, like other copyright questions, the issue of copyright versus patent protection seems to have come full circle. In recent years, American commentators and judges have renewed their interest in the possibility of software patents, while, across the Atlantic, this new approach to software has recently been the subject of intense debate.14 A third area in which copyright has acquired a new importance is in relation to the protection of new kinds of artistic work. Technology has led to many possibilities for the creation of artistic and popular works, including, to name a few, digital music, installation art, computer-generated artworks, and digital galleries.15 It is difficult to assess the potential for growth in new forms of creative expression. For example, film is now considered an authentically new art form of the twentieth century, and it has become one of the most important political and artistic forces shaping copyright law.16 However, the impact of technology on art is not limited to the development of new forms, though the excitement in this aspect of technological change is undeniable.17 Rather, the technology of the Digital Age, like other historic developments in science and technology, promises to transform our ways of thinking about creative expression. This transformation is just beginning; but one of its implications is a fundamental shift in the basic concepts of authorship and creativity underlying copyright law. For example, Western copyright law has its roots in the idea of a hierarchical relationship between author and audience, a feature of European culture since the Romantic era, but this understanding of creativity is now challenged by our new capacity for creative interaction with the arts through digital technology.18 Technological change brings into dramatic relief the idea of copyright as artifice. Copyright is a legal construct: the restrictions that it imposes on the use of knowledge exist purely, or primarily, in law, while, due to the advancement of technology, very few restrictions operate in practice. More than ever, copyright reveals itself to be deeply susceptible to ethical and psychological concerns that fall outside the realm of pure law, per se. Without an appropriate moral justification that can achieve public support, fostering a psychology of respect for copyright norms, copyright protection will no longer be meaningful. The involvement of copyright with technology has triggered a crisis of legitimacy that fundamentally challenges the credibility of the law. For some observers, modern society would be well rid of copyright law, which they perceive to be a significant barrier to cultural and social development.19 Yet, without copyright, it is also possible that the creation of knowledge and culture will be left to fend for itself in a legal, and moral, vacuum. The absence of regulation could lead to many negative consequences, helping to

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Copyright and freedom in the “Digital Age”

create an environment of tolerance towards abuses of knowledge and culture, and encouraging a pragmatic disregard for individual rights. The new demands on copyright from the technologies of the Digital Age have led to changes in both the form and substance of established copyright norms. At the domestic level, copyright in technologically advanced countries has began to travel an upward spiral of expanding rights and levels of protection. The United States is at the forefront of this trend: as the world leader in technological development and the home of the digital revolution, it probably has more at stake than any other country in the future of copyright law.20 The leadership of the United States extends, in turn, to the international arena, where its trade negotiators have attempted to replicate the same expansive trend.21 At the international level, the achievement of this increase in levels of copyright protection has primarily been accomplished by attempting to forge an unprecedented relationship of interdependence between intellectual property rights and the general regime for international trade at the WTO. The TRIPs Agreement is the embodiment of this new concept of copyright.22

Copyright and freedom The new approach to copyright in the international arena has broad implications for human freedom. In particular, new levels and kinds of copyright protection have a profound impact on the relationship between copyright and freedom of expression, creative freedom, and economic freedom. Freedom of expression: censorship The first modern copyright statute is usually considered to be the English Statute of Anne, promulgated by the British monarch in 1710.23 The Statute of Anne was a product of complex forces at work in British society of the times. It responded directly to the earlier prevalence of censorship in Britain, which had led to monopoly control over publishing. This early monopoly was exercised by the Stationers’ Company on behalf of the monarch. The historic liaison between copyright and censorship, exercised through the publishing apparatus, is noteworthy, as current problems mirror the issues confronted by legislators when copyright law was first being forged in the crucible of eighteenth-century British reform. Moreover, the significance of this relationship is not restricted to Britain, or indeed, to the common-law world: the origin of copyright principles in censorship laws is no mere peculiarity of the common-law system, and a jurisdiction as exotic as Russia traces its modern copyright law to a censorship statute issued by the Tsar in 1828.24 The threat to free speech posed by copyright in early times was not a perceived conflict between creative authors and their own readership. Rather, the struggle, in sixteenth-century England as in twentieth-century Russia,

Copyright and freedom in the “Digital Age” 31 was between a sovereign who wanted to control the spread of seditious materials and his or her, potentially rebellious, subjects.25 Copyright restrictions were among the most effective means at the sovereign’s disposal to monitor the circulation of works in the realm. Copyright laws were framed in terms of authorship, yet rulers did not hesitate to exploit the mask of authorship to further their political goals.26 Authors, far from using the law to impose intellectual restrictions on the public, were themselves the victims of an insidious form of cultural oppression – suppressed by government censorship, and unwitting vehicles for the oppression of free thought among their own readership. Later, when the Statute of Queen Anne introduced the first copyright law to empower authors to control the exploitation of their own works directly, and to choose from among a competitive community of publishers, the Stationers’ Company fought to retain the privileges it had enjoyed unchallenged for two centuries.27 The battle strategy adopted by the Stationers was to don the mask of the author. The Stationers argued that the author, notwithstanding the new Statute, retained a common-law copyright whose privileges extended beyond the limited rights granted by the Statute, and provided for copyright to be protected in perpetuity. In practice, as they well knew, this perpetual privilege would not be enjoyed by authors, but by the Stationers themselves, to whom authors were expected to transfer their rights upon first publication. Benjamin Kaplan observes: Mansfield stressed the essential “decency” of securing for the author the opportunity to recover his expenses and earn a profit, the right to decide how his name and work should be presented to the public. (The fact that publishers, not authors, were at bar, was passed over in silence, as usual.)28 Common-law judges were sympathetic to authors, but they could not allow the Stationers to continue to enjoy their privileges in spite of the Sovereign’s clear intention to terminate them. In two landmark decisions of the late 1700s, ironically involving the same collection of poetry,29 English judges first upheld and then definitively overruled the concept of a commonlaw copyright that would continue to exist alongside the Statute. In this process, an important and dangerous historical precedent was set: commonlaw copyright might use the language of the author, but its underlying goal was to further the commercialization of creative and intellectual work, achieved in practice by protecting the economic rights of the publisher. The idea of a copyright truly for authors fell by the wayside, and a body of nuanced ideas about authors’ rights was discarded along with the other subtleties of a common-law approach. The period of conceptual fluidity following the introduction of the Statute of Anne, though nearly three hundred years removed, contains the seeds of many unresolved conflicts about the nature of modern copyright.

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Copyright and freedom in the “Digital Age”

Notably, in Millar v. Taylor, Lord Mansfield understood that an author’s interest in his work was a complex matter, involving both commercial considerations and non-commercial concerns, encompassing personal or cultural questions.30 Yet, when the so-called “moral” right of the author, which seeks to protect these non-commercial interests, eventually found its way into common-law copyright, it was through the insistence of international copyright law. The moral rights requirements of Article 6bis of the Berne Convention were barely tolerated by the common-law countries as a “foreign” intrusion.31 This attitude was reflected even in the awkward terminology of “moral rights” – a poor translation from the original French droit moral, much noted by experienced copyright observers, yet never replaced by a more congenial expression in English law.32 The idea of a non-commercial right has now become one of the most controversial aspects of modern copyright protection, and requires international reconsideration. The history of copyright has come full circle. In modern democracies, it is not the state, but corporations who increasingly seek to wield the power of copyright restrictions in defense of their own interests. However, the technology of the “Digital Age” has given to the public unprecedented access to the means of copying and disseminating copyright-protected materials. It has become a truism that digital technology and the Internet pose fundamental challenges to the viability of copyright law, by making it extremely difficult to enforce copyright restrictions as in the past. It is equally important to note, however, the less obvious but powerful reality that the current technological era challenges the moral legitimacy and credibility of the very concept of copyright. As copyright has become more difficult to enforce in practice, the owners of copyrights in works – for the most part, corporations to the publishing, recording, entertainment, and technology industries – have responded with desperate measures, lobbying for the recognition of ever higher copyright standards and harsher mechanisms for their enforcement. In their view, it is a question of industry survival; but few alternatives to the expansion of copyright have been considered, either in the struggle to maintain the viability of the traditional publishing and entertainment industries, or in the drive to maximize the growth of new technologies. At the same time, the approach of corporations to copyright has polarized public opinion against them, and fostered a growing resistance to the very concept of copyright control.33 The public feels that copyright has become the ultimate restriction on its right of free expression – in particular, the right to have access to works of the intellect, art, and entertainment for personal enjoyment, and to make use of the existing cultural and intellectual heritage for the purpose of creating new work. The copyright industries have adopted an attitude of inflexibility. As much as any other factor, their attitudes have, in a sense, forced the development of copyright to continue outside the realm of copyright law per se. For example, the Creative Commons movement, spearheaded by Lawrence Lessig, is among the most well known and influential proposals for

Copyright and freedom in the “Digital Age” 33 a new approach to copyright law in North America. Running parallel to like-minded movements such as Richard Stallman’s Free Software Foundation, the idea of the Creative Commons provides a way for authors to release their work directly into the public domain. Creative Commons operates by means of a general license which allows all users who participate in the scheme equal access to one another’s work.34 Contrary to common perceptions, the license does not dispense with copyright. Rather, copyright continues to be available as a means to take action against anyone violating the terms of access promoted by the Commons idea – for example, if someone tries to assert ownership over a work published through Creative Commons, or otherwise tries to use the work for purposes of commercial exploitation. As such, copyright ownership, and the threat of infringement, remains a powerful tool for the protection of works from abuse, and brings legal connotations to authors’ relationship with their own work and their rights over it. Recent challenges to the Creative Commons approach have argued that unlimited licences of this kind are not allowed within the terms of American copyright law.35 However, there is no obvious legal bar to the interpretation of copyright pursued by the founders of the movement. Indeed, copyright tradition encompasses a broad level of support for the use of licensing is as a tool of public policy; for example, the use of works for educational purposes has often been exempt from copyright strictures, and this could be accomplished through licensing.36 Moreover, the right to use works in the past was not dependent on licensing: the uses of works for non-commercial purposes fell naturally outside the scope of copyright law, and, due to a shorter copyright term, works also entered the public domain more quickly. The nature of the relationship between Creative Commons and copyright law deserves a closer analysis. Creative Commons is clear in its rejection of commercial copyright, but it does not deny the cultural and personal interests implicated in copyright. Indeed, the licensing scheme developed by Creative Commons actually lends support to the idea of a moral right of the author, which, notwithstanding the problems of commercial copyright, continues to deserve independent recognition in the environment of new technology.37 The use of copyright as a tool of censorship by corporate interests is an issue of overpowering concern in wealthy countries. However, the censorship powers of copyright extend to the international community at large. Not surprisingly, developing countries are affected; but the effects of copyright’s growth are felt, in particular, by communities everywhere whose cultures are distinct from the mainstream, such as aboriginal peoples and minority populations.38 The negative impact of copyright occurs, not only because of improving levels of copyright protection – an area of primary concern in advanced countries – but also because of different kinds of requirements for protection. The older international approach, as represented by the Berne Convention, allowed countries a degree of flexibility in the implementation

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Copyright and freedom in the “Digital Age”

of copyright standards. However, one of the major innovations of the TRIPs Agreement is to bring greater conformity to the ways in which copyright is implemented. The TRIPs approach represents a more rigid international framework, affecting the capacity of the international copyright regime to accommodate forms of culture that differ from that of the Western mainstream. A simple example is provided by Article 9.2 of the TRIPs Agreement, which states that a work, in order to enjoy the benefit of copyright protection, must be “fixed” – in other words, recorded in some tangible medium.39 This article mirrors a parallel requirement in US copyright law, but it is interesting to note that fixation is not a uniform feature of copyright laws, even in the common-law countries.40 The fixation requirement means that many forms of creative expression, including oral culture, will not be eligible for copyright protection under the TRIPs Agreement. At first glance, the exclusion of oral culture from TRIPs might not seem like a problem: after all, if oral culture is not subject to copyright restrictions, does that not mean that it can escape the stifling effects of excessive copyright protection? Unfortunately, the truth is more complicated. The meaning of being excluded from TRIPs can only be understood by a comparison with what is included in the Agreement. In relation to oral traditions, rather than allowing them to maintain a pristine vitality, their exclusion from copyright protection may actually encourage their unfair exploitation by means of the copyright system. Non-property interests can rarely withstand the power of property rights. For example, this kind of problem arises in relation to traditional medicine, where it has become common practice for companies from the developed world to investigate and acquire the freely available traditional knowledge of developing countries or aboriginal peoples, in order to make commercially viable drugs. The practice has come to be known as “bio-prospecting,” and the parallels between biological knowledge and cultural knowledge in this sense are striking.41 Whether or not the international copyright system ultimately proves to be suited to the protection of traditional cultures, the current framework of TRIPs acts against their interests. In this way, the international copyright regime becomes instrumental in suppressing the free speech of non-Western or, more precisely, non-mainstream cultures throughout the world.42 In relation to aboriginal peoples and minorities, the potential impact of copyright is still greater: aboriginal peoples in developing countries, for example, face a dual risk of discrimination and exploitation by the governments of their own countries. The emphasis of the international copyright regime on the protection of works according to the nationality of the author presents a potential problem for these groups, whose conflicts with national governments may often leave them bereft of nationality and statehood.43 Adding to the discouraging news for diversity of expression in the international arena, the WTO has brought its vision of copyright to an unprecedented number of countries. It has succeeded in achieving what no previous international body has ever done – virtually universal membership.

Copyright and freedom in the “Digital Age” 35 Creative freedom: is copyright law obsolete? The essence of free expression, in modern societies, is the right of every member of the general public to express his or her views without fear of reprisals, whether from the state or from fellow citizens.44 The idea of freedom of creativity moves beyond this general notion, to suggest that every person should have the right to develop his or her own capacity for free and meaningful expression. In the past, European copyright scholars have recognized a droit de créer, or “right to create,” as part of the ensemble of rights which may, in theory, fall within the ambit of copyright. In copyright tradition, as explained by noted Scandinavian scholar, Stig Strömholm, the droit de créer is a relatively narrow right: it seeks only to protect an author against contractual commitments for his future, as yet uncreated, works.45 However, the droit de créer is derived from a broader theory of recognition for a person’s inherent creativity, which Strömholm’s theory does not deny. The term, freedom of creativity – or, alternatively, freedom of the imagination – is suggestive of the wider principle.46 In the Digital Age, creative freedom is, as the expression goes, an idea whose time has come.47 The importance of freedom of creativity has been recognized throughout the twentieth century, if not before, but it has always pertained to a small and relatively select group of people: recognized, and often professional, writers and artists. The contribution of the Digital Age is essentially democratic: it promises the extension of this privilege to humanity at large – to anyone who has access to basic information technology facilities such as the Internet and word processing software. In the developed world, a significant proportion of the public is in this position, with access in many developing countries rapidly gaining ground.48 Interestingly, growth in public access to technology is not limited to the giant economies of countries like China, India, and Brazil; even poorer African countries appear to be enjoying an encouraging improvement in the generalized use of technology.49 What is striking about the availability of new technology is the capacity which it brings to interact with creative works, conferred on all members of the public without discrimination. Once an artistic work has been transformed into a digital format, the possibilities of access to the work, enjoyment of it in a variety of circumstances, use of parts of the work, or the creation of a new work including various parts of the original, are all limited only by the individual’s imagination. The availability of works through media like digital art galleries or concert halls is increasingly a feature of the Internet.50 Through new technology, it also becomes possible to intervene directly in a work, making seamless alterations and additions that need never be consciously noticed by a person who subsequently experiences it. This is equally true for works of literature, music, or visual art. Indeed, the opportunities for cultural and intellectual life generated by new technologies have yet to be fully grasped. They call for a new kind of personality to

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Copyright and freedom in the “Digital Age”

emerge in the Digital Age, that of the creative individual who integrates cultural experience into his or her daily life. In the world of music, Canadian pianist Glenn Gould foresaw this new gift of technology as far back as the 1960s, and dubbed the creative and proactive new audience for music, “The New Listener.”51 It is a tribute to the visionary quality of his imagination that, nearly a half-century later, the world of culture has barely tasted these opportunities. It is also disturbing to note that copyright rules, whose ultimate raison d’être is to facilitate the development of culture, seem to be moving towards senseless restrictions rather than adapting to a decidedly new cultural reality.52 Just as new life may be breathed into creative freedom by technology, inappropriate regulation may stifle it. The new approach to copyright in the TRIPs era could entail a number of ill effects for the freedom to create. Most obviously, an increase in levels of copyright protection without corresponding efforts to balance the new standards against appropriate provisions for use and access, may become an effective bar to the creative use of existing works, or the creation of new ones. For example, the concern arises in relation to the term of copyright protection, comfortably increased in the European Union to the lifetime of the author and 70 years after his or her death, but intensely controversial in the United States.53 Increasing the term of protection for copyright can accomplish a number of goals of public policy, described by Adolf Dietz in his interesting study of German copyright policy.54 Like other aspects of copyright protection, however, an arbitrary extension of term by itself, and without an adequate supporting rationale, may ultimately do more harm than good. Disturbingly, the vision of copyright contained in TRIPs, and supported at the domestic level by spokespersons for the copyright industries in the United States, sees public access as a privilege rather than a right.55 Historically, copyright has been widely recognized as an exception to the public domain, and not vice versa: knowledge fell naturally into an intellectual commons where, however, its use was subject to certain restrictions in the interests of public policy. Now, it is copyright that seems to be considered the natural and fair order of things, whereas the public domain is an exception to copyright. Perhaps this new concept of copyright is one of the explanations behind the controversial ruling of the United States Supreme Court in the Feist case of 1991. Here, contradicting the history of US practice, the Supreme Court justices seemed to favor a natural rights theory of copyright for the first time, rejecting the Lockean “sweat of the brow” level of nominal originality that had previously been all that was required for copyright to subsist in a work.56 Strategies of enforcement may additionally complicate the problem. Through TRIPs, the United States has led the world towards greater emphasis on the effective implementation and enforcement of copyright standards. It seems quite natural to want to enforce copyright standards. However, the current expansion of standards is matched by an unusually

Copyright and freedom in the “Digital Age” 37 severe approach to enforcement. Notably, the US has pioneered the imposition of criminal penalties on those who are guilty of copyright infringement, while the definition of infringing activities has itself expanded greatly, to include what might previously have been considered acceptable. Although TRIPs does not specifically provide for criminal sanctions, it places great emphasis on the development of effective enforcement mechanisms, both among member countries and in the international arena as a whole. Since the TRIPs Agreement, the United States Digital Millennium Copyright Act (DMCA) has pioneered the availability of criminal penalties against infringement;57 its lead has been followed by the WIPO Internet Treaties, which widely introduced the idea of criminal penalties for the indirect infringement of copyright through Digital Age technology.58 These trends point towards a tightening of international measures for the protection of copyright and, in particular, greater inflexibility in the implementation of copyright standards. In the interest of fair-mindedness, it should be emphasized that higher levels of copyright protection may or may not constitute restrictions on creative freedom in their own right. Whether or not the new approach creates difficulties will depend on the particular context in which standards are raised. In the context of the TRIPs Agreement, and the general reorientation of copyright principle which it signals, the danger to freedom of creativity is acute. The difficulty presented by TRIPs, even more than the fact that it increases and changes accepted copyright standards, is its role in introducing a new way of thinking about copyright as primarily a form of commercial law. The increase in copyright standards which it establishes is largely dominated by a single purpose: to assure the commercial viability of the copyright industries. This ideological focus is inherently problematic for freedom of expression. Copyright has always claimed to protect the rights of individual creators – as, indeed, the purpose of patent law is ostensibly to protect the “small man,” the individual inventor hard at work in his basement atelier for the betterment of society, and perhaps, the achievement of some small degree of immortality through his work. One of the benefits of the technological era is that individual creators are in the spotlight as never before: digital technology brings to their work a new excitement of exposure, relevance, and social impact. It should not be forgotten, however, that an undeniable reason for their newfound celebrity is the unprecedented economic interest of their work, without which the information society would have little basis for its own development. It is in this context that Jacques Ralite, writing for the French news magazine Le Monde diplomatique, comments on the role of culture as raw material for the information circuit of the Digital Age.59 If anything, the spread of copyright through the TRIPs Agreement threatens to allow large and powerful interests to benefit at the expense of the individual creator. This happens through the many legal and practical mechanisms which allow corporate interests to position themselves over the

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author – today, as in the time of the Statute of Anne – as the main beneficiaries of the copyright system. These include the “employment rule” in Anglo-American copyright, which grants corporate ownership to works created “in the course of employment,” as well as standard practices in the entertainment and arts industries throughout the Western world.60 At the same time, however, the new economic opportunities of the Digital Age have also brought new challenges to the preservation of diversity, in the sphere of cultural expression as in other areas of human and natural life. In other words, at precisely the moment when culture and its creators are most in need of support, the international copyright system, which should aim to protect their interests, threatens to desert them. Economic freedom: the idea of enforcement The economic rationale supporting TRIPs does not mean that the international copyright regime is necessarily capable of exerting a positive influence on economic growth throughout the international community. The United States, and certain other developed countries, believe that the TRIPs framework will benefit them economically – among other things, by cementing their competitive advantage in technology. However, as is the case in relation to patent protection, it is far from clear that TRIPs provides the level and kind of copyright protection that is most suitable for countries in different economic and political circumstances. The rhetoric of TRIPs has been that the system is good for developing countries – at the very least, by helping to attract investment from the developed world. Unfortunately, there are few empirical studies to support this claim, and the methodological difficulties of realizing further empirical work are formidable.61 At the same time, it is undeniable that the current situation of international copyright piracy is at least partly motivated by economic factors. Considering the extent of piracy, it would appear that the consumer public in countries like Russia and China is unable to bear costs of software or music CDs that are comparable to their levels in the United States or Western Europe – an unsurprising conclusion. At the same time, and perhaps unfortunately, copyright piracy, in its own right, clearly makes a contribution to economic growth in these countries. Piracy as an industry is itself a source of economic and commercial life and growth. The black economy may even help to propel the legitimate industries in these countries forward, by providing a platform from which they can build and establish their own social presence.62 The success of the pharmaceutical industry in India is widely touted as an illustration of what can be accomplished by the developing world through technology; yet the development of this industry depended on patent rules that differ greatly from the American norm, and indeed, ultimately became the subject of the first lawsuit under TRIPs brought before the WTO dispute-settlement body.63 In arguing that strong copyright protection may help developing countries to progress, the

Copyright and freedom in the “Digital Age” 39 American software industry stands on similarly shaky ground: it developed in the more or less complete absence of regulation, and the subsequent extension of copyright protection to software has arguably tended to support the entrenched interests of major players in the industry, like Microsoft Corporation, at the expense of newcomers. Conclusion: the need for a new “idea of copyright” Copyright has reached an important, and perhaps crucial, juncture in its history. With the advent of digital technology, it has become increasingly difficult to enforce all of the rights that copyright claims to protect. In particular, the author’s rights to control the public release, reproduction, and dissemination of his or her work – the heart of copyright protection – are challenged by new technology. In the Digital Age, technology effectively delivers these activities into the hands of any member of the public with access to computing technologies. At least in the developed world, the social penetration of the Internet and other digital facilities means that technology is widely available to the general public.64 In these circumstances, it must be acknowledged that copyright-holders, and governments acting on their behalf, suffer from a greatly reduced capacity to enforce the legal fiction of copyright. The changes brought about by the technological revolution are so farreaching that they inevitably raise fundamental questions about what kinds of copyright restrictions are appropriate and desirable in the new environment. The restrictive functions of copyright are viewed with suspicion because of their potential interference with technological and social change, and even, its outright suppression. It seems clear that it is not in the best interest of society to insulate technology – or, indeed, culture – from the new opportunities for growth. In support of these arguments, the history of communications technology is often invoked: as noted earlier, both the Internet and the trend-setting American software industry initially developed in relative freedom from regulation. In addition to these concerns, technological change in the industrialized world has brought with it questions about continuing inequities in the global arena. Given the hunger for technology in the developing world, and its potential contribution to the alleviation of poverty, to what extent is it possible to justify the restriction of technological knowledge? In spite of these compelling arguments, copyright law is moving resolutely away from liberalization.65 The global trend is in precisely the opposite direction, towards ever higher levels of copyright protection and ever greater restrictiveness in the treatment of knowledge. The improvement of copyright standards is matched by a growing emphasis on “enforcement,” which seeks the fullest possible observation of the new levels of protection throughout the international community. Ironically, the tension generated by these two opposing movements threatens to tear apart the fabric of

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Copyright and freedom in the “Digital Age”

copyright law. More than any other factor, the inexorable tightening of copyright restrictions has been instrumental in recent frustration with copyright law as a whole. It is tempting to argue that, in the new technological environment, copyright protection, as we know it, has become untenable. However, it is more difficult to reject the underlying concept of copyright. Copyright is, in a sense, victimized by its own terminology: it is not a right, but a complex and multi-faceted legal field that encompasses many different strands of theory, kinds of rights, and approaches to implementation. It also represents a form of knowledge in its own right, and in particular, a body of accumulated awareness about what is both good and bad about the regulation of culture in the modern era. The continued value of this knowledge depends on the effectiveness of modern reformers in re-shaping the law to respond to genuine concerns about its credibility. In particular, reform will have to remake copyright to emphasize different, and perhaps new, strands of copyright theory, balancing the new interests implicated in copyright, and developing a new vision of its social role. One of the important concerns of reformers should be to consider whether and how different elements of copyright law can contribute to strengthening the protection of freedom of expression, in all its forms, in the technological age.

Moral rights: the future of copyright law? In addressing the question of copyright’s role in a technological society, modern reformers face the difficult challenge of finding concepts, principles, and approaches that can breathe new life into this ancient concept. The sources of these new ideas are likely to be diverse, and may include legal systems and cultures that have historically been on the fringes of the copyright arena. If the search for concepts of reform in new jurisdictions can be characterized as outward looking, or extroverted, the possibility of a correspondingly introverted attempt to develop solutions cannot fail to interest reformers. In the copyright context, introspection means the re-examination of copyright’s history as we know it, and the intricate search for critical junctures where modern copyright parted ways with its ancestral heritage. In the history of common-law copyright – and, therefore, the international regime as a whole – the moral right of the author represents one of the most important of these transitions. The recognition of moral rights in Millar v. Taylor, and their subsequent exclusion from common-law copyright in the case of Donaldson v. Becket, were key moments in the development of modern copyright law, occurring as a response to the dangerous resurgence of monopoly control over publishing.66 At that time, the English courts excluded the possibility of a natural rights justification for copyright, which would have overruled the limited monopoly put in place by the Statute of Anne in favor of perpetual rights to be exercised by the Stationers’ Company. In hindsight, the exclusion of a natural rights rationale from the

Copyright and freedom in the “Digital Age” 41 common-law tradition may amount to a major limitation on copyright’s development in an era where creative expression may be explicitly in need of protection because of its inherently special nature.67 In the present search for new approaches to copyright regulation, the moral right of the author has an instrumental role to play. Although it is one of the most creative aspects of copyright law, the concept of moral rights remains highly controversial and poorly understood among the common-law countries. A level of suspicion is apparent even in the enactment of new legislation: historic UK provisions on moral rights, enacted with great fanfare in 1988, and recent Australian law show little interest in exploring moral rights, while the US has yet to develop a coherent strategy.68 However, a renewal of interest in moral rights not only means a new introspection in the common-law world towards this difficult historical transition: moral rights also sound in perfect harmony with the opportunities for reform that may be available in the new cultural diversity of an expanding copyright community. In contrast to their ambiguous position in the common law, and as against many other aspects of copyright protection, moral rights are among the most widely accepted aspects of copyright in the world. They enjoy recognition in a staggering range of jurisdictions, from the wealth and individualism of Continental Europe, to the traditional cultures of India and the ancient societies of sub-Saharan Africa. At a time when copyright law is struggling to maintain its credibility, moral rights may represent much-needed moral force. Indeed, the moral right of the author has the potential to play a significant role in shaping the copyright law of the future. In the absence of moral rights, copyright in the Digital Age may become bankrupt, not only in the moral sense, but ultimately, in practical and legal terms as well. The TRIPs Agreement has achieved the standardization of most aspects of copyright law. However, the moral right of the author is a notable exception to this rule. Efforts to harmonize them at the international level have been notoriously unsuccessful. They have resisted, not only TRIPs, but also harmonization through other regional processes. Even the European Union, which would seem to be the best placed of any international grouping to address moral rights, has been unable to achieve any meaningful progress in this area. The most that has been achieved internationally is the introduction of a moral right for performers in the WIPO Performances and Phonograms Treaty.69 While this development is deeply significant for performers, who enjoy through them an unprecedented equalization of their status with that of “true authors,” the right threatens to create legal anomalies without introducing major conceptual advances.70 What, then, is the relevance of moral rights to the digital era – this exception to the global copyright norm? Copyright – despite the monolithic word – actually encompasses a great diversity of rights. These rights fall generally into two groups: economic rights, and those that protect non-economic, or non-commercial, interests,

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Copyright and freedom in the “Digital Age”

known as moral rights. Moral rights reflect the personal interests of the author in his or her own creative expression; in a broader sense, they represent a form of recognition for the interest of the public in the preservation of works of cultural importance.71 Moral rights are based on the idea that an author has a special relationship with his or her work, so that, for example, it is important for him or her to be identified as the author, and to prevent people from damaging, defacing, or distorting it.72 Copyright generally assigns to authors an exclusive right to govern the reproduction and distribution of their work, with a view to ensuring that authors enjoy a level of return from the sale of their work. In contrast, moral rights are not directly concerned with the economic aspect of creative work; their preoccupation is with its personal, artistic, and cultural value. The doctrine of moral rights can lead to unusual legal consequences. For example, moral rights are held independently of authors’ economic rights in their work, and an author may therefore continue to vindicate his or her moral rights even after he or she has parted with the economic rights. The extension of copyright protection to a range of “works” beyond traditional creative works, such as computer programs, has led to the controversial situation where moral rights may potentially be applicable to these new kinds of copyright works as well.73 As these examples illustrate, moral rights can be very powerful; indeed, concern about the economic impact of moral rights has led some jurisdictions to limit their exercise by means of controversial devices such as standard form waivers in artists’ contracts.74 At the international level, the TRIPs Agreement has adopted a strange formula for dealing with moral rights. Article 9.1 of the Agreement requires member countries to “comply with Articles 1 to 21 of the Berne Convention (1971).”75 Since international moral rights are codified in Article 6bis of the Berne Convention, signatories to the TRIPs Agreement are apparently required to protect moral rights in their national legislation in accordance with the provisions of Berne Article 6bis. However, Article 9.1 of TRIPs goes on to specify that, “[m]embers shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom.” The effect of this elliptical formula is that Article 6bis rights cannot be enforced through the dispute-settlement mechanism of the WTO. In other words, while copyright as a whole has moved into an international framework built around the principle of enforcement, moral rights continue to be governed by an international standard which may be best understood as aspirational, rather than mandatory. Is the failure to standardize moral rights under the TRIPs Agreement a positive or a negative development? There is no clear answer to this question. In one sense, moral rights have remained an area of flexibility in an increasingly rigid international copyright system. However, the failure to achieve “enforceability” for these rights in the WTO system may also signal a loss of prestige and importance attached to them at the international level. Rather than attempting to determine whether the exclusion of moral rights

Copyright and freedom in the “Digital Age” 43 from TRIPs is ultimately for the best, it may be more interesting to consider the implications of their ambiguous position for the development of international copyright law. The difficulty of achieving an international standard for moral rights is hardly surprising. Moral rights have been an area of persistent international controversy for decades. The divisions separating countries and legal systems over moral rights have deep historical and cultural roots. For example, the United States has long been wary of moral rights for a variety of reasons, including the possibility that they may conflict with provisions of the American Constitution concerning the appropriate policy basis for copyright law. The American Constitutional framework suggests a need to balance rights of authorship against the right of the public to have access to works of the mind.76 Among the arguments historically presented against moral rights is the perception that they are too strongly oriented towards authors’ interests, and too restrictive of the uses of knowledge, to be compatible with the intentions of the framers of the Constitution.77 Nevertheless, after joining the Berne Convention, the United States enacted the Visual Artists’ Rights Act (VARA), which introduced limited moral rights protection for visual artists, thereby “soften[ing] . . . [the] prohibition of explicit moral rights protection.”78 Moreover, in the recent decision of Eldred v. Ashcroft, the United States Supreme Court found that there need not be any conflict between copyright law and the rights of free speech under the First Amendment; indeed, copyright law, through the idea–expression dichotomy and the “fair use” defense, provides built-in protection against the violation of free speech principles.79 It remains to be seen whether this decision will remove at least one of the obstacles to greater recognition for moral rights in the United States.80 It is ironic, however, that as economic copyright enjoys virtually unlimited expansion in America, commentators emphasize the special restrictiveness of moral rights on free speech. It is undeniable that moral rights, like every aspect of copyright, limit one’s ability to use a work. What is unclear is why moral rights protections are particularly undesirable. Arguments that have been raised against them include concerns about the possibility of applying vague criteria to copyright situations; in contrast, issues involving the infringement of economic copyright are said to be relatively clear cut.81 However, the fact that it may be difficult to develop standards for the interpretation and application of moral rights does not mean that they should be denied. Indeed, many jurisdictions have achieved successful practices for the recognition of moral rights. For example, France’s legislation on droit d’auteur, as European copyright is known, includes some of the most comprehensive provisions on moral rights in the world. The author’s moral right is balanced by provisions which attempt to act as safeguards – notably, a specific legislative exception for parody – while the presence of the rights in French law arguably improves conditions in the creative industries for individuals and small-scale creators.82

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It is still more interesting to consider the reaction to moral rights in the most unlikely quarters – among creators in the new technology industries, and at the very heart of the American anti-copyright movement, in the “open source” community. In at least some situations, computer programmers, the most unconventional of authors, nevertheless see themselves as being entitled to moral rights. For example, moral rights represent a way in which programmers, at the individual level, can preserve their integrity and creativity in an industry that is increasingly dominated by large corporations. The idea of reputation is well understood in this community; the same may be said of the open source community, at large, where one must respect the “integrity” of code and maintain its “attribution” to the proper author.83 Whatever the reasons for this emphasis on something akin to a moral right – whether they are primarily technical or personal – it appears that there is an intuitive awareness of creators’ moral interests even among communities that may be strongly opposed to some or all aspects of economic copyright. In the recent negotiations for the TRIPs Agreement, the United States was again uneasy about bringing moral rights protection formally into American law. In this instance, it is clear that political factors, rather than legal tradition, influenced the American position. A powerful film industry lobby, whose members were concerned that moral rights could have farreaching economic implications for the production and distribution of movies, campaigned against them.84 Its opposition continues to be profoundly influential at the international level: although the WIPO Performances and Phonograms Treaty (WPPT) introduced unprecedented moral rights for performers into international copyright law, the objections of the US film lobby ensured that they would apply only to “audio” performances, and not to “audiovisual works.”85 The American approach to moral rights has met with widespread criticism from European countries, as well as Canada. The most bitter opponents of the US view are probably the French, who not only have a strong tradition of moral rights protection, but have also emphasized the importance of distinguishing between cultural and commercial concerns in international trade negotiations. In a less drastic form, the opposition between France and the United States over moral rights is replicated within the European Union itself. Here, the contrast lies between the civilian legal traditions of Continental European countries and the British common-law system. Continental systems such as those of France and Germany have traditionally assigned great importance to authors’ moral rights, to some extent, constructing their copyright systems around these rights. In Britain, copyright is based on the notion of ownership and its economic consequences, rather than authorship and its cultural implications. This particular division is an important reason why the drive to harmonize intellectual property rights within the European Union has yet to make substantial progress in the area of moral rights.86

Copyright and freedom in the “Digital Age” 45 The perspectives of developing countries on moral rights are equally distinctive and interesting. Legal theorists have often linked moral rights with the particular historical and cultural context of European Romanticism, and this viewpoint implies that moral rights may not be well adapted to the greatly divergent cultural traditions of the developing world.87 Nevertheless, the vast majority of developing countries have adopted moral rights provisions, citing as strong incentives the “prestige” associated with these rights and their cultural value.88 Perhaps in answer to the concerns of more traditional theorists, the approach of developing countries to moral rights is often highly innovative. Many of these countries have attempted not only to adapt moral rights to their distinctive cultures, but also to fashion them into effective tools of particular cultural policies.89 The main poles of the controversy surrounding moral rights may be expressed in terms of an American versus a European view, civilian legal tradition versus the common-law, and an industrialized versus a development orientation. In different ways, these three dichotomies underlying international moral rights protection all originate from the same point of fundamental tension. The ambivalence reflected in moral rights is perhaps most accurately expressed in over-arching terms as an opposition between commercial and cultural views of copyright. With the adoption of the TRIPs Agreement, the conflict between trade and culture has now become a competition of the future with the past. The character of the international copyright regime has changed. Moral rights are not only a casualty of this change – as illustrated by the difficulties of achieving an international standard for moral rights protection – but they are also a window onto the conceptual fault lines underlying the international edifice of copyright law as a whole. Copyright itself is caught between its past as a mélange of commercial concepts and cultural policies, and its future as an instrument of international trade.90 The conflict over moral rights is symptomatic of the fundamental contradictions underlying our modern concept of copyright. A deeper understanding of moral rights, and serious attempts to integrate them into the changing face of copyright law, will point the way towards resolving these persistent conflicts. What is even more significant, the presence of moral rights may also play a key role in assuring the future viability of copyright law as a whole.

Conclusion The future of copyright lies in reform. The well-publicized efforts of developing and “transitional” countries to bring their law into conformity with the requirements of the international community are, of course, one element of reform. However, the significance of reform is even greater than these processes. Reform must occur at the level of ideas; it must address the basic question of what purpose, if any, copyright law is to fulfil in the technological era. Its ultimate goal must be to achieve the transformation of our

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Copyright and freedom in the “Digital Age”

received notions of copyright, which, at least in the common-law world, have remained unchanged, in any fundamental sense, since the adoption of the Statute of Anne in 1710.91 At the present time, copyright has become equally controversial in both the advanced and developing countries. Although this tension is expressed in different ways in these parts of the world, countries and cultures on both sides of the technological divide seem curiously united in their resistance to copyright. In particular, the universal loss of moral credibility experienced by copyright law is striking. The issue is a grave one, and threatens to destroy copyright principles at the root: as a means of restricting knowledge, which is by nature quite free-flowing, the effectiveness of copyright has always depended on a psychology of observance by the public at large. In the era of digital technology, the psychological necessity underlying copyright has become pronounced, yet there is very little persuasive discussion of why copyright, in the twenty-first century, remains a good thing. In the search for a new way of looking at copyright, those who are interested in this field have a substantial advantage in being able to draw upon the experiences of a global community. The surprising beauty of globalization waits to be discovered in this sudden closeness of cultures that were once as distant from one another as stars. It seems that the answers to copyright’s current difficulties are not to be found in traditional legal models. Rather, the future of copyright, ironically enough, will depend in large part on considering the experience of non-conforming constituencies – developing and transitional countries, aboriginal peoples, the open source movement, creators of new works in technology and the arts. Among these other sources of diversity, transitional countries deserve a prominent voice. The post-socialist experience is utterly unique, and it offers the international legal community at least one extraordinary opportunity: a chance to reconsider the logic of international trade, and in particular, to reassess the controversial entanglement of trade law with the world of ideas.

3

Copyright law in transition

Since the end of European socialism, law reform has become a characteristic feature of the transition in Central and Eastern Europe.1 Russia alone has seen two successive waves of reform – the first, in the early 1990s, following the final collapse of the Soviet government, and the second, in the middle of the decade, with a view to revising the hasty and awkward measures initially adopted under political duress.2 Yet another phase of legal transformation now appears to be underway in the post-socialist world. While the first period of reform was characterized by a general preoccupation with constitution-writing, leading one lawyer to comment that “Eastern Europe . . . has become the world’s most exciting laboratory of constitutional reform,”3 the focus of the current movement is on ever more sophisticated reforms to “private” law.4 Among the most important of these new areas of law reform has been the field of intellectual property rights, where reform primarily reflects the need to implement new standards that will achieve conformity with the international intellectual property regime established at the WTO.5 In post-socialist countries, systems for the protection of works of the mind have historically diverged from both international norms and the “model laws” found in America or Western Europe. The disparity has become pronounced in recent years, and reflects a striking contrast between rapid legal development in Western countries, a counterpart of technological expansion, and the stagnant last days of the socialist regimes. Accordingly, the new international approach to intellectual property rights has meant a need for far-reaching changes to the treatment of intellectual property after socialism.6 If the process of modernizing intellectual property systems in the postsocialist world has been broad and comprehensive in terms of legislative reform, it has been surprisingly weak from the perspective of policy development. Ex-socialist countries uniformly see their integration into international economic life, primarily through participation in the WTO, as an overwhelmingly important goal. Engagement with the international economy holds the glittering promise of escape from the privations of socialist rule. As a result, reform of intellectual property rights in the post-socialist world has

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Copyright law in transition

largely become a means to an end. It represents the struggle to re-make domestic standards in the image of international requirements, with the ultimate objective of implementing “enforcement measures” that will effectively discourage “piracy” – the unauthorized copying and use of books, music, and technology from the West.7 These problems are typically dealt with as selfcontained and technical issues, capable of resolution through legislative measures that are straightforward, at least in their adoption, if not in their practical realization. This over-simplification of intellectual property issues is disturbing and, ultimately, inaccurate. Even a cursory survey of intellectual property-related debates in international circles illustrates the breadth of social issues that may be implicated where rights in creation and innovation arise – for example, literacy and access to education, freedom of speech, and the availability of life-saving medications.8 Yet the fundamental question of what role should be fulfilled by new intellectual property laws in societies emerging from socialist government has remained at the outer fringes of reform. In a world where prosperity is increasingly intertwined with technological prowess, it is apparent that intellectual property rights are likely to have far-reaching implications for life after socialism. The contrast between today’s perspective, 15 years into the post-socialist transition, and the expectations immediately following the collapse of the Wall is striking. At the end of the socialist era, many informed observers thought of socialist countries as essentially modern and developed societies, except that certain aspects of industrial growth were retarded due to the inefficiencies of socialist economic planning. Similarly, it was believed that the lifting of “totalitarian” restrictions on citizens’ speech and actions would somehow allow democratic government to be restored “naturally.” The experiences of the past decade suggest that the reality is more complex. The countries of the region vary greatly in their levels of economic and political development, and progress towards greater prosperity and social stability has been far from uniform. Eastern Europe is a region of great cultural and social diversity, a fact that was masked from outside eyes for most of the twentieth century by the façade of socialist homogeneity. Cultural variety implies a range of new and strange environments in which accepted legal models must now attempt to take root. More than a decade after the dissolution of the Soviet Union, the “transition” is not yet over; in some countries, at moments of crucial tension, the transition itself has come into question, with the unexpected and, to Western eyes, incomprehensible resurgence of socialist values and socialist politics.9 In this volatile and unfamiliar context, meaningful law reform cannot be confined to the technical problem of how to incorporate new norms and foreign models into the postsocialist legal framework, exhausted by ideology and power politics. Instead, the “transition” cannot fail to evoke the fundamental problem of how law is related to social change. With respect to intellectual property rights, the

Copyright law in transition 49 considerable technical difficulties of legislative drafting and the attempt to create institutions for implementing the new laws are additionally complicated by the economic, political, and essentially, cultural problem of how the new intellectual property laws will relate to post-socialist transformation. Post-socialist countries are in need of a new approach to reform. A new model of copyright law must attempt to address at least two distinct, though closely related, needs: guidance in the process of copyright reform, followed by the deeper and longer-term question of the appropriate role which copyright law must seek to fulfill in these societies. In particular, copyright cannot escape the fundamental challenge experienced by law, as a whole, in the post-socialist world – the need to reconcile its special logic and functions with the comprehensive reality of social transformation in the region. While there may be many facets to copyright law in the postsocialist world, the underlying reality of the transition to democracy is undeniable. An important part of the copyright reform process after socialism will therefore lie in the ability of reformers to understand copyright law in its special relationship to fundamental political change. Successfully placing copyright in its context, like a master jeweler setting a gem, is likely to be a key factor in bringing the color of moral credibility to copyright after socialism, and making it an effective vehicle for the progress of the Digital Age in this part of the world.

Intellectual property after socialism Ex-socialist countries have distinctive and deeply rooted needs in relation to intellectual property. In some instances, international levels of protection may well correspond to domestic requirements. Often, however, a conflict arises between the domestic needs of transitional countries, on the one hand, and the requirements of the international copyright regime, on the other. In these circumstances, the implementation of Western-style intellectual property standards may not be compatible with their underlying needs. Rather, the adoption of international standards may actually undermine development and democratization in the region. Special policy concerns related to intellectual property law in a “transitional” environment arise in at least three areas: the role of “intellectual property” in the process of democratization, the status of culture after socialism, and the problem of technological backwardness. In the first instance, the creative and innovative variety that is designated by the term “intellectual property” is an especially important resource for post-socialist countries. Intellectual property represents human potential which, in many cases, was unable either to express or to realize itself under socialist rule. Since the collapse of socialism, the countries of Central and Eastern Europe have experienced an intense need for the products of intellectual activity, creative and innovative work that will help their societies to progress towards greater

50 Copyright law in transition openness and prosperity. At the same time, this region enjoys a rich intellectual tradition, including excellence in mathematics and the sciences, which now has the opportunity to be revived for the Digital Age with a relative minimum of capital investment – a progression whose potential has already been illustrated by India, whose software industry now rivals that of the United States. The transitional need for creation and innovation transcends the issue of access to knowledge; it also invokes a need to revive the capacity of people to engage in creative activities, after a long period of time when creativity was strongly discouraged, either actively or implicitly, by state policy. Indeed, this aspect of post-socialist development is likely to be one of the keys to the region’s future. Intellectual property rights therefore have a dual significance for transitional countries. They must not impede the public from having adequate access to new works, but they must also provide an effective system, in traditional copyright parlance, of “incentives to create.” Considered closely, the question of incentives is surprisingly complex: not only does it signify the provision of economic incentives, but it also encompasses larger issues, such as adequate legal protection for one’s personal rights, and protection from state persecution of personal expression, or from disadvantageous official exploitation of works or inventions. As a second issue, transitional countries must confront the problem of cultural reconstruction. In socialist countries, culture endured a long period of oppression. In some of these countries, cultural oppression simply meant the neglect of their existing heritage; in others, it involved the active and systematic modification, mutilation, or destruction of culturally important works, accompanied by a simultaneous quest to destroy the reputations, personalities, and even physical existence of creative authors.10 Post-socialist governments must therefore address the problem of restoring rights and reputations to the works and authors of the past. This process is one of ongoing historical discovery and revision, and it is likely to continue into the indefinite future. In addition to cultural issues, a third problem confronting post-socialist reform is the fact that access to knowledge and technology that are internationally current is crucial for the success of the transition. By bringing their copyright laws into line with the TRIPs Agreement, transitional countries hope that they will be able to assure themselves of access to current technologies, particularly those that originate in the United States and Western Europe. However, their need for technology is intense, while their ability to pay for the rights to use new technologies is limited. In view of the complex demands that intellectual property policy in transitional countries must satisfy, it is hardly surprising that a successful approach to law reform in the region has proved difficult to achieve. Indeed, many of the shortcomings of the past decade of reform reflect difficulty in attaining a broader perspective on the range of issues involved. However, it is certain that the achievement of lasting legal change in post-socialist countries requires a fundamental change of direction. A new conceptual approach

Copyright law in transition 51 must be firmly anchored in the understanding that reform should not be driven primarily, or exclusively, by the requirements of the international copyright regime. Rather, reform must respond directly to the special needs of ex-socialist countries.

Copyright law in transitional countries In their dealings with copyright, socialist countries drew heavily on their heritage of European civil law: in many ways, socialist provisions on copyright reflected the legal traditions of Western Europe, including, notably, consistent recognition for the moral rights of authors.11 However, socialist law also developed a distinctive approach to copyright. The socialist approach reflected the unique cultural perspectives of Eastern European countries, and, superimposed upon them, the political ideology of socialism, which influenced the character and content of the law. After the collapse of socialism, copyright in Central and Eastern Europe became dependent, to an unprecedented degree, on international standards. The pressure to harmonize their laws with the international system represented by the WTO is shared by post-socialist countries with other parts of the world. However, due to their special circumstances, the implications of the international system for these countries are particularly complex. In addition to the pressure of the WTO, formerly socialist countries are susceptible to the direct influence of the United States in international copyright matters – and indeed, the American influence seems to be felt at the heart of the reform process, helping to explain the difficulty of returning copyright to post-socialist civil codes, or a special eagerness to join the WIPO Internet Treaties.12 These countries also face special requirements derived from their increasingly close association with the European Union. After the WTO, the European Union is a highly influential force affecting the development of copyright in post-socialist countries. It is likely that many countries of Central and Eastern Europe will be joining the European Union over the next decade, including a number that have already been admitted as of May 1, 2004.13 The EU has clearly indicated that their copyright standards will have to be aligned with the European harmonization directives. Its influence is also felt in Russia, where hopes of future free trade with the EU hinge on the implementation of adequate measures for copyright protection.14 In view of this international dimension, it would be difficult to exaggerate the scope and extent of copyright reform in Eastern Europe. In most countries, the law has been revised to the point where virtually nothing remains of the pre-transition legal framework. The involvement of international expertise in these projects has also been extensive and, at times, controversial. For example, law reform has occasionally taken the form of literally translating provisions from American or, occasionally, European law into local languages.15

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A question that arises is why such extensive reform has become the norm in relation to copyright. As noted above, all formerly socialist countries had copyright laws during the socialist era, and, with the notable exception of Russia, a number of them were also members of the Berne Union, based on the internationally accepted 1971 Paris text of the Convention.16 Indeed, Berne participation not only placed these countries ahead of Russia, but it also signified a nominally greater commitment to international copyright than that of the United States – interestingly, both countries were members of the less demanding Universal Copyright Convention (UCC), but did not accede to Berne until the last years of the twentieth century.17 It would therefore be reasonable to assume that copyright law in this part of the world bore some resemblance to the international shape of the law, and that post-socialist reform should have involved a much simpler and less invasive treatment of copyright. Increasing the duration of copyright protection and incorporating new provisions to deal with technological change should have been sufficient. However, there are at least three important reasons why considerations like these have not limited reform. First, socialist copyright laws, even when they were superficially compatible with the Berne Convention, bore the stamp of socialist policies concerning authors’ rights. This was certainly a problem in relation to economic rights, but it also affected moral rights. As Mihály Ficsor pointed out in 1983: [T]he question that may emerge is where to place any socialist or nonsocialist elements of copyright if the most important rights and their limitations are determined by precise provisions of the [international] conventions. The interpretation of the conventions is the right of the member States. So even by way of interpretation certain differences may and do occur and that is influenced – among other factors – also by the nature of the legal systems. However those differences represent only some isolated elements of copyright law. There is the possibility of having also provisions which are not compatible with the conventions, but those can prevail only for internal situations (for the relations between national authors and users, where no international obligation is involved).18 This passage is particularly interesting because Ficsor draws attention to the limited influence of international copyright provisions in socialist countries, while he appears reluctant to accord this recognition its full significance. The caveat appears in the last sentence, where he points out that socialist copyright provisions will inevitably dominate the lives of domestic authors, due to the restricted reach of international standards. In other words, socialist countries did not hesitate to practice a “double standard” in their approach to copyright, with differential regimes for international and domestic authors. This concern explains the rather strong reaction of Western countries to the decision of the Soviet Union to adhere to the Uni-

Copyright law in transition 53 versal Copyright Convention in 1973; as Corien Prins observes, “[s]everal observers feared that the Soviet legislature would use the ratification just for the purpose of suppressing the writings of dissidents.”19 Despite the overlay of international agreements, copyright at that time remained a territorially based right.20 Ficsor goes on to make a second point on the interaction of international and socialist copyright law. He argues: “Much more important is the fact that the [international] conventions regulate only the rights themselves and do not contain any provision about the utilization of those rights.”21 Here, Ficsor appears to be emphasizing the contrast between the letter of the law and its implementation. International conventions allowed member countries a degree of flexibility in implementing their provisions in national legal systems; they did not include coercive mechanisms for the implementation of rights, but were based on the good faith adherence of member countries; and they could only assure the rights of foreign nationals in member countries, without imposing standards for the treatment of domestic authors. Due to these features of the international copyright system, socialist membership in international conventions did not necessarily mean everything it could have meant. The contrast between socialist legislation and its implementation in practice has been another major impulse driving post-socialist law reform. Since the socialist provisions had often not been tested in practice, they may have been perceived as unwieldy, and potentially difficult to implement or enforce. Moreover, socialist copyright law may have suffered from the same internal contradiction between word and meaning that afflicted public law in the Soviet era. For example, extensive constitutional norms and human rights were enshrined in the laws of Soviet Russia, while Soviet citizens often lived in extreme conditions of oppression, even in terror for their lives.22 These two concerns relate to the movement out of socialist legality; a third and most pressing reason necessitating intellectual property law reform in the region has been the movement towards democracy, and the corresponding resurgence of domestic needs related to creativity and innovation. This is not only an issue of making new technology and innovation more accessible to the citizens of post-socialist countries, an urgent issue in its own right. Rather, formerly socialist countries face the subtler challenge of reviving the capacity of their own citizens to participate actively in development, growth, and change. As noted above, this task will not only involve the issue of reviving incentives for enterprise, an accepted policy basis for copyright law, but it will also require the removal of obstacles, such as fear of discovery and persecution, from the creative process.

Approaches to reform: a critique If any single factor can be identified as a fundamental flaw in post-socialist intellectual property reform, to date, it is probably the absence of a sense of

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place. The problem may seem simple enough at first glance, but it merits closer examination. Twentieth-century advances in theoretical physics should probably shoulder much of the blame for making the idea of an objective reality of time and place into something absurdly complicated.23 Einstein’s papers of 1905 and 1916 on his theory of “relativity” introduced a disquieting instability into the human psyche, and pointed to the impossibility of achieving objectivity in our perceptions of space and time. They were followed by physicist Werner Heisenberg’s famous “uncertainty principle” of 1927 – the rule of quantum mechanics that maddeningly identifies a moving object equally as a particle or as a wave, depending on the circumstances of the observer. In the context of law reform, the process is plagued by uncertainty about where post-socialist countries should be situated. The problem is one of both time and space: reform is not clear as to what place post-socialist countries occupy among the world’s different countries, cultures, and legal traditions, nor can it claim to draw upon an awareness of the historical moment in which they find themselves. In relation to the problem of cultural space, the fault lies with the international community. Approaches to law reform in the region have generally focused on the manifest superiority of the Western models which reformers hope to emulate, with little analysis of the new models from the special perspective of post-socialist reform.24 The issue of an appropriate moment in time is more complex, as there are a variety of reasons why post-socialist reformers and their international advisers would both prefer not to carry the burden of history in their present work. An innovative approach to reform must address this fundamental problem of space and time directly, and build from an exploration of historical and comparative insights on reform. The two approaches work in concert to bring a new perspective to reform. The comparative angle is of very great value. By attempting the difficult challenge of situating postsocialist countries in their appropriate international context, reformers will be able to identify both shared points of concern, where international experience can benefit transitional countries directly, and the unique features of transitional legal systems that make reform an especially complex process. The comparative perspective is an important contribution brought to the reform process by foreign experts. In addition to providing post-socialist reform with new models of intellectual property rights drawn from international experience, the conceptual framework that it offers may also be of direct help to reformers from inside the post-socialist tradition. It can help to bring a welcome sense of distance and clarity to those who are intensely and personally involved in the high-stakes gamble of national transformation. A historical approach to present-day law reform provides an essential complement to the comparative perspective. By placing reform in its historical context, it becomes possible to achieve insight into today’s policy

Copyright law in transition 55 debates. Clearly, historical analysis is an essential part of understanding the nature of socialist intellectual property regimes – an important legal legacy, and, inevitably, a constituent element of the present legal framework in the region. However, historical analysis does not help us only by clarifying our understanding of the past. A closer look at the history of copyright in post-socialist countries reveals historical patterns. In Russia, for example, reform has occurred in cycles over the past two centuries, and many features of the current reform process represent, in their turn, the recurrence of cycles from the past. Illuminated by the past, present-day reform assumes a new aspect. It may be easier to develop approaches to reform that have learned the lessons of the failures and successes of past reform efforts, and to understand better the broader climate of social change which often surrounds the experience of law reform in the socialist and postsocialist world. The absence of serious historical analysis, to date, is probably among the more serious shortcomings of reform. It encourages the demonization of socialist law, a false and counterproductive posture, and it also prevents current reform initiatives from responding to genuine historical needs. Post-socialist copyright in historical context Dwelling on socialist history might seem paradoxical at first glance; and, indeed, reformers have so far preferred to deal with the socialist past by burying it. After all, what is the relevance of past legal approaches in an area that reformers hope to see radically transformed in the future? It is perhaps not surprising that copyright reform to date has been the relatively straightforward exercise of abolishing old provisions and enacting new ones. The Russian Copyright Act of 1993 is a case in point.25 In many cases, the old laws were outdated and out of tune with current developments, and it may have been easier to introduce new law than to reform old provisions.26 However, it is apparent that the old laws were also discarded on the basis of an equally influential implied inadequacy, a barely concealed and perhaps inevitable aversion to all things Communist. This superficial approach to intellectual property reform means that new intellectual property laws often rest uneasily on a deep and potentially turbulent surface. Historical necessity makes the shape of post-socialist intellectual property laws reactionary in essence. Current laws are defined by their separation from the socialist past, what it was in reality, and what the present governments remember it to have been. However, like old paintings that have been covered over with new images, time and wear may start to strip away the new layer to reveal the unknown shapes beneath. The reemergence of this complex past could have unforeseen and unresolved consequences, presenting obstacles to legal progress. Albert Schmidt emphasizes the importance of recognizing and studying socialist law as a legal-historical phenomenon in its own right:

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Copyright law in transition Cataloging Soviet and post-Soviet failures does not . . . eradicate the history of the past three-quarters of a century. A Soviet Union with a novel system of law did, in fact, exist. This nominally socialist state was structured in accord with the most powerful ideological legacy of nineteenth-century industrialism. Its civil law embodied this ideology in both its verbiage and broad-based economic law, which were crafted onto a centuries-old Roman law.27

At least three different types of problems may result from the absence of historical continuity in intellectual property reform. First, an imperfect understanding of past legal principles means that the intellectual property culture in which the new laws must function is poorly understood. Socialist provisions and their application over most of a century have surely left a mark on the industries, processes, and products of intellectual property, with which reforms will have to contend. Second, most post-socialist countries have identified themselves as civil law jurisdictions, in keeping with their pre-socialist legal traditions.28 However, it is not at all clear that the historical distinction between civilian and socialist legal systems is without consequence for reform in formerly socialist jurisdictions.29 The shape, content, and purpose of socialist legal codes was substantially different from their counterparts in the civilian systems of Western Europe. For example, the extensive treatment of economic policy through the framework of law, or the extreme emphasis on legislation at the expense of judicial interpretation, are important points of departure from Western European practice. The legal heritage of postsocialist jurisdictions is not a “purely civilian” one.30 Finally, and somewhat disturbingly, the uncritical dismissal of past approaches to copyright means that the legal thinking which they represented has been discarded without a proper assessment of their continued relevance to the new system. There is an instinctive assumption that principles of socialist law do not belong in a democratic legal regime. Additionally, long-established legal principles and provisions that have become tainted by their association with Communism may need to be discarded for psychological reasons – for example, the basic rights in the Stalinist Constitution.31 Nevertheless, a systematic approach to reform demands that, where legal principles have proved their worth in the past, they should not be dismissed out of hand without a consideration of their potential value in the future. Comparative law: the strengths of an outsider’s view The revision of intellectual property laws in Central and Eastern European countries is by nature an exercise in comparative law. The primary objective of reform is to evaluate domestic legal provisions against foreign and international models, with a view to reshaping domestic laws according to inter-

Copyright law in transition 57 national standards. The internationalization of national laws is part of a more fundamental transformation of one kind of legal system, the “socialist” system, into another, most probably a Western European-style combination of civil law and market economy. In the field of copyright law, the new model to which reform aspires has a strong American flavor. Not only is the United States an important political force in the region, but its copyright law is widely perceived as one of the most technologically sophisticated in the world – a natural reflection of America’s unsurpassed technological brilliance. Not surprisingly, foreign legal experts, and mainly Americans, have been prominent advisers to post-socialist countries on the new shape of intellectual property law in the region.32 It is difficult to say how much of the foreign flavor of new intellectual property legislation is due to their direct influence, and how much is a result of the collapse of domestic legal systems, most dramatically, in Russia. The approach to intellectual property rights in post-socialist countries can be described as a process of legal “transplantation.”33 Those who are involved in reform hope to bring international models to Russia and make them successful on international terms within the Russian environment. However, the notion of making a successful “transplant” would seem to suggest a process of adaptation, as well. Measures enabling a transplant to be successfully integrated into its new environment could be quite complex; the new environment must provide the necessary nourishment for the transplant to grow and develop, and the transplant itself may have to evolve special characteristics to survive in hostile conditions.34 A more accurate way to characterize the pattern of post-socialist law reform may be as a “legal export.”35 The idea of “exporting” intellectual property rights seems to convey more effectively the somewhat crude, unsystematic, and commercially driven basis of intellectual property reform after socialism.36 In intellectual property reform, the fundamental differences between Western legal models and post-socialist legal culture have remained largely unarticulated. The adoption of new intellectual property laws in the post-socialist environment has not been matched by the creative development of conceptual thinking related to intellectual property rights. The comparative law exercise is therefore badly realized, not primarily because of the practical conduct of reform, but because of the underlying conceptual limitations of accepted comparative approaches in this context. As Ugo Mattei observes: [T]he real problems faced by intellectual globalization are found in domains where very different conceptions [of law] clash with each other. In such domains transplants take place, but the phenomenon is better captured by the notion of legal imperialism. The transfer of knowledge, rather than being a pattern of communication and exchange between different legal systems, becomes a one-sided exportation of legal rules

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Copyright law in transition and concepts that usually end up being rejected, or creating intellectual dependency. The existence of exporting and importing . . . legal cultures is a fact. It is also a fact . . . that this one-sided attitude winds up with . . . rather serious problems.37

Mattei’s analysis of legal imperialism is an apt description of the approach to intellectual property law in post-socialist countries over the past decade. Problems in developing, implementing, and enforcing intellectual property rights can be traced to the unsophisticated treatment of legal reform. Foreign experts appear to have a poor understanding of indigenous legal systems, how they developed under socialism, and how socialist legal frameworks were related to political ideology, social values, and culture. The consequences of an “imperialistic” outlook include an inability to evaluate legal systems and norms objectively. The logic of the importing legal system becomes inaccessible to the adviser, and the methods of reform which he advocates are therefore narrow, incomplete, and inadequate. For Mattei, the conceptual weaknesses of traditional comparative scholarship may be traced to an outdated approach to the classification of legal systems. Western comparative law has traditionally identified the commonlaw and civil law systems as the two main types of the world’s legal systems, with socialist law as a third category, and a “residual” category of “other” systems.38 However, this classification system may lead to “the marginalization of . . . ‘radically different cultures’ from the mainstream of comparative legal research.” For example, by classifying non-Western systems together as “other,” comparativists fail to recognize the distinctiveness of non-Western legal systems and to explore the intellectual significance of these differences. Mattei identifies some of the historical reasons why he believes this approach to classification should be reconsidered. Interestingly, he links post-socialist reform with post-colonial modernization: Current classifications in legal families, in addition to being largely Euro-American centric, need to be revised because the geo-legal map of the world is substantially different. . . . The first and most obvious difference is due to the “fall” of Communist ideology in Central and Eastern Europe, an event which called into question the “socialist law” family. The second less obvious, but equally important, difference is due to the “success” of the same political system in China, and consequently increased importance of legal sinology among comparative disciplines. The third relevant factor is the increased importance and the extraordinary progress of Japanese law in the past 30 years. The fourth difference is due to the increasing awareness on [the] part of the Islamic world of its cultural, and consequently legal, peculiarities. The independence achieved by the entire African continent represents the fifth historical development which comparative law must take into account.39

Copyright law in transition 59 The problems with foreign involvement in post-socialist intellectual property law do not mean that foreign expertise is irrelevant to reform. On the contrary, the assistance of informed outsiders is indispensable for postsocialist countries. The distinctiveness of post-socialist legal systems may well be most clearly apparent to outsiders, who are not caught within the trauma of change in the region. Like Rousseau’s législateur, their personal distance and lack of involvement in political change should enrich the reform process by a disinterested and objective approach.40 Their special contribution to the reform effort may be a degree of clarity in identifying the unique features of post-socialist legal culture and the legacy of socialist law, the environment to which new laws should be properly adapted. At the same time, they are in a position to communicate the essence of the favored foreign models to local reformers. When combined with the knowledge and passion of legal reformers from within the post-socialist framework, the intellectual and cultural distance of foreign advisers can contribute to the formation of the most creative and effective future laws. However, in relation to intellectual property reform, the sensitive involvement of comparative lawyers is not enough. The complexity of law and policy in this field must be given its due, and advisers with specific expertise in intellectual property are most likely to be able to comment on the problems and difficulties of intellectual property law, not only within the country building a new system, but also within the exporting country that serves as a model.41 A new approach to intellectual property reform will require a reassessment, not only of the factors determining the actual shape of the law, but, in more fundamental terms, of the objectives and goals of intellectual property rights after socialism. The arrogance and self-interest of the international intellectual property community, what Mattei aptly calls the “nothing to learn attitude” of “exporting legal cultures . . . against importing systems,”42 is at fault. Arrogance is a cultural tradition; self-interest is inevitably involved in the internationalization of intellectual property rights, since advanced industrial economies are becoming increasingly dependent on intellectual property for wealth creation.43 However, the failure to study the special features of intellectual property law in transitional countries will lead to losses that are felt, not only by transitional and developing countries, but also by the international community as a whole. The new intellectual property regime established by the TRIPs Agreement continues to generate great controversy, and its logic is far from being universally accepted. The important area of moral rights remains totally unresolved in the TRIPs system, leading to confusion.44 An open-minded exploration of law in post-socialist countries may help to resolve international conflicts over intellectual property rights. The efforts of informed observers to assess the strengths and weaknesses of foreign dealings with intellectual property can bring new strength, sophistication, and subtlety to international models in this field.

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The dimensions of reform: three perspectives The combination of a comparative and historical mindset leads to an immediate insight of value into post-socialist reform: law reform in the region is essentially a problem of development. To varying degrees, all of the postsocialist countries are in the midst of a process of development, and, given the diversity of cultural, economic, and even political circumstances in this large group of countries, different dimensions of development will take priority in different countries. Intellectual property rights, and copyright in particular, are implicated in three aspects of post-socialist development: economic growth, cultural liberalization, and political transformation. Transition and economic development New intellectual property standards in post-socialist countries have been adopted from international models, often with little analysis of the potential implications of these foreign provisions for societies in transition. As William Butler comments: [I]t must be elementary comparative law that no one attempts to transplant wholesale one legal culture into another; that one works in the language of the recipient legal system; that one has a thorough command of the recipient legal system. As regards the former Soviet Union this is rarely the case, to the considerable disadvantage of everyone concerned. Law reform assistance to this day remains substantially uncoordinated, underfunded, and rendered by individuals and institutions who are not adequately equipped to deliver the product which is required.45 In fact, intellectual property law in Eastern Europe must satisfy two competing and potentially conflicting kinds of demands: those arising out of domestic policy objectives, and those flowing from international requirements.46 As in every legal system, intellectual property rights in postsocialist countries will favor certain kinds of interests at the expense of others; achieving the appropriate balance of rights is one of the important tasks of policy-makers. However, the reality of the post-authoritarian transition means that the appropriate balance of rights in the transitional environment is almost certain to differ fundamentally from the equilibrium accepted in Western jurisdictions. Since socialist governments relied on ideology as their primary means of maintaining power, the rights of authors and “users” of intellectual property were balanced, not only against one another, but also against the overpowering political interest of the state in controlling and manipulating information, often wielding it against those who produced or created it.47 At the same time, intellectual property law must accommodate the reality of a deficient economic and social legacy in the wake of socialist rule.

Copyright law in transition 61 In economic terms, the developmental level of post-socialist countries is significantly behind that of the West; the role of intellectual property rights in societies where economic growth is urgently needed must be determined. Here, too, the types of intellectual property protection and the balance among different kinds of intellectual property rights may be quite different from norms that are accepted in the West. In this tension between domestic and international priorities, transitional countries closely resemble developing countries.48 Like developing countries, the societies of transitional countries suffer from a number of historical disadvantages. While the problems of developing countries tend to be viewed primarily through an economic lens, the subtleties of development issues in transitional countries are more readily apparent.49 Most developing countries must endure a daily struggle in meeting basic needs, such as feeding their populations. In most ex-socialist countries, impoverishment is less extreme, and economic problems can often be traced directly to the political mismanagement of socialist leaders.50 Development problems in exsocialist countries are recognized, above all, as a matter of political modernization. Intellectual property law is among the most powerful modern means of dealing with information, knowledge, and culture. As such, it must fulfil objectives of information and cultural policy at the domestic level. At the very least, it should not impede the implementation of domestic policies. However, intellectual property laws must also meet the demands of the international harmonization and standardization of intellectual property rights, in order to enable active participation in economic and technological advances in the international arena. One of the most highly publicized aspects of the new international openness in transitional countries is the need to implement internationally viable intellectual property standards to help them attract foreign investment.51 The special needs of developing jurisdictions in relation to intellectual property require a sensitive legal treatment. In particular, development issues call for the achievement of an effective equilibrium between rights of control and rights of access, domestic policy objectives and international standardization, and, ultimately, intellectual property rights and other legally protected interests. These conflicts have historically been at the root of tensions between developing and industrialized countries over the appropriate international treatment of intellectual property rights.52 Developing countries have accorded great importance to rights of access, and they have sought structural flexibility in the application of intellectual property rights. In different ways, they have also raised concerns about the impact of intellectual property protection on human rights and culture.53 Now, transitional countries find themselves confronting similar questions about the nature of a workable equilibrium among diverse rights and interests within their post-socialist and democratizing societies. The virtual absence of empirical research on the relationship between intellectual

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property rights and development complicates this inquiry.54 At the same time, the need for a suitable conceptual approach to intellectual property rights in the context of political and economic development is an inescapable reality of post-socialist reform. The problem of intellectual property in developing societies is concisely expressed by N’dene N’diaye of Senegal: [L]e problème qui se posa . . . [aux pays en voie de développement après l’indépendence des puissances coloniales] fut celui de savoir s’ils devaient trouver à la base des droits de l’homme la même notion d’homme et si les exigences du développement se concilient avec la pleine application, en général, des droits que tous affirment solennellement dans leur constitution – et en particulier ceux relatifs à la propriété. . . . Les pays en voie de développement sont ainsi souvent contraints de n’accorder la priorité qu’aux entreprises visant à réaliser le développement de la société. Ce faisant, pour établir l’ordre et assurer le développement, d’aucuns relèguent au second plan la liberté et la justice, singulièrement la liberté dans l’acte de création et la justice dans la rémunération de l’auteur.55 It is clear that the relevance of N’diaye’s argument is not restricted to the countries traditionally thought of as “developing” over the past half-century; it applies equally to the “transitional” countries of today. The resemblances between them suggest that transitional countries can benefit from a comparison of their experiences with intellectual property law and reform in developing countries. Law reform and social change: copyright and cultural liberalization Intellectual property law in Central and Eastern Europe reflects the general disarray of law after socialism. Law reform has assumed a central role in enabling the transition out of socialism to occur smoothly. At the same time, the character of law has been altered fundamentally by the peculiarities of the transitional environment. Time, the “fourth dimension,” is a factor that transforms the ordinary significance of legal rules. Reform of intellectual property rights is conditioned by these unique historical circumstances. New law in this field, whether it originates with legislators, judges, or international conventions, must strive to meet the special requirements of historic social change.56

Copyright law in transition 63 The role of law reform in post-socialist societies Law reform, in one guise or another, has been an integral part of the postsocialist transition from its earliest days. New laws have played an essential role in transforming political institutions to cope with the disintegration of socialist governments. The public of formerly socialist countries also appears to have attached great moral significance to law reform. The development of new constitutions has become a characteristic way of reassessing political values, and allowing post-socialist politicians to affirm to their populations a solid commitment to democratic constraints on power.57 Law reform in the aftermath of socialism has fulfilled a number of important functions. It has brought a degree of legitimacy to the new political regimes, assured citizens of protection from governmental abuse of power, and provided an essential regulatory framework for economic liberalization.58 Legal reform has been driven by the apparently irrefutable logic that political and economic development after socialism must go hand-inhand with legal modernization. In some areas, such as private property and private contractual relations, the complete absence of relevant legal provisions has been a problem. In other respects, socialist law may have been adequate in strictly legal terms, but it had become morally discredited – for example, in relation to the protection of human rights and freedoms, and their expression in constitutional instruments.59 Interestingly, the importance accorded to law reform in Central and Eastern Europe is itself suggestive of a legal culture that has been profoundly transformed by the socialist experience. There is a curious element of historical continuity in the prestige and pervasiveness of reform after socialism. For example, as Schmidt points out, the Russian preoccupation with legal reform as an aspect of revolutionary change can be traced back to the October Revolution. Schmidt notes: “Lenin’s belief that ‘all law is public,’ . . . in itself is a ringing definition of socialist law, . . . and articulates one of the most unique features of Soviet power – its inseparability from politics.”60 The distinctiveness of the socialist mind-set in this regard presents a striking contrast to Alan Watson’s general observation: [T]he lesson of history is that over most of the field of law, especially private law, in most political and economic circumstances, political rulers need have no interest in determining what the rules of law are or should be . . . Rulers and their immediate underlings can be, and often have been and are, indifferent to the nature of the legal rules in operation. This simple fact is often overlooked; indeed, it is habitually denied . . . It demonstrates the general accuracy of the proposition that government is usually unconcerned with the precise nature of most of the legal rules in operation.61 In spite of its vast range of practical consequences, the intuition that legal change is an essential part of the post-socialist transition has not been

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informed by systematic or well-developed conceptual guidance. The relationship between law and the social transformation occurring in the region remains largely unexplored. The intuitive drive towards legal renewal has given rise to massive and complex legal structures, without, however, identifying a clear rationale and purpose behind them. On closer examination, law reform in formerly socialist countries appears to be driving at the creation of Western-style legal systems in Eastern Europe. This approach to law reform can be explained in two ways. In one sense, it is a purely pragmatic conception of the law: since formerly socialist countries want to structure their economic and political life to mirror Western norms, Western laws are presumably best adapted to this endeavor. In another sense, the collapse of socialist law has created a legal vacuum in post-socialist societies, and Western laws appear to be the “right” laws to fill it. The historian Francis Fukuyama notoriously announced the “end of history” after the collapse of Communist regimes in Central and Eastern Europe.62 The end of socialism signifies a deeper victory for Western values at many levels, including those that touch the law. Objective analysis now seems to demand that the existing laws of Western societies be universally recognized as the “best” laws. In attempts at reform, the model laws of successful Western societies may come closest to the ideal.63 The aggressively Western approach to reform reflects a situation of chaos and collapse in the aftermath of socialism. An important reason for the conceptual shallowness of Eastern European law reform has undoubtedly been the urgency of the situations which legal reform has had to confront in Central and Eastern Europe. Especially in its initial stages, the movement out of socialism was experienced as a political and economic crisis; in Russia, this has continued to be the case up to the present time. In these circumstances, Western norms have provided the hope of a quick and easy path towards stability. The ongoing process of transition in post-socialist countries suggests that a crisis-oriented approach to law reform is no longer adequate. The expectation of a rapid transition out of socialism that characterized the post-socialist euphoria of the early 1990s has had to be modified in the light of experience.64 Reformers can no longer afford to approach law reform as a matter of expediency and short-term efficiency. On the contrary, the movement out of authoritarianism has proved far more arduous than either the populations of Eastern Europe or outside observers could have anticipated. The question of whether law, in its own right, can contribute to political transformation in the region has become an increasingly important issue. If, indeed, legal modernization can facilitate the development of democracy, it has now become crucial to investigate more sophisticated approaches to law reform that may help to release the transformative potential of law in the region.

Copyright law in transition 65 Law in transition Over the past decade, post-socialist law reform has focused intensely on the present political moment. It has developed largely as a response to overwhelming political crises – the collapse of governments and ideologies, and the dissolution of an empire. As reform enters a more stable period, it is apparent that legal modernization involves somewhat neglected considerations of historical continuity. In a unique study on the phenomena of post-authoritarian legal change, Ruti Teitel emphasizes that the shape of new laws in post-authoritarian societies reflects the circumstances of oppression in the past.65 New laws are a response to the character of the old political regime; inevitably, they aim at rectifying the abuses of authoritarian rule. Once we understand the extent to which law reform is conditioned by the circumstances of authoritarianism, the reasons for law’s special importance in post-socialist countries become clear. In Western history, changes of regime have most often been accomplished by violent overthrow, with the discrediting of the old regime and its structures, and the dispossession and destruction of its leaders, ensuring a clean and permanent break with the past.66 In contrast, the contemporary “velvet revolutions” of Central and Eastern Europe have been less clear cut. Although the authoritarian past has been repudiated, its legacy remains a deep and ever-present undercurrent in post-socialist developments.67 While law in post-socialist societies must come to terms with an authoritarian past, it must also project forwards, into an increasingly free and open future. Here, too, the post-socialist understanding of law’s functions must be distinguished from typical perceptions of the law in stable, democratic societies. Of course, law in democracies is policy-driven in a variety of ways. However, the problem of developing policy for a future that aspires to depart fundamentally from historical tradition, and a longestablished economic and social order, brings a peculiar intensity to postauthoritarian legal reform.68 In this context, the very act of developing new law is premised on a belief in the transformative power of the law. New laws become part of the process of transforming society into a new shape, one based on new political values and newly acknowledged social needs. The dilemma of situating law reform in its appropriate historical context is captured by Ruti Teitel: Law is caught between the past and the future, between backwardlooking and forward-looking, between retrospective and prospective. . . . Transitions imply paradigm shifts in the conception of justice; thus, law’s function is deeply and inherently paradoxical. In its ordinary social function, law provides order and stability, but in extraordinary periods of political upheaval, law maintains order, even as it enables transformation. Accordingly, in transition, the ordinary intuitions and

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Copyright law in transition predicates about law simply do not apply. In dynamic periods of political flux, legal responses generate a sui generis paradigm of transformative law.69

However, Teitel’s characterization of the unusually dynamic quality of law in transitional countries as paradoxical seems incomplete. Teitel emphasizes that the apparent contradiction between stability and transformation occurs because law in transitional countries has come to signify change, rather than maintaining its traditional association with stability and continuity. However, the transitional problem has an additional dimension: it arises because the role of law in socialist societies differed fundamentally from its role in democratic societies. The oppressiveness of socialist regimes when it came to political and social freedoms did not occur in a legal vacuum. Rather, oppression occurred within a legal framework; law was an accepted tool of political power, available for use by the state and its agents against potential enemies. For example, Katharina Pistor identifies the need “to overcome the crudely instrumental use of law by the state and to rid the legal system of direct political influence.”70 In contrast, democratic societies are defined by the concept of law-limited power, whether in relation to private individuals, corporate entities, or the state. Law in post-socialist societies is itself in need of rehabilitation, and this is the fundamental difficulty confronting legal reform in virtually every field: the restoration of substance, values, and credibility to the law. Law in these peculiar circumstances becomes closely allied with moral values.71 Law reform in the post-authoritarian context is infused with a normative character that ultimately aspires to the moral transformation of civil society.72 The role of law and legality in the transition period is likely to have a lasting impact on traditional conceptions of the law. The new concepts of law that are generated by the historical movement out of authoritarianism and into a more democratic pattern of society will extend their reach well beyond the transition period, and are likely to affect both transitional countries and law in the international arena. In effect, the historical phenomena of the transition will transform law in their own right, leading to new legal models that should become a permanent feature of post-authoritarian legal culture around the world. From this perspective, the transition represents an exciting opportunity for creative thinking about the law. A new information regime The transition is a unique environment for intellectual property rights. Intellectual property law, too, is caught within the temporal continuum that affects law as a whole in the transitional environment. In the case of Russia, intellectual property rights are influenced both by the Soviet past, and by a more remote, Tsarist legacy. At the same time, the current Russian adminis-

Copyright law in transition 67 tration confronts the task of crafting intellectual property policies that will facilitate the development of a fundamentally different future in Russia. The “transitional” difficulty facing intellectual property rights in Russia is the movement away from a certain kind of authoritarian government based on ideological control, where the manipulation of knowledge, information, and culture was the chief means of maintaining political power and legitimacy,73 to a society based on ideals of intellectual and expressive freedom, and ideological diversity. The legal framework for controlling these intangibles may be understood as an “information regime.” The movement out of an authoritarian system of information management is an important part of the transition process. Russia’s new information regime must aspire to compatibility with democratic institutions and values.74 Intellectual property law is an increasingly prominent feature of information policy. New intellectual property laws will have to respond to concerns about the protection of intellectual freedom, the encouragement of creativity and innovation among long-oppressed populations, and appropriate limitations on the power of the state to control information and knowledge – problems which may not be in evidence to the same extent in other jurisdictions. For example, modern copyright provides for the strong protection of individual rights of authorship, both in their proprietary and personal dimensions, in a way that was not possible, for ideological and practical reasons, within the Soviet legal system.75 In dealing with the legacy of intellectual property under Soviet rule, Russia’s reformers must strive for a sense of historical coherence. Post-Communist law may depart fundamentally from the legal norms of the Soviet era, but it must also respond creatively to the problems and failures of that era. By confronting these issues of information policy, intellectual property law can make a valuable contribution to legal modernization. The post-socialist treatment of intellectual property rights should attempt this project on two levels. First, intellectual property law in the transition should aim to ensure that information is protected from manipulation and abuse, particularly by the state, but also by private entities and individuals against one another.76 Specific concerns from the past that intellectual property law should address are rights of privacy, access to information, protection for broadcasting and communications media, and the rehabilitation of creative authors and intellectuals who suffered censure in the authoritarian period. Copyright law has a role to play in all of these areas, especially in relation to the individual rights of authors. Second, revised intellectual property laws should reflect the aspirations of post-socialist societies for the future, and ensure that the information policies of post-socialist governments help to further political, social, and economic development. The new laws must demonstrate their practical effectiveness in building an appropriate framework for liberalization, but they must also seek to recover the moral stature that was compromised by the degraded legal practices of authoritarian states. Indeed, the importance

68 Copyright law in transition of restoring moral authority to intellectual property rights should not be underestimated. Rights for creators can have a moral and ethical force in the post-authoritarian context that may not be immediately apparent in countries where the large-scale repression of creativity is unknown. Copyright and political transformation: the role of authors’ rights in democratization Intellectual property rights are involved in the transition from a restrictive and highly politicized information regime under authoritarian rule to a democratically informed treatment of knowledge in the transition period. How can copyright law help to build a democratic attitude to knowledge in post-socialist societies? Copyright law has long been viewed primarily as a technical field. This is due in large part to its close association with creative and innovative work, and the technologies supporting its development and dissemination. However, the technical aspects of intellectual property rights should not obscure their role in expressing social values, especially those related to creativity. The failure of post-socialist law reform to recognize and explore the values built into Western-style intellectual property protection is a serious shortcoming of the reform effort. In particular, reform should consider the possible impact of these values on democratization in the region. Through the dissemination of values about creative expression, copyright law can make a positive contribution to democracy, in both conceptual and practical terms. Certain aspects of copyright values are highly relevant to post-socialist reform. Through the creation of incentives for creative and innovative work, copyright seeks to promote individual creativity and, depending on the nature of the creation, entrepreneurship.77 Copyright seeks to protect the individual rights of authors in their creative expression, emphasizing the importance of the creative works themselves. Implicit in copyright is also a basic desire to protect the human rights of authors, reflected in the protection of both authors’ economic and personal rights through copyright law.78 Post-socialist reform of copyright law has been approached primarily as a matter of economic policy. The close connection between copyright, international trade, and foreign investment has largely determined the shape of the new copyright provisions.79 At the same time, the relationship between copyright and democratization in Eastern Europe has not been explored in any depth. A more careful consideration of this relationship is important for understanding the extent to which intellectual property rights may be implicated in political development. A democratically aware approach to intellectual property rights may improve their uncertain status in postsocialist societies. The development of the TRIPs Agreement has recently led some scholars to consider the implications of increasingly powerful intellectual property

Copyright law in transition 69 rights for political change. One school of thought argues that copyright is by its very nature an expression of democratic values. On this view, the adoption of the copyright norms in TRIPs by diverse countries around the world inevitably signifies a liberalizing trend. As Marci Hamilton argues: It is no accident that intellectual property norms are spreading worldwide at the same time that totalitarian regimes are falling. A people must value individual achievement and believe in the appropriateness of change and originality if it is going to concede to and adopt a Western-style intellectual property regime. Indeed, there is an intimate link between respect for individual human rights and respect for a copyright system that values and promotes individual human creative achievement. . . . The encoded message within TRIPS is that change, creativity, and originality are positive goods.80 The connection that Hamilton draws between copyright and the social value of individual creativity is appealing. However, she goes on to argue that TRIPs, which imposes strict and rigid protections for intellectual property rights on member countries, is a form of “freedom imperialism.”81 This choice of expression is unfortunate: in its application to developing countries which are struggling to bring their intellectual property regimes into line with TRIPs requirements, it seems patronizing and devoid of nuance. Indeed, the argument that TRIPs will bring about greater liberalization and freedom in relation to knowledge through coercion – by the imposition of its Western-style, advanced norms on other legal systems – is disturbing, and possibly even dangerous. Hamilton’s proposition is subject to two powerful criticisms. First, the TRIPs Agreement adopts a stance of unprecedented protectionism towards those who control knowledge, while the consequences of increased intellectual property protection for public access to knowledge, information, and technology remain unclear.82 Second, the standards in TRIPs reflect a very limited international consensus on intellectual property rights. TRIPs provisions were not achieved through international debate and compromise. They signify, above all, the internationalization of Western copyright norms.83 As a result, the character of the TRIPs Agreement has widely been viewed as coercive and potentially damaging to non-Western interests.84 In an interesting series of articles, Neil Weinstock Netanel argues that copyright may indeed support democratic values. However, he points out that this democratic potential cannot be secured simply by the adoption of TRIPs norms. Rather, the realization of the democratic values inherent in copyright will depend on achieving the appropriate balance of rights between the authors and “users” of copyright works. He observes: [C]opyright law serves fundamentally to underwrite a democratic culture: By according creators of original expression a set of exclusive

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Copyright law in transition rights to market their literary and artistic works, copyright fosters the dissemination of knowledge, supports a pluralist, nonstate communications media, and highlights the value of individual contributions to public discourse. In this view, copyright’s constitutive, democratic purpose is both the primary rationale for according authors proprietary rights in original expression and the proper standard for delimiting those rights. Copyright holder rights should be sufficiently robust to support copyright’s democracy-enhancing functions, but not so broad and unbending as to chill expressive diversity and hinder the exchange of information and ideas.85 In particular, Netanel emphasizes that: The notion that upward harmonization under TRIPs will contribute to global democracy is seriously misguided. Copyright’s constitutive value for democratic development depends heavily on local circumstances. Indeed, copyright may sometimes impede democratization unless substantial limits are placed on copyright holder rights. Asserting copyright’s democratic principles in the global arena would entail a far more nuanced approach than TRIPS’s apparent insistence on maximalist global copyright protection.86

Realizing the democratic potential of copyright will depend not only on the achievement of an appropriate balance between rights of control and rights of access to knowledge, but also on balancing different kinds of rights within copyright. Post-socialist reform needs to weigh commercial and noncommercial interests, individual and non-individualistic creation, private and public concerns, personal and state power. Copyright laws that support democratization may eventually prove to be somewhat broader in scope than currently accepted, international models of the law. If a single value can be said to be most characteristic of copyright law, it is almost certainly the protection of free and individual creative expression.87 It is interesting to consider that creative expression, despite its historic associations with patronage and elitism, can be a deeply democratic phenomenon. In modern societies, creative expression at its best is diverse, suspicious of convention, and, even in the face of physical danger, stoically independent.88 If democracy means ideological diversity and the aspiration towards free thought and judgment, the right to creative expression must be given its due as an essential feature of modern, democratic life. In the context of Western society, where modern copyright first developed, creativity has come to be valued primarily in commercial terms. The commercial benefit of creative work ultimately accrues to the owner of the copyright, whether or not he or she is one and the same person as the author. However, moral rights can be exercised only by the author, whether or not he or she is the owner of copyright. Through moral rights doctrine,

Copyright law in transition 71 copyright law also achieves a non-commercial, purely legal method of valuing creativity. It may even protect the non-commercial aspects of creative expression at the cost of economic losses to persons other than the author.89 It is important to recognize that copyright has historically developed as an instrument of both commercial and cultural policy; it reflects a certain understanding of culture and a particular means of recognizing and protecting its value.90 The idea of authorship, and its protection through copyright and moral rights, has a number of legal consequences. It assures the social status of the creative arts; it allows authors to earn a livelihood from their work; it creates incentives for at least certain kinds of creative activity; and it supports cultural industries such as publishing, broadcasting, translation, and film. By protecting authorship, copyright potentially supports democratic institutions and values. However, its success in doing so depends on our understanding of copyright’s content, the status of copyright within the hierarchy of domestic laws, and the development of a viable balance between international and domestic standards. Realizing the contribution of copyright to democratization in post-socialist societies is a matter of considering and reconciling diverse interests and issues among individuals, communities, the public, and the state. In the absence of policy-minded investigation, it is unlikely that post-socialist reforms will succeed in achieving this delicate balance.

Conclusion It would be difficult to exaggerate the scope and complexity of law reform in post-socialist countries. Intellectual property law is an integral part of this comprehensive process. Information, knowledge, and expression of all kinds were infused with a special significance in the authoritarian regimes of the region, where political domination was intimately connected with the manipulation of ideas. Intellectual property rights after socialism should reflect the democratization of knowledge in these newly democratic and developing societies. Copyright law is among the most important means of regulating expression in modern societies. Its main purpose is commercial; but, especially through the protection of moral rights, copyright also transcends commercial concerns and becomes deeply implicated in culture and human rights. Copyright has a special contribution to make to legal modernization and democratization, by offering much-needed support to the ideals of creative expression and authorship. However, the realization of this potential will depend on a sophisticated, well-informed, and long-term commitment to navigating the challenges of law reform in the largely uncharted waters of the transition.

4

Copyright and tyranny The foundations of socialist copyright law*

The story of Russian copyright law is intertwined with the history of a complex and troubled relationship between government and intellectuals in Russia. This relationship continued to define copyright law from its beginnings in Tsarist law reform of the late nineteenth century, to new and equally radical attempts at reform in the dying days of Communism. The influence of censorship on the development of copyright law is by no means a unique feature of Russian legal history. However, the interplay of censorship and copyright over the course of Russia’s turbulent twentieth century has led to a philosophical departure from the Western concept of copyright, as expressed in both common-law and Continental legal systems. The common-law mind has yet to recover fully from an attitude of suspicion awakened by the early equation of copyright with censorship in sixteenthcentury Britain. The history of copyright in Continental Europe is slightly different. Here, the French Revolution signified a break with the past, and introduced a new way of thinking about the “rights of man.” This perspective helped to orient the development of copyright towards greater emphasis on the individual rights of authors, while the fundamental idea of economic copyright as a monopoly to be restrained by good practice retreated somewhat from the forefront of copyright consciousness.1 In Russia, the sovereign had generally approached copyright law as a tool for the pursuit of his political goals – if necessary, at the expense of creative people. This attitude was later maintained by the Communist Party, and it undoubtedly strikes a sympathetic chord with Russia’s post-Communist rulers, as well. As a result, the impact of ideas about human rights was felt still more deeply in socialist countries than in Western Europe. In postrevolutionary France, copyright ultimately became one of the ways in which individual rights gained recognition. In Russia, the liberation of copyright law from political constraint came to represent an important element in the achievement of the right to free thought and expression among intellectuals – and, through them, by the Russian public at large. This intense humanrights coloring brought to copyright law through Russia’s political struggles later found its way to the countries of Central and Eastern Europe which were colonized by the Soviet Union.

Copyright and tyranny 73 The effects of this unique political influence on copyright law are apparent in the content and structure of Russian law per se, particularly in periods of détente where the goodwill of authors was of paramount importance to the government. For example, the post-Communist legislation on copyright of 1991 brings an unprecedented emphasis to the non-commercial aspects of copyright – notably, the moral right of the author, called by Elena Muravina “the fundamental principle of Russian copyright protection.”2 However, the impact of repressive politics is also broadly apparent in the context of the cultural and social policies defining the significance of copyright law in present-day Russia. Copyright in post-Communist Russia works in concert with many different kinds of laws to regulate knowledge, information, and culture – laws on press freedom, privacy, and cultural heritage, to name a few. While the legislative scheme may be unwieldy, it is probably fair to say that it also reflects a more comprehensive understanding of the role of copyright among Russian legislators than is usually acknowledged. A key aspect of legal harmonization lies in the context of how laws function together in the service of social needs, and in this, the concept of harmonization should be one of the touchstones of post-socialist reform. Interestingly, this hardwon appreciation of copyright’s potential contribution to human freedom – in the narrow but crucial role fulfilled by copyright law in the regulation of culture – is now a contribution that Russia, and other post-socialist states, can offer to the world community.3

The pre-revolutionary development of copyright The early development of copyright and moral rights in Russia closely resembles its progress in Western European countries.4 In the United Kingdom, a country that is generally regarded as the first to develop modern copyright principles,5 copyright law was the regulatory response to an unprecedented new technology for disseminating knowledge: Caxton’s printing press.6 Printing was at first tightly controlled by a monarchy that was concerned about the political implications of a free press.7 However, political liberalization and the rise of humanitarian theories of authorship and creative rights led to a parting of ways between copyright and censorship.8 Internationally, copyright retains formal ties to the possibility of restricting free expression in the interests of “public order,” particularly through Article 17 of the Berne Convention for the Protection of Literary and Artistic Works.9 As Ricketson observes, even in the most liberal democracies, there will be instances in which governments will wish to suppress the publication or dissemination of particular works on the grounds of national security or offence to generally accepted notions of public morality . . . In recent times, we have become particularly aware of this in relation to the distribution of subject matter over the Internet.10

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However, the threshold requirements for invoking such measures in democratic societies are set at a relatively high level, and are usually subject to Constitutional justification, or other safeguards.11 Copyright in Russia, as in the West, was a response to the introduction of printing. However, printing technology was relatively slow to take root: the first printed book did not appear in Russia until 1564, and publishing was not to develop as a socially important industry until the rule of Peter the Great early in the eighteenth century.12 The time lag of close to a century meant that Russian copyright law developed in a fundamentally different historical environment from Western copyright. This factor was to prove especially significant for the development of moral rights. As in the United Kingdom and other Western European jurisdictions, copyright regulation in Russia was initially one element in a program of strict control over the spread of the written word.13 However, a number of crucial differences in the Russian situation led to a distinctive trajectory for the development of Russian copyright law. In Tsarist Russia, government was based on the absolute power of the Tsar; authors were perceived as a potential threat to his power, and it was therefore difficult for authors’ rights to achieve a definitive separation from censorship. The arrest and exile of Dostoevsky for his participation in the Utopian “Petrashevsky Circle” is one example of how the Tsars dealt with literary dissent; on an earlier occasion, Pushkin wrote and circulated anonymously a “blasphemous” poem, for which he ultimately requested and received a personal pardon from Nicholas I, delivered with the “characteristic” phrase, “I know all about this case and consider it closed.”14 The revolutionary reassessment of authors’ rights in the period of Bolshevik rule immediately following the October revolution of 1917 proved to be short lived, and, for reasons of both practice and theory, could not succeed in laying the foundation for a regime of authors’ rights that would be truly independent of political considerations. Instead, there is a surprising undercurrent of continuity in the Russian approach to authors’ rights, interrupted briefly by the Revolution, from Tsarist through to the end of Soviet times. Two distinctive and enduring features of Russian life were to leave a permanent imprint on the structure and content of copyright law. The first was the persistence of absolutist and totalitarian government, which sought to exploit literature and art for political and ideological ends. The form of government may have differed – Tsarism versus Communism – but this element was ultimately central to both. The second was the crucial role of writers and artists in Russian political development – in the liberalization of Russian society under the Tsar, and later, in their anti-Soviet activism. Ironically, these two, Janus faces of Russian political life reflect a commonlyheld belief in the importance of creative expression shared by writers and rulers.15 As Osip Mandelstam, the Russian poet, apparently commented to his wife, “Poetry is respected only in this country – people are killed for it.”16

Copyright and tyranny 75

Russian theories of copyright Copyright in pre-Revolutionary Russia suffered from a degree of conceptual poverty. In general, the development of Russian legal theory was greatly inhibited by the system of Tsarist government, where law was subordinate to the political authority of the Tsar. The absolute character of the Tsar’s rule meant that law was identified with him personally. As Susan Heuman points out: From the time of Peter the Great the tsars established a governmental system designed to serve the will of the center. Law was identified with the head of state rather than with legal precepts. Although during each reign the failure to codify the law was recognized as a problem, the tsars drew back from permitting the establishment of an overarching theory of law. To acknowledge any principle of authority higher than the autocracy itself was unacceptable.17 As the nineteenth century progressed, the underdevelopment of law and legal culture came to be seen as a serious obstacle to the modernization of Russian society. This perception was shared by the Tsar, who could not ignore the potential for instability inherent in Russian backwardness, and the emerging Russian intelligentsia, including as one of its most dynamic groups, writers. Russian intellectuals across a range of disciplines applied themselves to this problem and developed ideas on Russian legal development, embracing the extremes of anarchism and legal nihilism, the legal positivism of the “analytical school,” and a special variety of Russian “liberalism.”18 For Russian liberals, legal modernization meant a movement away from Tsar-centred legality to the development of a society based on the concept of individual rights.19 However, the idea of individual rights developed by Russian liberal theorists was not limited to Western-style constitutional rights: in their view, the Russian legal system should be strongly and directly focused on individual rights; individual rights should become the primary rationale underlying a Russian concept of law.20 In an illuminating article on the Russian liberal movement and one of its leading theorists, B.A. Kistiakovsky, Susan Heuman points out: [I]ndividual freedoms had to become the primary, not the secondary goal of society. As Kistiakovsky noted, in Western constitutional regimes individual rights were supposed to be the priority, but in fact, All individual and social freedoms or rights were not primary rights but only traces of legal principles: all that was not forbidden was allowed. As expressed in legal terminology, individual and social freedoms were reflections of objective laws.21 Both the importance of individual rights for legal modernization and their incompatibility with the Russian autocracy are concisely expressed by Heuman:

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Copyright and tyranny The autocracy dealt with the population as subjects who were granted certain rights and privileges based on their social and economic status. To transform the legal and political system in the Russian Empire would necessitate a change in the relationship between the individual and the state. But the tradition of the French Enlightenment did not have the impact on the Russian Empire that it had in Western Europe, where it produced a sense of natural rights. Natural rights might have given birth to a concept of civil rights that were independent of the bureaucratic state and its ideological framework.22

In this legal environment, the notion of copyright, with its strong basis in an individual and personal right of the author, presented a fundamental challenge to the established legal culture. At the same time, the importance of encouraging authorship for the sake of Russian development was a major consideration motivating the government to improve authors’ rights, including, as in Western European model laws, protection for their personal interests. Indeed, the development of a Russian doctrine of copyright would entail both the adoption of foreign legal theories and the successful progress of liberal legal thinking within Russia itself, which was necessary for legal reform to become possible. In fact, the reformed Russian copyright law of 1911 included a number of features that matched current provisions in foreign and international law, sometimes surpassing accepted norms.23 These included the granting of an exclusive copyright to the author, and extension of copyright term to 50 years beyond the lifetime of the author.24 The law was quite forward thinking in formulating a scheme for the protection of oral culture and folklore, an idea that did not receive serious attention in international copyright circles until the 1960s.25 The Act attempted to protect authors from unfair exploitation by limiting the assignment of future, as yet uncreated, works to a maximum of five years – and level of recognition for a droit de créer in the traditional sense – even where the contract of assignment might provide for a longer, or unlimited, period.26 Among the most significant of its accomplishments, the new legislation also created protection for moral rights. The presence of moral rights in Russian legislation can be traced to three factors: the traditional and growing importance of authors in Russian society, the idealistic and reform-minded attitude of the drafters of the new Copyright Act, and the influence of French and German theory on Russian copyright law. In particular, the influence of Western European legal theories of authors’ rights on Russian law deserves a more detailed consideration. Russian copyright was developing at a time when natural law theories of authors’ rights had gained widespread currency in Western Europe. Russia’s Copyright Act of 1911 was intended to modernize thoroughly the Russian treatment of authors’ rights, and it was closely based on the German copyright law of 1901.27 If political restrictions under the Tsar had limited the development of copyright, cultural factors within Russia may have compensated by

Copyright and tyranny 77 increasing the pressure on the government to modernize copyright and moral rights – in particular, the growing prominence of authors in Russian political and social development.28 As Geoffrey Hosking points out, authorship came to be desperately important in nineteenth-century Russia, where it was seen as an essential instrument of nation-building.29 The idea that the prerogatives of authorship should be understood as natural rights grew increasingly influential in the countries of Continental Europe throughout the eighteenth and nineteenth centuries, especially in France and Germany.30 In France, the impact of natural rights theory on copyright law has been particularly strong, leading, in the views of at least one commentator, to the enduring “pre-eminence . . . [of] moral rights [over economic rights] as clearly expressed in the Copyright Act.”31 Russia’s legislative commitment to moral rights at the turn of the century is at least partially a reflection of the international growth and development of the doctrine during the formative years of its copyright regulation. Indeed, an interesting contrast may be drawn with the development of copyright law in the United Kingdom. As Strömholm points out, UK copyright law was firmly established by the beginning of the eighteenth century, well before natural rights approaches to authorship had developed. Strömholm suggests that this is a major reason for Britain’s historical reluctance to adopt legislative measures for protecting moral rights.32 Prior to the Revolution, Russian copyright had begun to develop along the doctrinal lines favored by Russian liberalism and its influence on legal theory. Russian copyright had always been an “author’s right”: in contrast to the American tradition, which places a great deal of importance on the rights of copyright owners, or the strongly publisher-driven development of British law,33 the person of the author was clearly the focus of Russian law. Initially, the position of the author reflected the social importance of authorship in Russia. For example, individual authors were occasionally able to influence the development of copyright, and at least two major changes in Russian copyright, affecting the duration of copyright protection and the author’s rights to control translations, were directly brought about by Pushkin and his widow.34 Turgenev was later part of Russia’s delegation to the 1878 conference of the Société des gens de lettres in Paris, which, under the leadership of Victor Hugo, helped to develop some of the key principles eventually formulated in the Berne Convention of 1886, while Tolstoy and Dostoyevsky were later included in its Committee of Honor.35 By 1911, however, the consolidation of the authors’ rights approach to copyright in a modern law could also be said to reflect the growing influence of Western legal theory and Russian humanism on legal culture.

An early role for moral rights The concept of copyright in Russian law was unusual in its readiness to embrace the idea of protection for the non-economic interests of authors.

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Russian copyright maintained a very close connection between economic and moral rights. In this sense, the influence of the German copyright statute of 1901 is evident: in keeping with the German “monist” doctrine of moral rights, economic and moral rights were practically inseparable.36 However, the unusually high level of moral rights protection in Russian law is more reminiscent of French than German tradition, as moral rights in France arguably provide the very rationale for copyright protection.37 In practice, the distinction between monist and dualist theories of moral rights affects the term of protection: in monist systems, moral rights expire with economic rights, while dualist systems typically grant perpetual protection of moral rights. In Russia, a term of protection had never been specified in legislation – an omission that would continue to characterize Soviet copyright law – but the convention is that they were granted perpetual recognition in Russian law.38 Russia’s mixed approach, employing the advantages of both systems, undoubtedly reflects a deep cultural tradition of respect for authors and veneration of the arts. In dealing with the issue of authors’ personal, or “moral,” interests, Russian legislators were concerned with three rights of authorship: attribution, integrity, and first publication, or disclosure. All three rights eventually came to be recognized in different international jurisdictions, and are now a focus of copyright systems in the civil law countries of Continental Europe; some countries also recognize additional moral rights, such as a right to withdraw one’s work from circulation on the grounds that it has ceased to represent one’s opinions, and even a right against excessive criticism.39 The right of attribution provides that the author has the right to be associated by name with his or her own work, or possibly, to publish under a pseudonym or anonymously; the right of integrity allows an author to protest the mistreatment of his or her work, usually where his or her reputation or “honor” is at stake; and the right of disclosure, or first publication, permits the author to choose whether, and how, his or her work is released to the public. Attribution and integrity rights were explicitly included in international copyright law for the first time in the 1928 revision of the Berne Convention for the Protection of Literary and Artistic Works, the primary international instrument for copyright protection.40 It is noteworthy that in Russia, as in many countries of Western Europe, recognition of moral rights somewhat pre-dated these international efforts.41 In one form or another, moral rights appear to have been implicated in the development of Russian copyright since the earliest legislative efforts in this field.42 Russia’s first copyright regulation was issued in 1828, as five articles in a statute on censorship;43 its last copyright statute before the Revolution was the copyright law of 1911.44 With the adoption of the 1911 law, moral rights were explicitly incorporated into Russian copyright legislation.45 However, the focus of moral rights on the individual rights of authors made them incompatible with the requirements of Tsarist rule,

Copyright and tyranny 79 leading to an enduring tension between authorship as understood by the law, and politics.46

Copyright and moral rights in Russian legislation and practice Prior to the Revolution, Russia developed three major pieces of copyright legislation: the censorship statute of 1828,47 the copyright provisions of the Russian Civil Code of 1887,48 and the copyright law of 1911.49 All three statutes understood the author’s right as a combination of proprietary and moral interests. However, in addition to other improvements of note in the protection of copyright, the treatment of moral rights in Russian law was developed and expanded greatly in the 1911 revisions, which set a new standard of protection for authors’ rights in Russia. Copyright and censorship: the censorship statute of 1828 The first Russian legislative provisions on copyright were part of a general statute on censorship, issued by Tsar Nicholas in 1828. The tightened censorship regime was a response to the political turbulence of the decade, culminating in the Decembrist revolt of 14 December 1825.50 By this time, the Russian publishing industry was flourishing, and included works by Russian authors as well as translations of works from throughout the Russian empire and abroad. The increased market for books among the Russian public meant that the publishing industry had to confront irregularities that had long been problematic in Western European countries. The new copyright regulations had to serve a dual purpose. First, the legislation needed to deal with developments in the Russian publishing industry. As the nineteenth century progressed, it had become both possible and profitable for Russian publishers to print books which they did not have a license to print for the Russian market, infringing on the contracts of other publishers, a problem that had come to be known as “piracy” in the Western European book trade. Piracy would have entailed significant economic losses for Russian publishers. Second, the problem of piracy also had an impact on the Tsar’s ability to control the circulation of information in the wake of political turmoil. As Newcity points out, effective censorship demanded that censors should have access to all published works, whether or not they were published legitimately.51 Piracy indirectly caused problems for censorship by allowing books to circulate in an unauthorized and unmonitored fashion, so that censors were not entirely aware of what was actually available on the literary market. The political effect of piracy was to limit the Tsar’s access to literary works that might challenge the legitimacy of his power. It is therefore not surprising that the censorship statute of 1828 introduced a system of regulating the publishing industry based on the author’s

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right in his or her own work, the easiest and most assured way of controlling publication activities. An interesting side effect of the author-centered approach, however, was that the legislation laid the foundation for considering authors’ rights in their totality – as being both economic and personal in nature – rather than focusing, in the Anglo-American tradition, on the economic rights of authorship to the exclusion of personal rights from copyright legislation.52 Even at this early date, Vladimir Gsovski identifies the system as one of droit d’auteur or Urheberrecht, and the structural potential for recognizing moral rights as part of the authors’ law is clearly built into the system.53 While the statute of 1828 conferred an exclusive right of publication on the author, in keeping with the requirements of censorship, it did not make explicit provision for the personal right of the author. Instead, the author’s right was justified on economic grounds.54 It is interesting that, at this basic level, the problem of the author’s right ironically seems to come down to the question of who should have the right to control publishing – in other words, exercise powers of censorship – authors or the state. The theme of the government using authors’ rights to camouflage its own censorship activities is also noteworthy; while it is far from unique to Russia, the Soviet government was to have extensive recourse to this strategy in its fight for ideological hegemony.55 Copyright in the censorship statute of 1828 was exclusively a “writer’s right,” applicable only to literary works.56 The legislation granted to author’s an exclusive right to publish and sell their work. The duration of copyright was the lifetime of the author and 25 years after his or her death, and could be favorably compared to international practice of the time.57 Copyright was also alienable, and could be inherited by the author’s heirs. The distinction drawn between publication and sale in the copyright statute suggests that a moral right of first publication, or disclosure, was implicit in the right of publication. Arguably, publication in the Russian statute means not only the right to sell, but it also signifies the additional right to disclose the work to the public. Unfortunately, the statute does not specify whether or not the right of publication could be alienated by the author, so that it is difficult to arrive at a definitive interpretation. However, this view does seem to be supported by the nature of the right: it flows directly from the creation of the work and, in contrast to the American system based on registration, for example – historically, one of the obstacles to US membership in the Berne Convention – it arises automatically out of the creative act.58 It is interesting to note that copyright protection was available, not only to original authors, but also to translators, who were granted an original copyright in their translated works. Indeed, Russian law embraced a broad principle of “freedom of translation” which created a situation of potential conflict in relation to the author-centered theory and practice of Russian copyright. In Russia, freedom of translation meant that translators were not

Copyright and tyranny 81 required to secure the author’s consent before publishing translations, or to provide a share of any profits from sales of the translation to the original author. At best, it appears that the translator would have been required to acknowledge authorship of the original work. By refraining from adopting restrictions on translation rights, the Russian approach served the important Imperial policy of unifying Russia’s diverse peoples through a common literature, as well as the goal of improving literacy.59 The policy made sense in view of the international status of the Russian language: its use extended throughout the Russian Empire, but did not reach significantly beyond Russia’s borders. The Russian language was seen by Russian speakers as primarily a language “translated into,” rather than a source language for foreign translations. Relative freedom of translation would therefore facilitate the translation of foreign works for Russia’s use, while its impact on the interests of authors writing in Russian would presumably be negligible. From the point of view of Russian authors, however – and still more, authors writing in the minority languages of the Russian Empire – freedom of translation could lead to both economic and moral losses through translation activities both within and outside Russia. Although it was never abandoned, this principle was gradually modified in subsequent legislation to reflect some of their concerns. Interestingly, even after Russian authors acquired some rights over translation, the works of foreign authors could still be translated freely into Russian. Although some attempts were made to resolve the resulting international tension through bilateral treaties between Russia and Western European countries that were adopted in the wake of the 1911 copyright statute,60 the problem eluded a complete resolution until Russia’s accession to the Universal Copyright Convention in 1973.61 Copyright and property rights: the Civil Code reform of 1887 In the decades following the promulgation of copyright provisions, a number of regulations modified specific aspects of the copyright law. In 1830, a decree clarified that authors’ rights were analogous to proprietary rights, and were subject to alienation by the author.62 In the 1840s, copyright protection was extended from literary works only to musical and artistic works.63 Interestingly, two important modifications to the law were also brought about by the direct intervention of Pushkin. The first of these provided that the publication of a translation that appeared alongside an original work was subject to the consent of the original author, a restriction on the principle of unfettered “freedom of translation” in Russian copyright law.64 The second, on the request of Pushkin’s widow, was for an extended term of copyright protection, which, in 1857, became today’s norm of the life of the author and 50 years after his or her death.65 Both served to emphasize the focus of the law on the person of the author as its main subject and

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beneficiary, with his or her heirs continuing to benefit from his or her work after his or her time. In 1887, copyright law was incorporated into a reformed Russian Civil Code – and indeed, it is worth noting that Russian reform shows a pattern of moving from specialized laws to the Civil Code, a possibility that is of great interest to current, post-Communist reformers as well.66 Historically, the new structure of copyright was significant for several reasons. From the perspective of authors’ rights, a positive development of great significance was that the new copyright legislation broke completely with censorship regulations for the first time. Accordingly, Russian law had acquired a new potential to deal with copyright as individual rights of authorship, with political concerns relegated to a definitely subsidiary position. Copyright also acquired a new status through the Code, signifying greater stability and permanence. However, sources suggest that moral rights were not further elaborated in the Civil Code provisions. Rather, building on the 1830 decree, the Civil Code provisions treated copyright as one aspect of the law of property, and stated that “[e]very author or translator of a book shall enjoy for his lifetime the exclusive right to publish and vend it in his discretion as his legally acquired property [my italics].”67 Once again, this provision lends itself to interpretation as a personal right to disclose the work, as well as an economic right to sell it. However, a moral right of disclosure can only be implied, and its existence is far from clear; no explicit provision for one is made. In spite of the innovative introduction of an independent copyright regime included within the Civil Code, the essential structure of the law dated from 1828, and was gradually showing signs of strain under the pressures of Russia’s turn-of-the-century. The time was a period of intense political instability, much of it triggered by the tremendous expansion of literacy, education, and political consciousness in the preceding decades, and culminating in the so-called “Revolution” of 1905.68 The shortcomings of the law, coupled with an increasing range of activities affected by copyright regulations, led to difficulties in interpreting and applying it. Rastorgoueff refers to one notorious case, litigated over a fiveyear stretch, where a dispute between two publishers was ultimately decided in favor of both parties – and thus, in effect, neither. It appears that the conflict arose precisely because of an absence of clarity about the doctrinal basis of copyright protection, “it being found that one [publisher] had the right of property and the other the right of publication in the same book!”69 Copyright and modernization: the 1911 Act and a sui generis approach Dissatisfaction with copyright law as it had developed over the course of the nineteenth century led to a comprehensive reassessment of the Russian approach to copyright in the early years of the twentieth century. Existing

Copyright and tyranny 83 law, with its rather crude and minimalist approach to copyright, was becoming inadequate to deal with the increasingly complex needs of Russia’s authors, and its rapidly developing publishing industry. A growing interest in Russian literature among foreigners brought with it a new awareness of Russia’s copyright relations with the international community. At the same time, the Tsarist government felt that cultural activities were essential for Russian modernization, and should be adequately recognized and protected by law. The Copyright Act of 1911 was fated to be the last copyright statute before the upheavals of socialism. It was inspired by the German copyright law of 1901, and it was the product of a thorough re-examination of Russian copyright law as it had developed to date.70 It was to inaugurate a new copyright regime based on principles that, despite the intervention of the Revolution, would continue to color Russian and Soviet legislation for decades to come. The 1911 Act rejects the idea of property as a basis for copyright protection. Instead, it treats copyright as a sui generis right; it is divided into a series of chapters, each of which is concerned with one particular genre of copyright works. Rastorgoueff points out, “[c]opyright is no longer construed as ‘property,’ and Art[icle] I simply states that copyright subsists in literary, musical, artistic, and photographic works, enumerating examples of such works in illustration of its meaning.”71 In effect, there is an element of originality in the way in which the Act protects these categories, for example, identifying in Part 4 the rights of public performance in relation to dramatic, musical, and musico-dramatic works, as a protected element of copyright.72 With the removal of the basic conceptual limitation of property rights, the 1911 Act goes on to elaborate authors’ non-property rights in some detail. It includes provisions protecting the author’s moral right of integrity, and offering some implied recognition of disclosure and attribution rights. Significantly, the author is also said to enjoy an “exclusive” right to publish his or her work, as well as reproducing and disseminating it – a provision that would seem to include the idea of a moral right of disclosure alongside the economic interest in first publication. It is worth noting that the idea of an exclusive right to control the work residing in the author was a part of Russian copyright tradition from the earliest times, and was apparently the form of expression given to copyright even in the Censorship Statute of 1828.73 The Act expresses protection for authors’ moral rights in a somewhat unusual formula. The moral right of integrity is set out in Article 20, which states: A person who has been granted, fully or in part, the author’s right in the work is not allowed to publish or perform the work publicly with additions or abridgements, or with any alterations whatsoever, without

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The effect of this provision is to prevent the unauthorized modification of an author’s work. However, it is specifically concerned with the treatment of the work by the person to whom copyright is assigned – normally speaking, the publisher. Interestingly, this approach was to be resurrected in the Soviet integrity right, but, in that case, on the basis of a socialist theory of copyright that aimed to protect individual authors against the exploitation of their labor by the publisher. As Gsovski observes: The law of 1911 sought to protect a Russian author against the publisher. Any person to whom the copyright was assigned was prohibited . . . [from] publish[ing] or perform[ing] the work with any additions, omissions or other alterations without the consent of the author, except those necessary alterations which the author could not reasonably refuse.75 As a result, protection for the moral right of integrity in the Act is very broad in requiring the author’s consent to a variety of practices, but it is also strangely narrow in specifying who can be held responsible for an infringement. Following Serge Levitsky’s analysis, it seems clear that the provision is not so much intended to restrict the scope of the integrity right, as to avoid introducing the alien and politically uncomfortable terminology of “personal,” “moral” or “individual” interests into Russian law.76 This reading of the Act seems to be supported by a consideration of Article 70, which appears in Chapter 7, on Publishing Contracts. Article 70 restates the author’s moral right of integrity, in almost identical terms to Article 20, except that it identifies the publisher, in particular: The publisher does not have the right, without the consent of the author or his heirs, to make any changes whatsoever to the work . . . except those to which the author, out of his good will, would not refuse his consent.77 Indeed, in his comparative study of moral rights, Strömholm does not hesitate to observe: Le droit moral n’est pas dépourvu de traditions en Russie. La loi de 1911 connaissait le droit au respect . . . et déclarait le droit d’auteur insaisissable entre les mains de l’auteur et de ses héritiers.78 In addition to the moral right of integrity, the Act of 1911 includes a number of other provisions which recognize jointly the author’s economic

Copyright and tyranny 85 and moral interests. Notably, it creates a specific offense out of the failure to indicate the author’s name on a published work, punishable by imprisonment for a minimum period of three months.79 The Act thereby appears to provide some protection for the author’s right of attribution. It also provides for calculating the term of copyright protection in the case of anonymous or pseudonymous works, suggesting that the right of the author to choose whether or not to be associated with his or her work by name is part of the law.80 Article 27 of the Act provides that the “publication of literary work or of its content if it has never been published before is not allowed without the consent of the author” – a right of disclosure. The Act also dealt with the issue of assigning copyright in future works: the assignment of copyright in works that had not yet been created could only be valid for a maximum period of five years, whatever the contract terms might state. Finally, the 1911 Copyright Act introduced some restrictions on the principle of freedom of translation. A Russian author would be allowed to reserve the right to issue a translation of his or her work for a period of ten years.81 This provision contributes indirectly to the status of authors’ moral rights as well, by allowing them greater control over the quality of translations.82 This is often a key issue for writers in countries such as Russia, where both national reputations, through translation into regional languages, and an international name may be made or broken by the appeal of works in translation.83 This provision undoubtedly reflects the influence of international copyright law: Article 5 of the Berne Convention of 1886 secured to authors a ten-year period during which they could reserve translation rights. However, translation rights in subsequent revisions to the Berne Convention moved forward rapidly, and the provision appeared very restrictive by contemporary international standards. For example, Article 8 of the 1908, Berlin Act of the Berne Convention provided that authors have the right to make or authorize translations of their original works for the entire duration of copyright protection – the lifetime of the author, and 50 years after his or her death.84 The United Kingdom was one of the 15 signatories of the Berlin Act, and the UK Copyright Act of 1911 provided a similar right to make or authorize translations for 50 years after the death of the author, without any need for the author to reserve the right.85

Tsarist Russia and international copyright At this early stage, certain trends were already apparent in Russia’s approach to international copyright rules – patterns that were to be repeated, not only during the Soviet period, but also in the post-Communist experience of copyright law after 1991. Russia became increasingly interested in international copyright matters during the nineteenth century.86 Indeed, in the years preceding the Berne Convention, which witnessed growing

86 Copyright and tyranny international interest in the prospect of an international copyright system, the potential advantages and disadvantages to Russia of greater international participation were hotly debated. Interestingly, the conflict was personified in the divergent positions of Russian authors, an increasingly influential political constituency within Russia, and the government. Russian authors felt that it would be in the Empire’s best interest to participate in international copyright arrangements. Their enthusiasm was derived from the popularity of Russian literature in Western Europe and abroad, which led them to argue that the flow of royalties into Russian pockets would largely counterbalance payments to foreign authors, contributing to the progress of the domestic economy. They also favored the idea of Russian participation in the international literary community, which they believed would generally benefit the cause of modernization in Russia. The government, however, took a more cautious view. In particular, concern about opening Russia to an influx of foreign literature created anxiety on a number of fronts, political and cultural as well as economic. As a result, despite early interest in the development of the Berne Convention, the idea of Russian membership in the agreement was initially not successful. Indeed, the participation of eminent Russian literary figures, including Turgenev and others, seemed to indicate a favorable climate for Berne membership, but this was not enough to overcome official concerns about the prospects of membership.87 Instead, the international copyright relations of pre-Revolutionary Russia were limited to four bilateral conventions on copyright – with France, Belgium, Denmark, and Germany – which ultimately expired.88 Later political developments in Russia deepened the estrangement of Russia from the world of copyright, so that the idea of Berne membership did not receive serious re-consideration until the postCommunist years. While the position of Russian authors on international copyright relations may have been fully justified, the government’s concern was at least partly grounded in the established reality of Russian copyright practices. A number of notable discrepancies distanced Russian copyright law from international practices. Foremost among these was the principle of freedom of translation, which presented a major obstacle to the foundational principle of national treatment underlying the Berne Convention. At least one of the reasons behind Russia’s attachment to freedom of translation was the important domestic goal of promoting national unity and greater literacy throughout the diverse regions and cultures of the country. Another reason, cultural and political in nature, was a deep-seated reserve towards foreign literature and the recognition of its role in Russian society. From one point of view, granting copyright protection to foreign authors could have facilitated official censorship by making it easier for the sovereign to monitor the circulation of foreign works in Russian territory. However, this facility would have come at genuine economic costs, and it might also have required a repudiation of Russia’s culture of caution towards foreigners.

Copyright and tyranny 87 Some of these issues may have been resolved by the process of copyright reform surrounding the adoption of the Copyright Act of 1911. However, the inspiration provided by German legislation did not bring Russia substantially closer to international practice in areas of major controversy. The 1911 Act included modern provisions such as the extension of copyright term to the lifetime of the author and 50 years after his or her death, and the right of authors to reserve translation rights by asserting in the book itself that they intended to do so; but these had already become features of Russian law prior to 1911. The Act included the innovation of some protection for the rights of foreign authors, specifying, in section 32, that the republication of works published abroad in Russia would require the consent of the original author, or possibly, his or her successors.89 It does not go so far as to grant actual recognition to the copyright of foreign authors in Russia, and indeed, Article 35 of the Act specifies that translations of works originally published abroad to foreign authors is completely free of copyright restrictions, subject only to the provisions of any bilateral treaties concluded between Russia and other countries specifying otherwise.90 In the absence of further reforms, therefore, the 1911 law could not serve as a basis for admission to the Berne Union, with reform of this period failing to provide a true opportunity for Russia to revisit the possibility of participation in the international copyright system.

Conclusion: the status of copyright before the Revolution By the time of the October Revolution, Russia had succeeded in developing a vision of copyright law that was conceptually consistent and relatively modern. The Copyright Act of 1911 was based on Western European principles of copyright law, though it included a few provisions that were a product of its special concerns in relation to copyright. Notably, Russian policy remained distinctive in the area of translations. The Russian approach to translation was not, in itself, innovative; but Russia’s reluctance to restrict translation rights continued to be characteristic of Russian copyright law long after it had ceased to be internationally current, especially as expressed in the relevant provisions of the Berne Convention. The departure of Russian law from a property-based notion of copyright is noteworthy, as is the Russian integrity right, with its special focus on the relationship between author and publisher, and its deliberate attempt to empower the author. In addition, Russia was surprisingly innovative in granting protection for “oral” works and “musical improvisations.” Neither of these kinds of works would be seriously considered in international copyright discussions for decades to come, but protection for them had much immediate relevance in the context of Russia’s rich heritage of folklore and traditional culture.91 Taken together, these factors lent a special flavor to Russian copyright law, one which it was to retain until Soviet accession to the Universal Copyright Convention (UCC) in 1973. However, they may not have constituted a

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sufficiently distinctive approach to lay claim to a full-fledged “Russian model” of copyright. On a somewhat less positive note, the technical shortcomings of this law of 1911 are also noteworthy. Commentators of the period, such as Rastorgoueff, and later commentators like Newcity, characterize it as a “modern, well-conceived,” and sophisticated statute.92 In fact, this assessment is rather lenient: to the eye of a copyright lawyer, the Act is poorly structured, repetitive, and unclear on how to define or apply unnecessarily vague concepts such as the “good will,” or “reasonableness,” of the author.93 As far as the moral rights of authors are concerned, the new copyright law potentially seems to encompass a larger vision of these rights than explicitly stated in the provisions of the Act dealing with them directly. In a sense, the Russian treatment of moral rights paralleled the international situation: moral rights were discussed in the conference leading to the adoption of the Berlin Act of the Berne Convention in 1908, but they were not actually incorporated into Berne until the Rome revision of 1928. In spite of the constraints of an autocratic government which was understandably preoccupied with censorship issues,94 a systematic concept of authors’ rights became firmly entrenched in Russian law with the Act of 1911. This was no mean accomplishment. For Russian legislators, authors’ rights included both the economic and the personal rights of the author, though there was a clear reluctance to provide open recognition for authors’ moral rights. Russian drafters may have been hesitant to deal openly with moral rights as individual rights per se but the treatment of the rights of integrity, attribution, and disclosure shows an unmistakable awareness of the personal dimension of the author’s copyright. The concept of moral rights was thereafter to remain a constant presence in Russian law, an area of continuity before and after the Revolution. However, its development after 1917, along with the idea of copyright as a whole, was to be conditioned by the political realities of a new style of authoritarian government: Soviet rule.

5

Revolution and reform The transformation of copyright under Communism

The decisive seizure of power by the Bolshevik party in October 1917 set in motion an enormous wave of instability. As a tidal wave engulfs everything in its path, the immediate effect produced by revolutionary success was nearly total destruction of the existing regime. The concern of the Bolsheviks was to break conclusively from the Tsarist era – to destroy the institutions on which Tsarist power had reposed. Since Bolshevik power was also strongly idealistic – an idealism that would be irrevocably corrupted into ideology within a decade – bringing about conceptual consistency between Russian social institutions and Marxist doctrines was a second, but equal, priority. For example, decrees that nullified the private ownership of property and land were among the earliest pronouncements of the new Bolshevik government.1 The revolutionary élan of the Bolsheviks would exert a powerful influence on authorship and authors’ rights in the newly created Soviet Union. Among its other implications, the Revolution signified a new relationship between state and culture in the light of socialist ideals and hopes for Russia’s future. Initially, the policy of the new state towards culture meant that creative authorship was swept up in radical change. As the Revolution stabilized, however, the approach to authors’ rights, like many aspects of revolutionary change, would solidify into a new shape. Copyright and moral rights under the more mature Soviet administration represented a somewhat different approach to culture from that of the Bolsheviks. The Soviet treatment of culture would come to reflect the complex dynamic between state, law, and literature in a society where the government aspired to totalitarian domination. Copyright and moral rights in the Soviet period were couched in the official language of socialist ideology. Nevertheless, authors’ rights under Soviet rule had a great deal in common with the Tsarist approach to copyright. This dual legacy points to the essential resemblances between Tsarist and Soviet power. It is perhaps most accurate to say that socialist ideology lent a distinctive color to a legal regime for authors’ rights that had been largely inherited from Tsarist Russia. Ideology was the key to interpreting and understanding authors’ rights under Soviet rule.

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A shift in cultural policy: Bolshevik radicalism and authors’ rights The initial euphoria of revolutionary success was reflected in a bold and activist approach to culture. On the one hand, somewhat in keeping with Tsarist tradition, the Bolsheviks wanted to exploit the power of Russian creativity for their own political objectives. In this endeavor, they did not suffer from the limitations of the Tsar, who did not have the forces of ideology and social theory at his disposal; they intervened wholeheartedly and even recklessly into the cultural sphere to put their policy into action. On the other hand, the Bolsheviks probably had a characteristically Russian sense of the power and importance of literature. They had faith in its capacity to transform the most fundamental revolutionary battlefield, the minds of the people, into something new. It seems that Lenin and other Bolshevik leaders believed that literature’s potential contribution to the Revolution would be as much social as political. It is fair to say that their desire for radical change, political and social, found some sympathy and support among writers. This attitude was to change as the renewed precariousness of their own position, and of broader social interests in the new regime, gradually became apparent.2 As early as December 1917, the new Bolshevik government embarked on an ambitious program of nationalizing literary works. Initially, the government took over publication rights in classic works of Russian literature whose authors were no longer living, including Pushkin, Tolstoy, Dostoevsky, Gogol, Chekhov, and Turgenev.3 In November 1918, the possibility of nationalizing the works of living authors was recognized as well.4 The nationalization program highlights a number of interesting features of the developing relationship between socialism and culture. Already, in this early period of Soviet rule, culture was perceived to be an area of special importance for revolutionary progress. The rationale behind the nationalizations was presumably to make the wealth of Russian literature available as widely as possible to the public. The Bolsheviks believed that this literature would have value for the Revolution – value in education and in nation building, no doubt. The fact that most of the authors whose works were nationalized, with the notable exception of Chekhov, came from upper-class backgrounds was irrelevant. As Sheila Fitzpatrick points out, the “specialist” skills of writers and artists, and their importance for Russian development, were acknowledged by the Bolsheviks. However, from the point of view of Russian intellectuals, the attention of the Bolsheviks had ambiguous consequences. Fitzpatrick observes: [T]he complex relationship between the Bolshevik Party and the Russian intelligentsia in the decade after the Revolution is probably best understood as two competing elites, essentially interdependent, jealously jockeying for position, and withal constituting the only

Revolution and reform 91 possible claimants for leadership in a fragmented and unsettled postrevolutionary society. It was a cliché of the 1920s that the Soviet regime could not survive without the collaboration of “bourgeois specialists.”5 Notwithstanding its potentially negative impact on authors’ rights, it is not difficult to sympathize with the initial program of nationalizations undertaken by the Bolsheviks. The idea of making classic literature widely available to the public without the hindrance of fees and restrictions arising from copyright is understandable. It suggests an appealing and idealistic notion of democratizing culture. However, this policy, and the Bolshevik approach to culture more generally, met with a mixed reception from writers and intellectuals. Blok, Mayakovsky, and Gorky were initial supporters of the Revolution, whose support would eventually be tested beyond the point where it could be maintained, while many others were ambivalent from the start.6 Indeed, the Bolsheviks are far from being the only government ever to undertake such measures: they have been subsequently adopted in at least one post-colonial jurisdiction, where the contribution of literature to development and the growth of national consciousness has been very important to a newly independent country.7 Nationalization for the Bolsheviks was equivalent to imposing state control. In contrast, post-colonial nationalization, at least in this important instance, literally meant “making public”: private printers acquired the right to print competing versions of national literature for profit to themselves.8 However, if the policy of nationalizing classic works attracts ready sympathy, the subsequent decision of the Bolshevik government to extend nationalizations to living authors seems to cross the line separating revolutionary idealism from arbitrary control. Nationalization would have had two kinds of implications for authors and their descendants. First, in the case of deceased authors, it would have deprived the author’s descendants of inherited royalties, a policy that has both negative and positive aspects.9 It should be noted, however, that the decree of 1918 recognized the potential harshness of this rule. It made provision for the descendants of authors who found themselves in financial want to receive a minimum of support for their livelihood from royalty payments generated by the deceased author’s works.10 Second, however, the total neglect of authors’ personal rights raises some problems. Not only would the author him- or herself be unable to assert his or her moral rights, but the heirs of the author would also lose their ability to vindicate them. Notwithstanding the terminology of personal rights, the implications of a lack of protection for moral rights transcend the narrow interest of an individual author in controlling his or her own work. The termination of copyright protection through nationalization means that the maintenance of the author’s personal rights of attribution and integrity will become impossible after his or her death. The negative consequences of this inability to protect deceased authors’ moral interests are not restricted to them and their descendants. Rather, the expiry of moral

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rights has broader implications for cultural heritage, and, in relation to classic works of literature, presents a potentially serious issue. Maintaining attribution and integrity interests after an author’s death contributes to the preservation of cultural heritage and to an accurate historical record, to name but the two most obvious benefits flowing from these rights.11 Of course, in order for a broader cultural benefit to be realized, it is not necessary that moral rights should be vindicated by the author’s personal heirs and descendants: they can no doubt be effectively protected through a number of special arrangements, by allowing individuals, organizations, or even state agencies to assert them on behalf of the author. However, it is not certain who would be best placed to assert moral rights most effectively. The extension of the Bolsheviks’ nationalization program to living authors effectively brought their works prematurely into the public domain – before the expiry of the usual duration granted by law – or, more precisely in this case, into the ambit of state control. Where the rights of living authors are also not recognized, the problem of protecting works in the public domain becomes acute. Moreover, it seems likely that the deprivation of a degree of control over the publication process would make authors generally ambivalent about the commercialization of their works, making nationalization work as a kind of disincentive to publication. The policy certainly indicates a lack of sensitivity to authors’ perceptions of their own interests and needs. The decree reveals the extent to which concepts of individual rights of authorship, whether for reasons of doctrine or of practice, came to be disregarded in effect by the socialists. Nevertheless, the second decree was applied in practice to the works of only two living authors, Georgy V. Plekhanov and Upton Sinclair.12 With the decline of revolutionary politics by the end of the 1920s, conventional concepts of law were resurrected to deal with the business of a government that was beginning to show traces of its pre-Bolshevik ancestry. Above all, a change of direction was compelled by Russia’s extremely straitened economic circumstances after the onset of World War I, a theme of economic collapse that was to reappear in the final years of the Soviet Union. In keeping with the objectives of the New Economic Policy (NEP), scattered reforms to the copyright regime in 1922 saw the government retracing its political steps to reintroduce the notion of private property in creative and intellectual work.13 As Newcity observes: The introduction by Lenin of the New Economic Policy (NEP) in March 1921 resulted in a temporary slackening of the nationalization trend that had until then characterized the development of Soviet copyright law. In order to encourage private enterprise, in May 1922 the laws governing invention and copyright were revised to provide property incentives to the enterprising inventor and author. Under the terms of this law, copyright was recognized as a fundamental private property right, to be protected and encouraged.14

Revolution and reform 93 In the mid-1920s, the legal development of author’s rights in ordinary legal instruments, rather than extraordinary decrees, once again became a relevant issue. The shift in cultural policy that had initially taken place with the Bolshevik accession to power now underwent a further process of transformation. The Bolsheviks had been preoccupied with the problem of popular access to knowledge; they were prepared to prioritize accessibility over all other interests, including those of authors and artists. Indeed, the potential cooperation of at least some authors may have strengthened their resolve, though revolutionary zeal would almost certainly have driven them to continue even without their support. As the 1920s progressed, however, the relatively fluid relations between the government and the intelligentsia hardened into a new mould. The government’s need for culture was as urgent as ever, but it was combined with other factors that made matters less straightforward, including a need to control the circulation of knowledge and information. Authors and artists increasingly felt alienated, disillusioned, and victimized by the Revolution, a situation that is tragically symbolized by Mayakovsky’s suicide in 1930.15 The Soviet government had to make some effort to redress the disenchantment of intellectuals with the Revolution. In 1925, a new copyright law that reflected the changed circumstances of Russian socialism was drafted,16 and its provisions were refined in further legislation only three years later. The Copyright Act of 192817 was to govern authors’ rights in the Soviet Union for more than three decades, and would establish the defining principles of copyright law under Soviet rule.

The ghosts of the past: Soviet theories of copyright As the Soviet government retreated from its radical, revolutionary leadership, the distinction between legal theory and ideology became increasingly relevant to the interpretation of legislation. When the Bolsheviks initially came to power, they candidly acknowledged the absence of a developed socialist theory of law to guide them in the legislative domain.18 Marx’s treatment of law was incomplete and enigmatic, and received little elaboration in Lenin’s The State and Revolution of 1917.19 The Bolsheviks were only able to assert that Marxist society should enjoy a simple and direct approach to conflicts, one that would not require recourse to the complex framework of “bourgeois” legislation. In the course of the 1920s, Soviet jurists attempted to confront this theoretical void and develop a systematic approach to law based on Socialist values. The most influential pioneer of Soviet legal theory was almost certainly E.B. Pashukanis. His General Theory of Law and Marxism became the standard textbook analysis of law from the perspective of “historical materialism.”20 However, as Soviet power matured and lost its early veneer of idealism, Pashukanis’ insistence that law was by nature incompatible with a socialist society and would ultimately “wither

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away,” just as the state itself became unfashionable. His eventual fall from grace was terrible: he was among those destroyed in Stalin’s purges of the late 1930s.21 Pashukanis’ fate was symbolic of the fate to be endured by law itself in the Soviet Union. Theoretical impoverishment became a persistent problem in Soviet law, and could be traced directly to the pre-eminent role of ideology in Soviet government. If the development of a distinctively Soviet legal theory was a true intellectual possibility, it could probably have been realized only in the revolutionary early years. Even the Khrushchev period, despite the government’s hopes of a renewed, “socialist” legality, was arguably too sober and too disillusioned to allow socialist theorizing to develop in the legal sphere. Rather, the progress of Soviet law over the course of the twentieth century came to emphasize the importance of ideology over theory. Soviet law was strongly colored by the conventions of Marxist ideology. The impact of ideology on authors’ rights, with their potentially close connection to capitalist concepts like property and contract, was quite important. At the same time, the absence of a socialist theory of law meant that the Soviet law of authors’ rights, in its structure and content, retained many aspects of conventional copyright. The imprint of Marxist ideology is apparent in the copyright legislation of 1925 and 1928, which replaced the copyright regime of pre-revolutionary Russia with a “new,” Soviet regime. The first-ever piece of Soviet copyright legislation promulgated in 1925 was in fact closely based on the prerevolutionary act of 1911.22 As Levitsky points out, The framers of the Copyright Act of 1925 . . . had carefully abstracted the principal provisions of the 1911 Act, re-arranging them systematically into a dozen Sections, to serve as “fundamental principles [osnovy]” of copyright. Thereupon, each Section selected was carefully reviewed: What changes were needed to reflect new political realities, or new developments in the field of intellectual creation? . . . Only in very few cases were brand new Sections added which had no equivalents in the Copyright Act of 1911.23 The 1925 Act retained the conventions of Marxism in only two noteworthy respects. First, it limited the duration of copyright protection to 25 years from the first publication of a work, departing from the previously well-established principle of protection for at least the lifetime of the author in Russian law. In Levitsky’s view, the elimination of the concept of inheritance from Soviet law is the main reason for this change; in fact, the restriction of copyright term also fits with the rationale of the Bolsheviks in making collective access to knowledge and culture an overwhelming priority over individual prerogatives of authorship. However, it is worth noting that the shortened term was not exceptionally restrictive by international copy-

Revolution and reform 95 right standards: US law of the time offered protection for a 28-year term that could be renewed for a further 28 years, but, in the case of many works, the term was not renewed.24 Second, the Act repudiated the brief recognition of property rights in the copyright provisions of 1922 – the notion was apparently permissible in an emergency, but not as an established part of the Soviet copyright system.25 However, it should be noted that the Soviet squeamishness about property concepts was not an entirely new thing: the 1911 Act also represented a conscious departure from property-based rights for authors, and was in fact based on a sui generis model of copyright. The difference lies in the theory supporting the concept, as the reasons for rejecting property in the Soviet provisions were ideological in nature. The re-examination of the copyright principles of 1911 and their appropriateness for the Soviet regime undertaken in the law of 1925 was achieved fully only in 1928. As Levitsky observes: With the enactment of the . . . Copyright Act of 1928, the “crutch” of 1911 was no longer needed. Soviet copyright legislation was now fully on its own. The 1928 . . . Act represented a marked improvement over the [earlier act]: Where the latter was but a sketch, the new Act was a broad panorama.26 The Copyright Act of 1928 reintroduced some important substantive principles from Russian law into Soviet copyright legislation.27 In this respect, the legislation of 1928 brought Russian copyright full circle, from the comprehensive and ambitious Act of 1911, through a revolutionary interruption, and back to many of the 1911 principles in 1928. It restored the term of protection to the lifetime of the author, and an additional 15 years after his or her death. The 1928 law was to serve as the basis for copyright and moral rights in the Soviet Union until further revisions to the Civil Code in 1961 brought copyright within its ambit.28 As such, it provided the framework for copyright protection for most of the Soviet period. What was the theory of moral rights behind the 1928 law, and how was it subject either to change or to further refinement in the 1961 reforms? In keeping with Marxist ideology, the Copyright Act of 1928 avoided a property-based theory of copyright law. However, it did not return to the sui generis formula of 1911. Rather, it followed, and tried to perfect, a trend set in the 1925 legislation, towards distinguishing copyright from property. The 1928 Act dealt with the problem of property rights in two ways. In the first instance, the drafters tried explicitly to eliminate references to property and property concepts from the body of the law. An example from the 1925 Act, retained in the 1928 revisions, is cited by Levitsky, and deals with works of joint authorship: the Act of 1911 had specified that the relationship of joint authors was “analog[ous] to the rules applicable to joint

96 Revolution and reform property,” reproduced in the 1925 text such that “the relations between coauthors were governed by agreement.”29 A second approach was to continue to grant limited recognition to the property interests of authors, but to place them within the broader context of a non-property theory of authorship. Interestingly, the theory of choice was the protection of individual authors from the exploitative treatment of publishers – an idea that had already informed the 1911 Act.30 As expressed in a 1938 commentary on the Russian copyright law: In bourgeois society, the author’s right is a monopoly, establishing the exclusive right to distribute the products of science, literature and art. . . . [It] is characteristic that, except for a small group of bourgeois authors, the author’s right is the property, in bourgeois society, not of the author, but of the publisher, of a big capitalist, an industrialist. . . . [T]he author’s right in capitalist countries is made into a tool of the interests of the monopolist-publisher, a means of exploiting the author and retarding the cultural growth of the masses of the people. . . . The basic principles of the Soviet author’s right are completely different . . . [It] has the objective of protecting to the maximum the personal and property interests of the author, coupled with the assurance of the widest distribution of the product of literature, science and the arts among the broad masses of the toilers [my italics].31 In many ways, the substantive treatment of authorship in the 1928 Act retained a number of key resemblances to property rights, but they could be justified under a broad theory of authors’ rights and, in particular, on the grounds that the author needed to be protected against the interests of his or her publisher. In this way, Soviet copyright continued to originate automatically in the creation of a work, and the Soviet author’s right was exclusive and fully subject to alienation.32 For example, Section 7 of the 1928 Act provides that the author is entitled to “extract property benefits by all legal means from this exclusive right.” In keeping with the focus on authorship, the author’s personal rights were protected quite comprehensively. To a significant degree, however, the approach to personal rights continued to be indirect and understated: the implied reach of the law was actually somewhat broader than what was overtly expressed in its language. Section 7 of the Act protects authors’ right of attribution, allowing them not only the “exclusive right” to publish their work “under his own name,” but also, to publish under a pseudonym or anonymously, if they so choose. The structure of section 7, granting the author “the exclusive right to publish his productions,” clearly implies protection for the moral right of disclosure alongside the economic right of publication. The right of integrity is strongly protected in section 18. In keeping with the socialist model of protecting the author against the publisher, the right

Revolution and reform 97 specifically prohibits publishers and theatre companies from making any changes to authors’ work during their lifetime, without their consent. The publisher is even prohibited from introducing illustrations to the work without the author’s consent. Section 11 strengthens the integrity right in section 18 by providing additionally that the author’s right is protected from infringement where “no property interests” are at issue, a broad general provision protecting personal interests by implication.33 However, these rights are weakened by the presence of section 16, which states that the author’s right may be alienated “in whole or in part” on the basis of an agreement between the author and the publisher, or other legal authorization.34 The question of why the author’s personal right is protected by the oblique formulae of the 1928 Act is an interesting one. In fact, the possibility of specifying that property and personal rights would each be protected in Soviet copyright law in their own right was raised in the 1925 revisions, and even introduced in the draft version of the 1925 law.35 However, it was eventually eliminated, and an open reference to authors’ “personal rights” was not reconsidered until 1961. This is a curious feature of a law that purported to be based on individual authorship, and did in fact make provision for the protection of a number of moral rights in specific circumstances. Levitsky simply observes that “the legislature still hesitated in calling ‘personal’ interests by their name.”36 An examination of Russian and Soviet practice suggests that, in its conceptual ambivalence towards authors’ personal rights, the Act of 1928 followed an established pattern. Granting explicit legal recognition to the personal interests of authors might be inconsistent with a general policy of state supremacy in the realm of knowledge – the basic idea that knowledge and culture were to be controlled by the state, to serve its objectives and needs, while the interests of authors were definitely subordinate to its priorities.

Soviet copyright reform: from radicalism to cynicism The Copyright Act of 1928 proved to be surprisingly long lived, providing the basis for copyright protection in the Soviet Union for more than 30 years. Any adjustments that became necessary along the way were made through individual decrees and regulations issued by the government.37 By the late 1950s, however, the growing inadequacy of the law and the possibility of change under Khrushchev made possible a new process of reform. New copyright legislation was adopted in 1961.38 There were at least two important reasons behind the revision of the 1928 law. First, the law had become technologically outdated. The growth of communications and broadcasting technologies since the 1930s, including television, made it difficult for Soviet lawyers to continue to attempt the extension of the basic principles of the 1928 Act to the increasingly special cases thrown up by the new technological environment.39 However, a second

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and deeper problem was posed by the growing divergence between copyright law as it had come to be observed in the three decades of the Soviet Union’s existence, and the principles on which copyright was protected in the 1928 Act – after just one decade of socialist society, punctuated by the extraordinary circumstances of the Great War. As Levitsky points out, one of the major concerns of the era in relation to copyright was the need to “settle doctrinal controversies which . . . reflected the growing discrepancy between trends and concepts long accepted by jurisprudence, and the statutory terminology dating back to the NEP period.”40 The reforms of the 1950s resulted in the appearance of new copyright legislation in 1961.41 The new law showed substantial technical progress over the Act of 1928. A major innovation was to bring copyright into the Civil Code: although copyright had long been considered part of civil law, it was here included in the Civil Code for the first time since 1887.42 The law was also better organized and clearer in categorizing the various aspects of copyright protection, as well as being better suited to its function as model provision for enactment in the Civil Codes of the Soviet Socialist Republics.43 The technical improvements in the 1961 legislation should not, however, disguise the troubling reality that their overall effect was to tighten the Soviet copyright regime, restricting the rights of authors. The language of Article 98, while providing a basis for protecting both the economic and moral rights of authors, actually removes the promise of an “exclusive” right of authorship, a long-standing fixture of Soviet and Russian copyright law. Changes in the level of copyright protection include a reduced duration of protection: Article 105 provides only that copyright is protected for the lifetime of the author, without specifying any required duration of protection after his or her death. Moreover, the inheritance of copyright, and the assertion of the right by the author’s heirs under the 1961 provisions, was to be “limit[ed].” The main purpose of the limitation was to restrict the apparently exorbitant royalties enjoyed by many authors’ descendants; but the possibility of an author’s descendants asserting attribution or integrity rights is also implicated in the provision, and cannot be said to be favored by the law.44 Although the impact of the revision on copyright legislation was generally restrictive, moral rights did benefit from greater formal recognition than had been the case in previous Soviet, or even Russian, legislation. Moral rights in the 1961 Fundamentals of Civil Legislation reflect the generally improved technical quality of copyright law. The Fundamentals group the moral and economic rights of the author together into a single provision, Article 98 on “rights of the author.” Article 98 sets out three moral rights: a right of disclosure, or first publication, a right of attribution, and a right to the integrity of the work. In keeping with the tradition established in previous legislation, the right of attribution includes protection for the author’s right to publish under a pseudonym, or anonymously. However, the right of

Revolution and reform 99 integrity is greatly simplified from previous formulae, which specifically attempted to protect the author against the unauthorized intervention of the publisher. Rather, under Article 98, the author is simply assured, “the right . . . to the inviolability of the work.” This positive change is certainly connected with the political developments of the period. As Levitsky points out in his discussion of the implementation of the 1961 Fundamentals in the Civil Code of the Russian Soviet republic (RSFSR) in 1964, Article 499 of the revised Russian Code explicitly introduced the terminology of the “personal rights” of authors for the first time, a change made possible by the “more propitious ideological climate for [their] recognition.”45 The “Thaw,” a temporary loosening of ideological restrictions in the period of national reassessment after Stalin’s death, made it possible to think of greater freedom for authors under Khrushchev’s leadership. This would have affected the development of the new copyright provisions, embarked upon in the late 1950s. At the same time, it is important to recognize that the change of terminology flowing from the 1961 Fundamentals was not as legally significant as it might have been in different political circumstances. The new terminology became possible in a copyright regime that had systematically eviscerated moral rights over a period of decades, and where the terminology of “personal rights” could not conceivably damage the government’s ability to control literature and publication. The very real restrictions on authors’ moral rights arose, not from legislative provisions, but from the interaction of the legislative framework with conditions in a publishing industry that had effectively succumbed to state control over decades of persistent interference and restructuring by the Soviet government. This situation became pronounced after 1962, the year of publication of Alexander Solzhenitsyn’s One Day in the Life of Ivan Denisovich, the first work to chronicle the experience of individuals in Stalin’s concentration camps. The appearance of the book, openly and uncompromisingly describing what had so long been a common but taboo experience, unleashed a flood of public emotion, and marked the high point of “official tolerance” towards literature.46 The ideological climate after the brief respite of the Thaw shifted towards renewed repression and, in particular, affected writers very badly. Copyright and moral rights in the Soviet Union were to undergo one final series of revisions in the early 1970s. These changes were necessitated by the Soviet Union’s controversial decision to join the Universal Copyright Convention (UCC), with effect from May 27, 1973.47 UCC membership led to a loosening of some of the measures adopted in the 1961 Fundamentals. In keeping with international standards, the minimum duration of protection for copyright and moral rights was extended to the lifetime of the author and 25 years after his or her death – by no means the longest period of protection ever enjoyed by Russian authors, but an improvement over Soviet rules.48 Limitations on the payment of royalties to the author’s heirs were lifted. Significant changes were also introduced to the principle of “freedom

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of translation,” which had been a part of Russian copyright law from its inception: according to the revised Article 102 of the Fundamentals, the author or his or her heirs had to authorize translations, and, within its limits, this change represents a positive development for authors’ economic and moral rights in translations of their work. The moral rights of the author in Article 98 remained unchanged, although the Article included a new provision that the procedures for authorizing the use of a Soviet work outside the Soviet Union “shall be established by the legislation of the USSR.”49

The Soviet Union and international protection of copyright International copyright relations had always been problematic for prerevolutionary Russia. Tension continued to dominate copyright relations under the Soviet regime, and the theme of conflict between domestic and international priorities has recently resurfaced in the context of postCommunist Russia’s accession to the TRIPs Agreement and the WTO. It is interesting to note that Russia’s relationship with international copyright law is quite different from the situation of other Central and East European countries, most of whom had already acceded to the current version of the Berne Convention in socialist times, and many of whom were also members of the latest draft of the UCC.50 Historically, Russia has been ambivalent towards membership in international copyright agreements for economic and political reasons, as well as reasons of copyright tradition. Doctrinal issues arose because of the manner in which the government’s economic and social policy came to be expressed in copyright law, but they were also a product of Russia’s distinctive way of conceptualizing authors’ rights per se. In all three respects, a clear distinction could be drawn between the domestic objectives of Russian copyright law and the requirements of the international copyright community. Economic issues In grappling with the economic issues raised by the international movement of literature, Russia’s position closely resembled that of other “developing” countries. Relative to its European neighbors, who were keen to secure Russia’s participation in international copyright agreements in order to protect their own authors and publishing industries, Russia suffered from a degree of underdevelopment. Russia was both economically and socially “backward,”51 and both elements contributed to the conflict surrounding copyright. In Tsarist as well as Communist times, Russia had a tremendous need to make literature widely available to the public, in order to improve the general level of literacy and development. The historical survey of Russian copyright, and especially, the ways in which copyright was reshaped

Revolution and reform 101 by the urgency of popular education under the Bolsheviks, shows how deeply this problem influenced authors’ rights in Russia. In a sense, it was particularly important for the Russian public to have access to foreign works that might contribute to its development. However, recognizing the copyright of foreign authors would involve the payment of substantial royalties to foreign writers, translators, and publishers, potentially a heavy economic burden for the state. The dilemma is captured by Corien Prins in his discussion of the circumstances surrounding the Copyright Act of 1911, and the issue of Russian accession to the Berne Convention: The Russian Government stressed that joining the Berne Convention would result in a financial drain caused by the payment of royalties to foreign authors, mainly because of the massive consumption of foreign literature in Russia. Another reason why the government regarded the international convention with distrust was because it is thought to be an instrument to protect solely the interests of publishers, primarily French publishers, since Russia was the consumer of a large amount of French literature. In the eyes of the Russian Government the Convention would only cause damage to Russian authors and society. Those who considered it preferable to shift the Russian focus of copyright protection to an international approach, tried to convince the government that the above-mentioned arguments were wrong and obsolete . . . The advocates of joining the Berne Convention argued that the consumption of Russian literature in other European countries was no less than the consumption of foreign literature in Russia.52 Indeed, the decision to exclude copyright protection for foreign authors, and to subject them to the unrestrained application of the principle of freedom of translation even after Russian authors had been granted a measure of control over translations can be understood in the light of these considerations. Granting moral rights to foreign authors would also have the potential to restrict the use and dissemination of foreign works, as the results of a successful suit on the grounds of the integrity right, for example, could have important economic consequences, while the availability of legal protection might inhibit the dissemination of works.53 Concerns about the economic consequences of copyright protection in many of today’s developing countries have led them to object to the trend towards increasingly stringent protections for authors’ rights in the international copyright arena.54 Economic considerations were at the heart of Russia’s decision not to join the Berne Convention when it was adopted in 1886. Russian delegates, including so celebrated a name as Ivan Turgenev, were part of the early development of the ideas behind the Berne Union, but Russian membership was never considered to be a realistic possibility.55 In particular, the Berne Convention supported national treatment for all authors who were nationals

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of any of the member countries, and, in the Berne revision of 1908, the “complete assimilation of translation rights” into the author’s copyright.56 Russian authors would stand to make some gains from the ability to protect their rights abroad, and the main reason behind Russia’s early interest in international copyright was a belief among the intelligentsia that they stood to gain from international protection. Nevertheless, these provisions were difficult for Russia to accept on grounds of economic and social policy, and these policy concerns continued to dictate Russia’s policy towards international copyright law until the 1970s. Political issues The political issues surrounding international copyright protection were somewhat more complex. Tsarism and Communism, each in its own way, were absolutist forms of government. Both regimes experienced a need for ideological control. Under the Tsar, this need was reflected in a censorship regime. Because the Tsar had to control the appearance of authorized and unauthorized publications, copyright law developed as a part of the Tsar’s censorship program: authors and publishers who were able to control the appearance of unauthorized works indirectly helped to facilitate censorship. The Tsar also had to control the appearance of both domestic and foreign publications. Indeed, suspicion of foreign literature, which might bring dangerous ideas into Russia, was characteristic even of the rule of Peter the Great and Catherine I, though they were comparatively liberal, Westernoriented rulers. Notwithstanding this situation, Russia’s need for literature was such that Russian authors commanded a degree of legal space within which they could carry on their activities, leading to an author-centered copyright regime that tended naturally towards the recognition of moral rights. Foreign literature was completely denied copyright protection, and in particular, protection from unauthorized translation; but the Russian translators of foreign literature enjoyed the same personal and property rights as an author of original literature in Russian. Under the Communists, ideological control became an even more pressing concern of the government. The Tsar had been concerned with maintaining political power; the Communists had to exercise power by maintaining Communist ideology. The control and manipulation of authors was an essential part of this enterprise. Authors were drawn into a web of state activity – state publishing and broadcasting, ideological censorship of works before they could be published – from which they could not escape as long as they continued to be active in the Soviet Union. The alternative was to “write for the desk drawer,” or, through the 1960s and 1970s, to “selfpublish” works through the risky, private network of samizdat.57 However, publishing outside the Soviet Union might be another method of evading Soviet censorship, and this was one avenue of literary escape that the Soviet government would have liked to eliminate. For the Soviet government, pub-

Revolution and reform 103 lication abroad meant the loss of ideological control at home. It also had the unpleasant side effects of negative international publicity, and the possibility that anti-Soviet “propaganda” might reach the ears of the Soviet public by indirect means. Initially, the government’s concern that Soviet authors might acquire rights abroad that they did not have within the Soviet Union through copyright conventions contributed to its reluctance to participate in the international system. When the Soviet Union eventually did decide to join the UCC in 1973, the decision caused great concern, both within Russia and internationally, that the government must feel confident that it would be able to exploit its membership to repress further the activities of dissidents within the Soviet Union. The main objective of the Soviet government in joining the UCC was to secure some economic benefit to the country from membership. In contrast to the situation surrounding the Berne Convention almost a century earlier, the Soviet Union’s place in the world of publishing was quite different. As Newcity, writing in 1978, shortly after the Soviet Union’s accession to the Universal Copyright Convention, observes: Each year the Communist Party-controlled publishing houses of the Soviet Union print and disseminate more books than the publishers of any other country in the world. . . . Books in the Soviet Union are published in 89 of the languages spoken in the country, as well as in many foreign languages, and cover the entire gamut of subjects from the sciences to poetry and belles-lettres.58 However, membership in the UCC carried a genuine risk of increased powers of censorship. This problem was due to certain features of Soviet copyright law that allowed the government to acquire copyright in works, published or unpublished, by means of compulsory purchase. The relevant provision of the 1961 Fundamentals was Article 106, which stated that, “[c]opyright in the publication, public performance, or other use of a work may be compulsorily purchased by the state from the author or his heirs, in the manner provided for by the legislation of the union republics.”59 According to Soviet convention, copyright would be acquired by the state for a lump-sum fee paid to the author or his or her heirs, in an amount determined by the government.60 Since the acquisition of copyright was not a confiscation of rights in the work in a formal sense, it may not have been obviously contrary to international norms. However, the purpose of the provision was generally acknowledged in Soviet jurisprudence to be that of “compelling recalcitrant authors who showed no enthusiasm for sharing their work with society, and particularly of forcing their stubborn heirs, to do so.”61 It is interesting to note that Article 106 provides that only certain “uses” of an author’s work could be compulsorily purchased by the state. In effect,

104 Revolution and reform according to Soviet copyright doctrine, an author’s copyright could not be alienated in its entirety, even by the state. Moral rights of disclosure, attribution, and integrity in the work could probably not be acquired by the state.62 However, the extent to which copyright could be alienated by the author in accordance with Soviet doctrine remained unclear. As Levitsky observes: [T]he concept of “alienation of copyright in its entirety” . . . was permitted by the Copyright Act of 1928 but was persistently criticized in Soviet jurisprudence. . . . [A]n “alienation in part” of the author’s copyright . . . had also been permitted by the Copyright Act of 1928, but disappeared as a concept during the reforms of the early 1960s . . . Alas, the legal nature of the “transfer” would remain in doubt for more than a decade, and is still far from being resolved.63 Notwithstanding the limitations of the legal provisions on compulsory purchase of copyright, both the international community and Soviet authors themselves, were deeply concerned about the implications of membership in the UCC. No doubt, their interpretation of events was based both on the vagueness of Soviet legal theory in this area, and on the proven heavyhandedness of the Soviet government in its approach to law and legality. For example, a consideration of international moral rights cases involving Soviet authors shows that the Soviet government was able to act “on their behalf ” by “obtaining their permission.” At least in crude terms, if not in doctrinally correct ones, Article 106 could therefore allow the Soviet government to exercise copyright, and even moral rights, for the purposes of the UCC. It would thereby be in a position to restrict the publication of a work or its translation in any member country of the UCC, and, twisting the initial logic of the provision, suppress the publication of an unpublished work that was “in contradiction to the interests of socialist society.”64 If the government, relying on ambiguous legal provisions, considered its rights over acquired works to include the moral rights of the author, they could prove to be an important and particularly dangerous instrument of censorship. For example, the conformity of internationally publicized works with Soviet norms could be enforced through the integrity right, which the Soviet government could potentially assert in the name of the author. In fact, two examples illustrate how this kind of situation might arise in practice, and it is telling to note that both are cases involving the moral rights of the author. Not only did the Soviet state choose to rely on moral rights provisions to support its claims; its conduct also shows that, notwithstanding its reluctance to express them in copyright legislation, the government was implicitly aware of their importance. The first case arose in 1948, and involved a film entitled The Iron Curtain, featuring the music of four Soviet composers, Shostakovich, Prokofiev,

Revolution and reform 105 Khatchaturian, and Miashkovsky, in its soundtrack. The film chronicled the activities of Soviet spies in Canada, and its treatment of the subject matter was distinctly unflattering to the Soviet Union.65 The musical works featured in the film were all in the public domain; as the court said, they “enjoy[ed] no copyright protection whatever.”66 The Soviet government brought a suit in the name of the composers against Twentieth-Century Fox, the studio which had produced the film.67 The legal basis on which the state acted is unclear. In Soviet law, copyright passed by inheritance to the heirs of the author; the period of protection was relatively short, the lifetime of the author and 25 years after his or her death.68 There was no special provision in the Fundamentals regarding copyright in the public domain. However, Article 502 of the RSFSR Civil Code provided that works could be “declared the property of the state by the decision of the Council of Ministers of the RSFSR.” The idea of declaring a public-domain work state property can be traced back to the nationalization decrees of the Bolsheviks, and seems to be an informal procedure, justifiable by the state on arbitrary grounds of its choice.69 When this was the case, presumably, the Soviet government felt at liberty to deal with public-domain works as if it were responsible for their moral rights. In effect, the Shostakovich suit was a moral rights claim. In keeping with US practice in this area, however, it was assessed on the grounds of defamation: the “composers” argued that the association of their work with the film was damaging to their reputations, and should be barred. The court found that, unless the music itself had been distorted, the claim could not succeed. It is worth noting that, in the course of its decision, the New York District Court considered the possibility of protection for the moral rights of authors based on natural rights law. If it had accepted this approach to moral rights, the Court could have found violation of the composers’ moral rights based on principles of natural justice, notwithstanding the absence of authors’ moral interests from American copyright law. This astonishing innovation somehow escapes mention by most commentators on the case, but this precedent could in fact cast some light on the current debates surrounding moral rights in the US copyright community. Interestingly, the same suit was brought as a moral rights case in France, where, based on the natural rights rationale of French copyright law, it was possible at that time for authors of any nationality to expect protection of their rights of authorship in a French court.70 The French Cour de Cassation decided in 1959 that the authors’ moral right of integrity had been violated.71 It ordered the film to be removed from circulation, and awarded damages to the plaintiffs. A second case occurred in 1964, and involved a novel by Anatoli Kuznetsov, The Continuation of a Legend. When the work was first submitted to the Soviet publisher the author was told to modify it by “add[ing] more ‘optimistic’ passages” before it could be published.72 The modified version of the work was published; but shortly thereafter, a French translation, based

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on the original manuscript, appeared. Again, the Soviet government undertook a lawsuit “on behalf of” the author – in this case, proceeding on the basis of a “denunciation” of the translation “requested” from him by the Soviet state. Once again, the “author’s” claim that his right of integrity had been violated was upheld by the French courts, resulting in the withdrawal of the work from circulation and an award of damages.73 Interestingly, Kuznetsov defected to England in 1969. At that time he wrote to the French authorities, asking them to reopen the case and affirming his support for the French translation which “[captured] the very essence of my novel.”74 However, the case was never reconsidered in France. Newcity suggests that the case could not be reopened because of the expiry of a limitation period; but this is a peculiar conclusion, as French law of the time not only recognized moral rights in perpetuity, but also the right of all authors to rely on French legal provisions, regardless of nationality.75 These two cases of Soviet copyright protection abroad show how copyright law became entangled in issues of freedom of expression under the Soviet regime. They highlight the particularly close relationship between moral rights and free creative expression. The government of the Soviet Union was prepared to manipulate authorship rights for its political purposes, and, in these two important cases, it proved its ability to wield the most characteristic of authorship rights, personal or “moral” rights, against the authors themselves. Against this background, the fears of Soviet dissidents about the consequences of joining the international copyright community through the UCC seem well founded. The government’s own pronouncements in this regard were quite contradictory. Its statements ranged from aggressive assertions that it would attempt to suppress further the writings of dissidents and that “Western publishers would bear ‘legal responsibility’ ” for publishing their work,76 to assurances that “there was no intention whatsoever of applying the [UCC] against dissidents.”77 This situation suggests that the possibility of wielding copyright law against Soviet writers was, at the very least, a latent reality. For their part, writers and other dissidents believed in the gravity of the danger; one writers’ group lamented, Our books will be stifled not only during the lives of their authors, but forever, until the end of publishing on earth. This situation did not exist even in Stalin’s time, for the books then ended by coming to the surface, at least posthumously.78 Newcity, a contemporary observer writing shortly after the Soviet accession to the UCC, seems relatively optimistic about the internationalization of Soviet copyright. In particular, he argues that the Soviet government had no need to use copyright law for suppressing dissent: the “depressing” reality was that other, more effective means of control were available. According to him, criminal charges were among the strongest means of sup-

Revolution and reform 107 pression, and he mentions the suitability of Article 70 of the Russian Criminal Code on “anti-Soviet propaganda,” which was exploited for this purpose in the notorious show trial of Siniavski and Daniel, two Russian writers of fiction, in 1966.79 However, Newcity’s optimism towards copyright and his sense of its relative incorruptibility seem to lack a solid foundation. It is evident that Soviet writers and intellectuals lived and worked in an environment where law had come to be used as a powerful means of controlling expression. Creative expression, in particular, was vulnerable to quasi-legal challenges. It is important to recognize that copyright law was among the legal instruments that lent themselves to subversion by the Soviet government: authors’ rights were turned against authors, and contributed to their persecution, rather than assuring their protection. Russian copyright tradition Principles such as freedom of translation and lack of recognition for the rights of foreign authors departed substantially from international copyright practice. They reflected Russia’s different economic and social priorities as a less-developed jurisdiction, and the inevitable political constraints of an authoritarian system of government. Similarly, Russia’s failure to adopt the explicit language of authors’ “personal” rights until the 1960s may well be rooted in a long tradition of censorship and ideological control for political ends. Certain conceptual issues in Russian copyright law also suggest subtle doctrinal differences between Russian and international views of copyright, and should be identified. Three streams of copyright doctrine in Russia are particularly distinctive. First among these is the idea of a sui generis copyright, which quickly took root in preference to a property-based understanding of authors’ rights, and reflects both a fundamentally different approach to authorship from an ownership-based copyright, and a deeper understanding of the special nature of authorship than the concept of the author’s proprietary interests in his or her own work emphasized in civilian systems. The sui generis copyright means that authors’ economic and personal rights are closely intertwined, and that authorship enjoys a special and unique legal status. The practical implications of a sui generis copyright are similar to the German, Kantian approach to authors’ rights, which signifies that these rights can only be licensed and never assigned in their entirety. Nevertheless, the explicit legislative recognition of a sui generis right is distinct from German practice, and should be recognized as such.80 A second respect in which Russian authors’ rights may be doctrinally distinctive directly concerns personal, or “moral,” rights. The Russian emphasis on moral rights closely resembles French tradition. As in French law, the author’s personal right occupies a place of prominence in Russian copyright theory, and in a sense it is even at the origin of the economic rights. The attribution right is unusually broad, including the right to publish under a

108 Revolution and reform pseudonym, or anonymously. In keeping with French tradition, and somewhat differently from the international standard set by Article 6bis of the Berne Convention, the Russian integrity right is completely independent of the notion of damage to an author’s reputation: it is a pure right to the “inviolability” of the work. The right of disclosure, or first publication, is at the heart of Russian copyright law: copyright originates with the creation of the work, and all rights flow from the author’s choices regarding how he or she will exercise his or her right of first publication. The overlay of Marxist theory and, later, Soviet ideological control, is only a patina obscuring this distinctive doctrinal foundation without destroying it. Third, Russian copyright legislation of 1911 introduced the idea of an integrity right in the unique form of explicitly seeking to protect authors against their own publishers. Interestingly, this approach later found favor in terms of Soviet copyright theory, and remained a consistent feature of Soviet copyright law and reform. In view of current international controversies, this perspective is noteworthy; it distinguishes the Russian approach to copyright from its treatment in other countries. This conception of the integrity right suggests an interesting theoretical consistency in Russia – an ironic resemblance in the understanding of the relationship between authors and publishers held by the Tsarist and Soviet governments. However, the continuity in legal theory is set against the backdrop of a fundamentally different environment for publishing which, in Soviet times, was controlled as a state monopoly. The relationship between the state and Soviet publishing houses was an intimate one, on which the individuality of the author intruded. In theory, the state would support the author against his or her publisher, but this could only occur if the author had already met the ideological threshold set by the state. The unnaturalness of an alliance between state and author in these circumstances presages the incompatibility between the moral right of integrity and the Soviet regime that decades of Soviet copyright practice would only confirm. At present, a new practical context defined by the Digital Age once again brings a new significance to Russia’s inherited copyright concepts. The received aspects of Russian copyright doctrine may pose additional difficulties in reconciling Russian law with international norms that have increasingly moved towards the recognition and emphasis of a commercially oriented, property-based copyright in which the individuality of the author seems, at times, secondary. They may have presented subtle obstacles to Russia’s membership in international copyright agreements.81 These problems should be clearly distinguished, as far as possible, from issues of economic policy and political control: they involve essentially different perspectives on authors’ rights and raise the possibility of conceptual incompatibilities between Russian and international law. The point is noteworthy in the Russian context because, throughout Russia’s history, doctrinal issues concerning copyright have never really received serious attention. The economic and political conflicts between Russia and the international

Revolution and reform 109 community have been far too obvious to allow a systematic analysis of Russia’s own conceptual orientation towards authorship.

The status of authors’ rights in the Soviet Union After an early period of revolutionary uncertainty, the concept of a legal regime for the protection of authors’ rights came to be well established in Soviet law. The Soviet system of authors’ rights drew its inspiration from two sources: pre-Revolutionary copyright law in Russia, and Marxist ideology. Through its links with earlier Russian law, Soviet law was influenced by the contemporary models from France and Germany that provided the basis for copyright protection in the landmark Russian statute of 1911.82 Like Continental law, Soviet law recognized both the material and the personal interests of authors, and provided statutory protection for both. However, in different ways, socialist theory affected the development of both kinds of rights. Although the material interests of authors were protected, they were not acknowledged as interests in “intellectual property” per se.83 As for personal rights, an inherent tension between individual rights and collective interests led to some difficulties in formulating them.84 As Soviet law matured, the recognition of the non-material interests of authors gained greater acceptance in Soviet jurisprudence. Remarkably, legislative amendments to copyright between 1928 and 1961 were few; but the development of legal scholarship and experience through the decades helped to solidify the status of copyright, and in particular, to clarify the acceptance of authorship rights as a combination of property and personal interests.85 This change of approach was reflected in the revised copyright legislation of the 1960s, which adopted a systematic approach to authors’ moral rights for the first time.86 The new provisions included protection for three moral rights: a right of disclosure, a right of attribution, which included the right to publish under a pseudonym or anonymously, and an unusually broad right to the integrity of the work, known as the right of “inviolability.” In contrast to more limited international practice, the Soviet provisions on “inviolability” prohibited any mistreatment of the work, regardless of whether or not the reputation of the author was affected.87 Given the existence of this comprehensive legislative scheme for the protection of authors’ economic and moral interests, what was the reality of authors’ rights in the Soviet Union? The creative professions in Soviet Russia It is well known that, in the political climate of Soviet Russia, the practice of the creative professions carried high risks. Intellectuals and creative artists were perpetually in danger of antagonizing the Soviet leadership, with consequences ranging from the inconvenient to the deadly. Ironically, the

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prestige and authority traditionally attached to the intellectual and creative professions in Russia were partly to blame for this situation of intense tension. At the same time, the inherent incompatibility of freedom of the imagination with the aspirations of totalitarian power made it impossible to maintain a regime of true mutual tolerance between the state and creative people. Conflict between the political leadership and intellectuals was a longstanding reality of Soviet society, and is aptly characterized by Sheila Fitzpatrick as a fundamental tension between “power” and “culture.” The roots of this dichotomy can be traced back to the Tsarist era, which laid the deep foundations for the post-Revolutionary relationship between Soviet rulers and creators. The absolutism of the Tsar precluded the development of a generally favorable climate for free creative expression. However, the contribution of writers and artists to the cause of Russian development was invaluable, and led to a degree of official tolerance towards them. In a sense, creative people served as the conscience of the Tsarist state. This tradition of “alternative government,” by writers in particular, would continue through Soviet times.88 In contrast to the Tsar, the Bolsheviks had far more aggressive aspirations for social development. Their policies towards creative work were correspondingly more interventionist. The goal of the Bolshevik leadership was not to repress creative expression. On the contrary, the Soviet state sought actively to develop creative expression that would promote the political objectives of socialist government, and to manipulate the existing heritage in support of official policy. Both the Bolsheviks and the subsequent Soviet leadership hoped to forge an alliance with Soviet intellectuals and artists, who perhaps constituted the only alternative source of leadership in postRevolutionary society, based on the creation and maintenance of a workable balance of power between the two. Accordingly, only in its policy towards non-conforming or incompatible expression could the attitude of the Soviet state be identified as overtly repressive. For authors who succeeded in gaining and holding the favor of the state, conditions of life were actually quite attractive, providing stability and support for authors that substantially exceeded the typical circumstances of artistic life in Western countries. However, it is precisely the problem of artistic judgment – how to identify and punish the creation of a non-conformist work – that made Soviet cultural policy impractical. Quite simply, the difficulty arose because of a fundamental incompatibility between the creative needs of artists and intellectuals, and the political needs of the state. The Soviet state sought to enforce homogeneity and predictability; artists required freedom to explore and extend the boundaries of experience. Although state policy hinged on its ability to identify politically dangerous work, the state was exceptionally poorly equipped for this undertaking. Communist leaders were not in a position to judge effectively the political message that the public might

Revolution and reform 111 derive, either from a particular work, or from the personality of a given artist. After all, the problem of assessing the value and significance of new works of art, and the new artistic language expressed in pioneering works, are issues that often lead even experienced critics into embarrassing errors of judgment. As a result of this blind spot, the Soviet leadership was notoriously inconsistent in its dealings with creative work, leading to a situation of nightmarish uncertainty for creative artists. The successive waves of praise and condemnation endured by Shostakovich over the course of his career provide but one illustration.89 With the passage of time, the Soviet state increasingly attempted to tighten its ideological control of creative expression by instituting effective bureaucratic measures. It developed a sophisticated mechanism of censorship, enforced by a complex bureaucracy that made it ever more difficult for non-conformist works to see the light of publication, and through which the law of authors’ moral rights was filtered. Censorship and creative expression The effectiveness of Soviet censorship was due to its simultaneous impact on several levels in the process of creating and publishing a work. The need for comprehensive control of creative expression had its origins in the supremacy of the official political ideology, and the resulting need to control the proliferation of ideas in the artistic sphere. Soviet censorship operated in three ways. The state sought to bring the means of publishing and disseminating creative works as completely as possible within its control; it developed a system of cooperation with editors and, where necessary, of editorial coercion; and it exploited the ideological climate of repression to create a situation of perpetual doubt and fear in the minds of creative artists themselves. State censorship The rationale behind state censorship of creative expression was to maintain the state’s monopoly on ideas – in particular, political ideas, information, and ideology.90 This was achieved by a gradual process of infiltrating the means of publishing and disseminating works. By the 1960s, the Soviet state controlled virtually the entire publishing apparatus through a system of licensing requirements for publishing bodies, established early in the post-Revolutionary period, and by the extension of these bureaucratic requirements to new technologies for disseminating works as they arose. The Soviet licensing system originated in a law of 1932, which provided that publishing licenses could only be issued to “governmental, public, or cooperative organization[s].”91 As early as 1948, Gsovski points out that “the government monopoly of printing in the Soviet Union is in fact an essential limitation on the author’s right and should be borne in mind in the perusal

112 Revolution and reform of the laws on copyright[.]” Official control of the means of publication grew in strength over time, and provides an interesting illustration of how the “means of production” in the Soviet economy were generally monopolized by the state. From the perspective of authors, it was virtually impossible to evade the system of state publishing. The alternative of private publishing was not available. As for the possibility of publishing abroad, it had somehow escaped from being declared illegal, but it was certainly ill advised, as the practical consequences of doing so could be severe. Paradoxically, the freedom to publish outside the country depended as much on the indulgence of the state as publishing within the Soviet system. In the 1920s, Zamyatin had been successful in avoiding Soviet censorship by publishing outside the Soviet Union, but this technique was not pursued by writers for decades after his time.92 The tradition was almost unintentionally revived by Boris Pasternak, who published his “autobiographical” novel, Dr Zhivago, with Feltrinelli, an Italian publisher whose agent had obtained the manuscript on a visit to Moscow in 1957. The professional and personal consequences for Pasternak proved to be disastrous. As Hosking points out, the affair “played a part in undermining his health and perhaps bringing about his death in May 1960.”93 The state publishing bureaucracy was complemented by the establishment of a Union of Soviet Writers, whose official duty was to represent the interests of writers in the Soviet Union. The copyright side of literary matters was initially the responsibility of a special Department for the Protection of Authors’ Rights within the Union. In 1938, this Department was renamed the All-Union Administration for the Protection of Copyrights (VOUAP), and it was again revamped at the time of Soviet accession to the UCC, to become the All-Union Agency of Copyrights (VAAP).94 The rights and privileges of writers, including the protection of their economic and personal rights, were channelled through the VOUAP, leading to what Elena Muravina characterizes as the Union’s “monopolistic” control of authors’ rights.95 For non-conformist authors, however, the VOUAP was the lynchpin in the apparatus of state control over literary creation. Given its integration into the government publishing bureaucracy, Muravina refers to it as “[t]he servant of two masters,” and considers the features of the agency that made it more “organ of government” than “authors’ agent.” These included the fact that “half of the agency’s sponsors [were], . . . in fact, governmental committees and ministries” and the requirement that the VAAP had to surrender “all earned hard currency to the government” in exchange for a small commission, depriving it of the possibility of financial independence.96 Muravina’s assessment of the “fiction of VAAP’s independence” seems brutally realistic.97 The role of the Union was a much-contested issue at the time of Soviet accession to the Universal Copyright Convention. One dissident suggested that its name should be changed to the “All-Union Agency on the Expropri-

Revolution and reform 113 ation of Copyrights”; Newcity observes that the “threat . . . [of] deprivation of Union membership” was one of the tools of repression available to the Soviet state. Muravina points out that rejecting membership could lead to the “imposition of certain legal penalties against an author who took the risk,” and mentions the possibility of criminal charges for “conducting ‘antiSoviet propaganda’,” accusations of “parasitism,” or criminal prosecution for “conducting private hard-currency transactions.”98 The accusation of antiSoviet activity is illustrated by the Siniavski–Daniel prosecution of 1966, while the Brodsky case of 1963 focused on the offense of “parasitism.” In the latter case, failure to acquire Union membership deprived Brodsky of the right to claim that his literary activity was productive work, leading a Soviet judge to consider him a “parasit[e].”99 The editorial judgment of publishers Within the framework of state control over the publishing apparatus, the editors of publishing houses occupied an unusual position. In effect, they played the role of mediator between the state and the author. On the one hand, they acted as the state’s representative to the author; it was their role to assess the suitability of a work for publication, and, in areas of doubt, to determine the nature and extent of the changes necessary to make the work politically acceptable. Editorial judgment involved not only literary judgment, but also a crucial element of political judgment. Moreover, the editor had to weigh the work against the political mood of the day. By publishing the work, the editor presented the author’s work to the state, and his or her reputation as an effective publisher was also at stake in the project. The peculiar relationship between author and editor is described by Newcity: The essence of the author’s right to publish his work is found in his freedom to decide when a work is ready for publication. After the author has decided to seek the publication of his work, his rights are not the subject of negotiation. They are carefully and strictly limited by Soviet statutes and regulations. If, during the course of preparing the work for publication, editorial recommendations are made as to changes in the work, the author may refuse to accept these changes; the publishing house may not publish a work with changes or additions not approved by the author. But, of course, if the author refuses to permit the suggested changes, his work may not be published. The author’s right is confined to a decision whether to publish the work or to leave it “in the drawer.”100 In a sense, editors enjoyed a position of somewhat greater independence than authors: they were one step removed from the act of literary creation, and they were also endowed with powers to control literary works that were far out of the reach of authors. While it was unlikely that a strongly non-conformist editor would survive, it was nevertheless possible for a more

114 Revolution and reform liberal editor to find his or her way to a position of responsibility. An example was the journal, Novy Mir, edited in the Khrushchev period by Alexander Tvardovsky and Konstantin Simonov.101 During the post-Stalin period, the journal became a relatively liberal organ where non-conformist literature could appear. However, the limits of editorial independence, even at this period of unusual official tolerance, are clear in its refusal of the manuscript of Dr Zhivago, which, prior to its publication abroad, Pasternak had hoped would appear in its pages.102 Yevgeny Yevtushenko, who hoped to see his poem, “Stalin’s Heirs,” appear in Novy Mir, recalls the limits of Tvardovsky’s power; Tvardovsky, with the gloomy irony typical [of] him, . . . said to me: “I am not [a] fool. If [I] publish this poem, they’ll close my magazine immediately, so I give you good advice, boy: hide this poem as deep as you [can]; otherwise you’ll [be] immediately accused of anti-Soviet activities.”103 Self-censorship The ultimate effect of the Soviet publishing regime, its bureaucratic apparatus and its infiltration of the editorial process, was to create a climate of fear and uncertainty in the creative professions. The doubts experienced by authors were not confined to the practical problem, already grave enough, of whether they would be able to see their writings appear in print. Rather, from the moment a writer chose to release a manuscript outside his or her immediate personal circle, he or she was subject to the threat of discovery, abuse, and punishment. To release a manuscript was a dangerous act of trust in a regime where the cumulative effect of state policy had been to undermine and destroy trust systematically. Moreover, the editorial treatment of creative work took the form of a moral judgment on the writer and his or her work. For these reasons, the ideological censorship of creative works introduced a crippling element of self-doubt into the mind of the writer. Contemporary accounts suggest that the psychological impact of official censorship was tremendous. One writer describes the internalization of the state censorship mechanism, the presence of an “internal censor” within his mind. His decision to write and edit a samizdat, “self-published,” journal was largely a therapeutic affair, an attempt to escape from this state-imposed mental restriction.104 The role of the “internal censor” was not confined to the assessment of whether a work would be acceptable for absorption into the publishing bureaucracy. Rather, the mind of the writer also became clouded with uncertainty about his or her own ability to make artistic, and even ethical judgments. The ideological manipulation of the Soviet state took many guises, and included the exploitation of patriotism and national duty, profoundly moving themes for Russians. Perhaps this explains why creative people were at times led into doubting their own integrity. As Hosking points out:

Revolution and reform 115 Both Marxism and Russian nationalism were raided to produce a crude, reductionist and paranoid view of the world, which was made obligatory for every artist, scientist and scholar, indeed for anyone who wished to get into print. Yet, like all paranoid visions, it had its own internal consistency and its own compelling logic.105 Hosking goes on to quote from Vasily Aksenov, a dissident novelist, who describes, alongside the admiration of his generation for banned writers like Akhmatova and Zoshchenko, a profound distrust of their own literary judgment: “[E]ven then deep down – yes, deep down – we were convinced of the normality of Zhdanov’s world and of the abnormality, sickliness and shamefulness of Zoshchenko’s.”106 If the tight bureaucratic control of creative expression affected the ability of writers to publish works of literary and social value, the psychological effects of the censorship regime were still more pronounced. Writers could attempt to escape from the publishing bureaucracy, if only by writing “for the desk drawer,” or by publishing through samizdat. However, evading the internal censor was a more complex undertaking. The mind of the writer found itself in a zone of “unfreedom.” Yet imagination is essentially a free process, with judgment and the elimination of unworkable ideas coming at a much later stage in the fashioning of a work. Internalized censorship therefore threatens creativity with destruction at its very root. Indeed, there can be no doubt that this was the tacit aim of the Soviet censorship regime. The quest for ideological domination meant, above all, the complete elimination of competition in the realm of ideas. Yet – perhaps even in spite of themselves – writers, by the very nature of their profession, could hardly avoid infringing upon the state’s monopoly of ideas. The interpretation of copyright and moral rights The pervasiveness of Soviet censorship translated into extensive practical limitations on the ability of authors to exercise their rights. Indeed, the norms of censorship were reflected in the interpretive principles governing copyright and moral rights. As often happened in Soviet law, these interpretive principles were not expressed openly in statutory provisions or other official instruments, but they were tacitly understood guidelines that imposed political limitations on authors’ rights. Moral rights provide an instructive example of this approach. Three interpretive principles should be emphasized. First, the Soviet right of attribution, which normally included the right to publish a work under a pseudonym or anonymously, was limited by a general understanding that it would be overruled if “concealing the author’s true identity harms Soviet society.”107 However, the circumstances in which the author’s identity may be revealed are not specified in the Fundamentals. Indeed, the right of attribution could easily be twisted to serve the interests of the state – for

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example, by linking authors’ to their work in order to incriminate them, rather than protecting their rights to recognition and reputation.108 Second, the right of disclosure was restricted in practice by the government’s exclusive control of the means of publishing and disseminating works. In effect, it was up to the Soviet publishing house, rather than the writer, to determine whether a work was fit to appear before the public. The fact that this determination was likely to be made on political grounds presents a contrast to publishing industries elsewhere. In the Soviet context, the author would have no alternative but to accept the decision of the publisher, who was effectively a representative of state authority. It is worth noting that publishing in the rest of the world may depend as much, or more, on considerations of potential profitability than on the literary merits of a work. Given the increasing dominance of the mass market for literature, this arguably amounts to a form of censorship in its own right. However, the situation has interestingly been reversed in the Digital Age by the development of the Internet and desktop publishing facilities, which offer the promise of placing control of publication firmly in the author’s own hands. Third, and perhaps most significantly, the Soviet author’s right to the inviolability of his or her work was restricted by the practical limitations of the publishing and distribution landscape in the Soviet Union. Although the inviolability right appears as an unusually powerful right in Soviet legislation, authors could only exercise this right effectively against other Soviet citizens who misused their work. They could not expect to invoke their right of integrity against the abuses of publishers or distributors, where earlier legislation had recognized that it might be most needed, since the latter’s activities were carried out on behalf of the state.109 A discussion of the interpretive principles shaping the development of Soviet copyright law would not be complete without a consideration of how Soviet courts dealt with copyright disputes. However, in dealing with Soviet case law on copyright, it is important to be aware of two caveats. First, while it is generally true that case law is somewhat less significant in civil law jurisdictions than in the common-law world, socialist legal systems were characterized by the extreme predominance of statutory law over judicial decisions. Second, and perhaps more in keeping with the restrictive approach to information under Communist government than in civilian tradition, the publication and dissemination of court rulings in Soviet Russia appears not to have been as systematic as in the West.110 In the years from 1917 to at least the mid-1970s, when the Soviet Union joined the Universal Copyright Convention, Soviet courts appear to have been extensively involved in the interpretation and application of copyright law. However, it is difficult to draw broad conclusions about Soviet copyright jurisprudence – or indeed, to confirm the development of a body of precedent in the usual sense of the term. Continuity was a goal that eluded Soviet courts, for reasons which were

Revolution and reform 117 far from being entirely within their control. In particular, the decades from the Bolshevik takeover to the reform of the Soviet Civil Code in the 1960s saw the proliferation of countless official decrees and orders on copyright matters, all of which sought to clarify the legal and ideological confusion generated by the Revolution and its legislative aftermath. Cases in the 1920s dealt with issues related to fundamental questions about the status of the law itself. For example, questions arose regarding whether or not the work of particular authors had been nationalized, and if so, what exactly the fact of nationalization signified. In particular, what was the status of works that had been nationalized by the Decree of November 26, 1918, when the Decree itself had been repealed by a later pronouncement of April 12, 1926?111 On final hearing, an appeals court overturned an earlier ruling to find that the nationalization accomplished in the first Decree should continue to be recognized.112 Crucially, nationalization itself appeared to be something different from what it had at first seemed. The avowed purpose of nationalizing works of culture had been to make them available to the masses of the Russian people for their betterment. Yet nationalization, as interpreted by the Soviet courts, did not mean unrestricted public access to works: it meant that the government had rights of control over these works that virtually replaced the earlier rights of the copyright-holder. In the case of works that were already in the public domain, government control effectively replaced free public access. Early Soviet case law also witnessed countless difficulties in the interpretation of contracts between authors and publishers, especially in relation to performances of dramatic and musical works. Related technological issues also surfaced, with at least one early case addressing the question of whether a radio broadcast should be subject to the payment of copyright royalties. Interestingly, many of these cases not only involve defining and determining the infringement of copyright, but they also entail detailed calculations of royalties. In very early cases, the courts seem to have been more prepared to recognize the royalty claims of authors, seeing their work as being somewhat akin, within its own context, to the efforts and problems of other kinds of “workers.” However, the equation of intellectuals and artists with other “workers” entailed certain hazards, as illustrated by the label of “parasitism” imposed on the young Joseph Brodsky in 1963 by an unsympathetic Soviet judge who felt he lacked the credentials proper to a poet.113 The early cases show a degree of earnestness on the part of Soviet courts as they attempted to clarify the abundance of legislative direction, much of it self-contradictory, from the central administration. Later cases, however, faltered for lack of coherent guidance from earlier precedents. Judges showed a clear propensity to enter into areas of commentary that exceeded the bounds of copyright law, venturing into the realm of the artistic. In the process, they made what observers from Western countries would now consider “misapplication” of copyright principle – for example, commenting on the quality of works in question as having a bearing on copyright disputes.114

118 Revolution and reform In a pair of Decrees issued in 1967, soon after the adoption of new Civil Code provisions on copyright law, the Soviet government sought to address the problem of an incoherent doctrine of copyright developing in the courts. Accordingly, “[f]or the purposes of the correct and uniform application of the legislation on copyright” – and, indeed, specifically in order to address “certain questions which have arisen in judicial practice” – the Supreme Court of the Soviet Union set out a number of instructions on basic copyright principles. From the perspective of a Western-trained copyright lawyer whose experience is generally far removed from the realities of a country recently transformed through Revolution, some of these instructions appear to be of mind-numbing simplicity. For example, the first of the two Decrees specifies, in Article 1, that “copyright extends to works of science, literature, or art and is protected regardless of the form, purpose, and merit of the work, and also regardless of the method of its reproduction.”115 Another example might be the restatement of the need for a contract of assignment to authorize the use of a work, already established by Article 101 of the Fundamentals of 1961, and framed accordingly in the Russian law of 1964 – subject, of course, to the state’s capacity to exercise its rights of compulsory purchase over a work.116 Yet these provisions, like others in the Decrees, addressed actual issues confronted by the Soviet courts. The Decrees not only dealt with judgments of quality, but also somewhat more technical issues of copyright, like the standards for determining co-authorship,117 and the moment at which first publication is deemed to have occurred.118 A reading of these documents also confirms the nature of the legal and administrative web in which the activities of authors were enmeshed. The Decrees are littered with references to “compulsory licensing” provisions in Soviet law, and they contain many provisions that would now appear likely to restrain the creative freedom of authors. The main Decree makes general use of uncomfortably ambiguous terms and expressions – “bad faith” on the part of the author, demonstrated by “distortion of facts” or “distortion of the original in a translation,”119 and “the refusal of the author to make corrections in the work proposed by the [publishing] organization in the manner and within the limits established by the contract.”120 In other jurisdictions, these kinds of comments might not seem so deeply significant – although these “major chords” in the Soviet approach are reflected in a “minor key” in Western jurisdictions. The rigidity of author–publisher relations is a reality of Western copyright practice, where publishing contracts are often defined by standard terms that are essentially non-negotiable for most authors.121 In accordance with Soviet civil procedure, authors would rarely appear as individuals before the courts in copyright complaints, their interests represented instead by the Soviet collective agencies charged with their representation – notably, VAAP.122 This procedural practice represents, more generally, the preoccupation of Soviet copyright law with rules and standard practices, while the author him- or herself, remained notably in the

Revolution and reform 119 background. Whatever else may or may not have been true of Soviet copyright, the system was clearly not aimed at the protection of authors’ rights as individual creators in any meaningful sense. Accordingly, it is perhaps fitting to note that, in the entire history of Soviet copyright law between 1920 and 1976, not a single case appears to have been heard on authors’ moral rights – perhaps the ultimate legislative expression of authors’ individuality and the rights arising out of their uniquely personal relationship with their own work.123 It may be true that the incidence of moral rights cases in Western jurisdictions, though regular, is also somewhat infrequent. However, two considerations should be kept in mind. First, the incidence of moral rights cases is rising, with important disputes having been heard in Canada and the UK, traditionally somewhat inactive jurisdictions in this area, in recent years.124 Second, the similarity of appearances between Soviet and Western jurisdictions should not mask a completely different underlying reality. In Western countries, particularly those that traditionally embrace strong protection for moral rights, a plausible explanation for the relatively small number of cases may be the fact that the environment for the publication and use of literary and artistic works is conditioned by social norms of support for these rights, which are then reflected in the practices of the industry. The extensive development of moral rights in Western legislation would seem to be an expression of their social acceptance. “The Thaw” and the ideal of “socialist legality” The moral collapse of the Soviet leadership after Stalin’s death led to a period of unexpected and unprecedented political freedoms for the public. The government had become highly ambivalent about the consequences of continuing to repress knowledge, particularly in view of the difficult historical realities with which the nation somehow had to come to terms. Not least among its concerns were fears about the consequences of terror for the political elite, which, in its own way, had been as much a victim of Stalin’s paranoia as any part of Soviet society. Creative expression benefited greatly from the lifting of restrictions. While there were still limits on what could be published, and how, as demonstrated by the fiasco surrounding the publication abroad of Pasternak’s Dr Zhivago,125 a number of controversial works nevertheless appeared. This period came to be known as “The Thaw,” after a novel by Ilya Ehrenburg. Andrei Siniavski and Yuli Daniel were among the writers and intellectuals who were caught in the shock wave following Khrushchev’s revelations. Both of them wrote and published literary pieces that reflected the complex spirit of the times, although, due to their continuing uncertainty about the acceptability of the works to Soviet publishers, they appeared in foreign publications. The loosening of political restrictions reflected the Communist Party’s

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tottering legitimacy in the wake of Stalin’s death. Ideology no longer seemed to provide an adequate justification for the sufferings of the Soviet population under Stalin’s rule, much less a basis for the continued political domination of the Party. In its search for ways to renew its leadership of Soviet society, the government turned towards law and legality. Law presented a potentially powerful means of supporting the legitimacy of Party authority after Stalin, and it offered the seductive possibility of restoring a degree of stability, or “normality,” to Soviet life.126 The goal of re-establishing a semblance of legality in Soviet life featured prominently in political discourse of the Khrushchev period. The government was especially keen to demonstrate that legality and the rule of law could be compatible with socialist ideology. “Socialist legality,” as Soviet leaders styled the new politics, was to provide a viable basis for the rational development of Soviet society after Stalin. Among the political benefits of socialist legality was the crucial possibility of reopening dialogue between the Soviet state and literary authors, by helping to clarify the boundaries of the future relationship between the two. The new administration was keen to regain the tolerance, if not the political and ideological support, of writers and intellectuals. Ironically, it was the national sensation generated by the publication of Solzhenitsyn’s Ivan Denisovich, widely exposing the realities of Stalinist repression to the Russian public from the personal and intimate perspective of a single victim’s point of view, that aroused the party’s fears about the deeper consequences of ideological liberalization. As it became apparent that the maintenance of political control depended anew on the imposition of order, the Soviet leadership attempted, once again, to tighten its restrictions on creative expression. However, it proved to be difficult for the government to retrace its steps on the path of greater accountability. Rather, the Soviet leadership confronted the challenge of re-establishing control while appearing to maintain consistency with its own discourse of renewed legality over the course of the previous decade. These conflicting forces were to experience the ultimate collision in the notorious show trial of Siniavski and Daniel, which established, once and for all, the incompatibility of the literary imagination with the politics of totalitarian government.

Conclusion Soviet copyright law must be understood in the context of the Soviet system for publishing and disseminating creative works. Soviet authors functioned in a system where the publication and distribution of literature was monopolized by the state. The state publishing apparatus determined whether or not a work would appear, and if so, in what form. The exercise of authors’ rights was the monopoly of a central agency, the All-Union Administration for the Protection of Copyrights (VOUAP), a branch of the Union of Soviet Writers.127 Similarly, when the Soviet Union joined the Universal Copyright

Revolution and reform 121 Convention, a successor agency was created out of VOUAP to administer the international copyright dealings of Soviet authors in accordance with the new treaty, the All-Union Agency of Copyrights (VAAP). The extreme limitations on authors’ rights within this framework of central control were already noted by Gsovski as early as 1948: [T]he government monopoly of publishing and printing . . . has reduced the rights of the author provided for in the copyright laws of 1928 to the right not to publish his work and to the right to be paid if a government publishing office publishes his work, whether with or without his consent. But in order to be published, a literary work must . . . [contribute] directly to one or another goal set by the government. . . . “Any preaching of absence of ideology and of keeping literature out of politics” [sic] is severely condemned. Lenin’s motto that “every literature must be Party literature” is emphasized as the expression of the Soviet approach to literature. . . . [It is] clear that the government monopoly of printing in the Soviet Union is in fact an essential limitation on the author’s right and should be borne in mind in the perusal of the laws on copyright.128 The economic rights protected in Soviet legislation enjoyed some practical enforcement through the mechanisms fixed in place by the central administration. The system was essentially one based on the collective administration of rights, with recognition for these rights, in turn, depending on the proper observance of Soviet publishing protocols. Foremost among these was the cooperation of authors with the bureaucracy that governed their right to creative expression. If they consented to do so, however, they could rest assured that the system would support them, at least in matters related to their rights of economic compensation. The situation of personal rights was far more ambivalent. In effect, of all the personal rights that Soviet legislation claimed to protect, the right of disclosure alone was imbued with real substance and meaning. However, this right, too, gradually came to be eroded, as the government demonstrated its willingness and ability to seize an author’s unpublished works and use them for political purposes, a situation that had not yet become fully apparent in Gsovski’s time.129 Unfortunately, in contrast to the problems of economic copyright, few traces remain of any instances where moral rights were addressed by Soviet judges. It is therefore necessary to rely almost entirely on statutory provisions in interpreting Soviet moral rights law. The concept of political limits on authors’ rights is not unique to the Soviet copyright system. Indeed, Article 17 of the Berne Convention allows member countries to “permit, to control, or to prohibit, by legislation or regulation, the circulation, presentation, or exhibition of any work or production in regard to which the competent authority may find it necessary to exercise that right.” This provision is widely understood as a censorship

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measure, though it is presumably not meant to be invoked readily, or without adequate justification.130 In spite of these factors, it should be noted that the Soviet regime for authors’ rights was not totally devoid of effect. The Soviet Union did have a developed tradition of copyright law. However, its applicability was limited to those writers who worked well within the limits of the ideologically permissible. The provisions on moral rights would have been sufficient to protect them from the misuse of their works, for example, by theatre companies and other users – and indeed, the occasional case concerning the “inviolability” of an author’s work apparently did appear before the Soviet courts, though little record of moral rights jurisprudence remains.131 Nevertheless, in cases involving the misuse, within Soviet terms, of an author’s work, the courts were prepared, at least on occasion, to uphold the author’s claim.132 Inevitably, these considerations provide cold comfort in a general climate of disillusionment and despair. The question becomes whether imaginative literature can survive at all in such circumstances – whether the constraints imposed on freedom of thought by the politics of ideology leave any meaningful jurisdiction to the imagination. The substance of authors’ personal rights, and what they truly signified in Soviet society, was to be tested conclusively in the 1966 trial of Siniavski and Daniel, and found disturbingly empty.

6

Creative freedom on trial The Siniavski–Daniel case

In the winter of 1966, a frustrated and fearful Soviet government decided to make an example of two Russian writers, Andrei Siniavski and Yuli Daniel. The prosecution of Siniavski and Daniel occurred at a turning point in Soviet history, when a shadow of uncertainty clouded the political horizon for the first time in decades. Following the death of Stalin in 1953, Soviet society experienced a sudden release from the crushing grip of this notorious dictator. Khrushchev’s “secret speech” to a special session of the Communist Party in 1956 acknowledged, for the first time, the horrors of the personality cult.1 A full exposure of the scale of suffering in Stalin’s prison camps was to be revealed to the public at large a short time afterwards. By an appropriate irony, the truth was at last disclosed in a work of fiction, with the appearance of Alexander Solzhenitsyn’s chronicle of “zek” life, One Day in the Life of Ivan Denisovich, in 1962.2 The “secret speech” triggered a period of great uncertainty in Soviet life. The unmasking of Stalinism generated the first opportunity in decades to reassess the basic principles on which Soviet state and society had been raised. Creative expression was deeply implicated in this transformation, through its earlier victimization, and through its possible contribution to public atonement. Under Stalin, writers and artists had been subject to a unique form of repression, physical and psychological, personal and professional in nature. The loosening of political restrictions on expression after Stalin’s death created an important opportunity for them to come to terms with their own sufferings. The resurgence of creative expression in the period of the “Thaw” threatened to revive the carefully controlled and regulated ideas, emotions, yearnings, and aspirations of the Soviet people.3 The Communist Party could not tolerate this sudden and unexpected unravelling of its monopoly on ideas – in particular, the restriction of political ideas on which its continued survival was directly dependent. From the Party’s perspective, the Thaw unexpectedly threatened to release the frozen waters of a vast river of public opinion, which no dam, least of all the uncertain authority of the Party, could restrain. True, Siniavski and Daniel were two mere twigs in the flood. Yet their position as representatives of the new literary rebirth was deeply

124 Creative freedom on trial symbolic, and the fate of two men could indeed alter this mighty river’s flow. In its struggle, the Communist Party chose the most powerful new weapon at its disposal: the law. The trial of Siniavski and Daniel was designed to showcase the principles of socialist legality, while clarifying the limits of free expression in postStalin society. The writers were charged under the Soviet Criminal Code; yet evidence in support of the criminal charges was, at best, contentious. It was unclear whether the actions of the two writers actually contravened Soviet criminal law. The prosecution made little effort to establish conclusive legal proof, by Russian or international standards, of either the facts underlying the accusations or the more complex question of the legality of the writers’ conduct. From the perspective of copyright law, the conduct of the prosecution presented a rather gruesome contrast to the provisions of Soviet civil law: acts that were formally permissible, and actually provided for within the terms of Soviet copyright legislation, themselves became the subject of criminal charges. The contradictory requirements of a commitment to “socialist legality,” on the one hand, and renewed control of creative freedom, on the other, experienced a headlong collision in the prosecution of Siniavski and Daniel. Both principles could not survive the impact. The trial revealed that the conflict between legality and Soviet socialism was, in truth, irreconcilable, while the concept of a uniquely accomplished Soviet copyright law was shown to be profoundly flawed. Copyright, without the surrounding nebula of animating forces – the human rights of individual citizens, specific rights to free thought and expression, and respect for historical and cultural truth – was meaningless. If the Soviet system could bring some credence to a socialist notion of literary or creative property, as case law of the period goes some way towards demonstrating,4 the regime was still irredeemably incompatible with the idea of a moral right of the author. Moral rights, which protected personal, creative, and cultural interests through the mechanism of copyright law, were fundamentally at odds with a regime that failed to recognize creative rights along with most other aspects of intellectual or psychological freedom. The Siniavski–Daniel proceedings established, once and for all, that literature, as the supreme profession of ideas in Soviet Russia, inevitably had a political role to play in giving voice to dissent – or, as the dissidents themselves may have said, in making possible “otherthinking.”5

The trial Facts of the case Andrei Siniavski and Yuli Daniel were Russian writers of fiction. Siniavski was the more established author of the two, having built a solid literary reputation by the early 1960s. Siniavski was not only a writer of fiction, but

Creative freedom on trial 125 was also a literary scholar and critic whose name had come to be closely associated with the works of Boris Pasternak, the celebrated Russian writer, poet, and dissident.6 The writings of Daniel were not as widely circulated among the Soviet public; Max Hayward points out that, “[u]nlike Siniavski, Daniel – until his trial – had scarcely any public reputation in the Soviet Union.”7 Daniel’s literary activities were more specialized, and included translations of poetry from Yiddish and other Eastern European languages into Russian.8 Siniavski had published extensively in the Soviet Union during the 1950s. Like other Soviet intellectuals, however, his belief in the Communist system was severely shaken by the revelations of Stalinist oppression following Khrushchev’s “secret speech.”9 In the late 1950s and early 1960s, he began to publish his writings abroad under the pseudonym of “Abram Tertz.” The works which Siniavski published abroad were substantially different in character from those that he had published earlier in the Soviet Union. While his earlier writings could not be characterized as aggressively anti-Soviet, he had progressed towards an increasingly critical view of the Soviet state and society. No doubt, the change in Siniavski’s style reflects the inevitable progression of his ideas and ideals after 1956; from a strictly ideological standpoint, it also makes the body of his work appear internally inconsistent.10 The charges against Siniavski were based on three works published abroad under the pseudonym of “Abram Tertz”: “On Socialist Realism,” an essay; “The Trial Begins,” a short story; and a novel, The Makepeace Experiment (Lyubimov). In the course of the proceedings, the prosecution also brought a number of other works as evidence against Siniavski. They included at least one unfinished and unpublished essay.11 Daniel, the co-defendant, had attempted to publish only one original work through the Soviet publishing system, a short story that was never publicly released.12 However, four of his short stories, submitted under the pseudonym of “Nikolai Arzhak,” were printed by foreign publishers and received great critical acclaim outside the Soviet Union. These four stories constituted the main part of the evidence against Daniel.13 Two of them had appeared in English translation – entitled “This is Moscow Speaking” and “Hands” – while the others were printed in the original Russian.14 These works of fiction had a strong satirical flavor, and indeed, they easily lent themselves to interpretation as works of political allegory. Of Daniel’s writing, in particular, Hayward points out that it is in essence “sharp political satire.”15 Apart from their literary merits, it is hardly surprising that these kinds of works appealed to foreign publishers and critics of the Cold War era. The writers’ work offered rare insights into a society that was remote and inaccessible, yet terribly important to the West. They also struck a chord with Western values in the strongly anti-Soviet spirit of the times. For example, Time magazine did not hesitate to refer to Siniavski as “a bitter opponent of Communism.”16

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Although both Siniavski and Daniel employed techniques of satire, their artistic personalities were quite different. Siniavski’s main literary preoccupation was how to develop a creative style that would be adequate to describe the contradictions and absurdities of contemporary Soviet society in the wake of Stalinism. To resolve this problem, he adopted a “fantastic” style, which he believed would allow him to shed light on Soviet reality and make it easier for the reader to digest through imaginative extravagance and absurdity. Hayward calls this Siniavski’s “literary technique of ‘fantastic realism’.”17 In his essay, “On Socialist Realism,” Siniavski himself defines the artistic need of the times in terms of a phantasmagoric art with hypotheses instead of a Purpose, an art in which the grotesque will replace realistic descriptions of ordinary life. Such art would correspond best to the spirit of our time. May the fantastic imagery of Hofmann and Dostoevsky, of Goya, Chagall, and Mayakovsky (the most socialist realist of all), and many other realists and non-realists teach us how to be truthful with the aid of the absurd and the fantastic.18 While he had evidently been influenced by the writing of Siniavski, Daniel’s satirical writing was harsher and more direct. His story, “This is Moscow Speaking,” develops around the declaration of a “Public Murder Day” by the Soviet government, during which all adult Soviet citizens will have the right to kill anyone, with the sole proviso that the intended victim must not fall into certain prohibited social categories. A passage in which the hero contemplates murdering the architects of Stalin’s purge of 1937 was frequently cited by the prosecution as evidence that the true purpose of the piece was to incite readers to violence against Soviet leaders. The subtlety of the hero’s expression of outrage against the event, already subject to official condemnation by Khrushchev, seems to have escaped the prosecution. Ironically, the conclusion of the passage, in which the hero has nightmare visions of the violence he witnessed as a soldier, is a whole-hearted condemnation of violence, even when it appears to serve justifiable ends.19 The tension between means and ends, especially in circumstances where change is strongly desired, is in itself an established theme of Russian literature, featuring prominently, for example, in Dostoevsky’s writing.20 Whatever the literary merit of their works might be, Siniavski and Daniel could rightfully claim their place within the long and distinguished tradition of social criticism through imaginative literature in Russia. The authors’ preoccupations with the social problems of Soviet Russia and their innovative approach to literary structure and style situated them firmly within established literary tradition. Not only did the two writers exploit the possibilities of satire, a style typical of Russian literary expression in both Tsarist and Communist times, but they also employed the literary techniques developed by classic Russian writers. For example, Siniavski and

Creative freedom on trial 127 Daniel wrote extensively in “skaz,” where a story is told in the first person by a fictional narrator whose personality is distinct from the author’s.21 Skaz is described by Reeve, an English critic, as “a colloquial, mimicking manner of narration derived from oral traditions.”22 Dostoyevsky, again, was famous for his use of skaz, and it was perhaps this characteristic resemblance that led some foreign critics to compare the writers with their great predecessor.23 Skaz has the interesting implication that opinions expressed by the narrator of the story do not necessarily represent the author’s opinions and, indeed, may not correspond to his personal views at all – a literary subtlety that was disregarded by the prosecution in the Siniavski–Daniel trial. The charges After some initial hesitation about the appropriate legal basis for the trial, the Soviet government decided to charge Siniavski and Daniel with writing and disseminating “anti-Soviet propaganda” under Article 70 of the Soviet Criminal Code. Article 70 states: Agitation or propaganda carried out with the purpose of subverting or weakening the Soviet regime or in order to commit particularly dangerous crimes against the state, the dissemination for the said purposes of slanderous inventions defamatory to the Soviet political and social system, as well as the dissemination or production or harbouring for the said purposes of literature of similar content, are punishable by imprisonment for a period of . . . six months to seven years and with exile from two to five years, or without exile, or by exile from two to five years.24 Article 70 is poorly and rhetorically worded. Nevertheless, bringing a successful legal charge depended on the satisfaction of the criteria that are described, and an attempt at clarification must be made. It is clear that the offence of involvement in “agitation or propaganda” under Article 70 includes an essential element of intent. The “purpose” of the “propaganda” must be to “subvert . . . or weaken . . . the Soviet regime.” The language of the section does not appear to allow prosecution for the unintentional or unexpected use of an author’s works for anti-Soviet purposes.25 Despite the importance of “propaganda,” it is noteworthy that this section does not provide a detailed definition of precisely what is meant by the term. Something like a definition is suggested by the assertion that “the dissemination for the said purposes of slanderous inventions defamatory to the Soviet political and social system [my italics]” is an offense under this section. References to “weakening the Soviet regime,” or the “[commission of] particularly dangerous crimes against the state” suggest that the writing should be clearly and strongly anti-state, and it should be anticipated to lead to dangerous political consequences.

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Finally, on conviction, the punishment, not only for writing and disseminating, but also, for “harbouring . . . literature of similar content,” is extremely heavy: it includes years of service in prison camps and, possibly, an additional period of exile. Article 70 provides for the prosecution of grave crimes against state and society, requiring intentional wrongdoing on the part of the accused, and leading to serious, even life-threatening punishment for the convicted. However, a number of key procedural points about the application of Article 70 remain unclear. What is the standard of proof that applies to these charges? What is the appropriate role of the prosecutor in a case of such seriousness? And what was the extent of the judge’s power in the case? Would he have the discretion to lighten the sentence? In fact, in 1958, the Soviet Union had issued a new version of the Fundamental Principles dealing with criminal law, whose standards were enacted in a new RSFSR Criminal Code and Code of Criminal Procedure in 1960. As Harold Berman points out, the Codes were in large measure a reaction against the abuse of criminal law during the Stalinist period.26 They affirmed a number of principles that were akin to concepts of criminal justice in Western countries, particularly in the civil law countries of Western Europe. At the time of the Siniavski–Daniel prosecution, Soviet criminal law provided a number of safeguards against arbitrary conviction. The standard of proof required in criminal cases was very high: the presumption of innocence was so strong that even a confession by the accused, on its own, might not be sufficient to guarantee a conviction, depending on what the overall evidence in the case supported.27 The prosecutor was supposed to present evidence to the court, but he was required to respect the presumption of innocence while doing so. As for the judge, his role, as in other civilian countries, was to arrive at the conclusion based on his “inner conviction” as to what would constitute justice in the case. However, he was naturally obliged to reach this conclusion based on his consideration of the evidence presented at trial. The criminal legislation of 1960 did not provide for these rules to be waived in the case of political crimes such as those described by Article 70, or for special rules to apply. In the late Bolshevik period, before Stalin, accepted doctrines of criminal justice tended to be disregarded in relation to “counterrevolutionary crimes”; as Berman points out, Although Soviet legal writings of the time did not so state, the theory was apparently held that in such cases the accusation itself was a sufficient basis for conviction, and in addition, the confession of the accused was adequate proof of guilt, since (it was said) nobody would confess to such crimes if he were not guilty!28 However, this was not a tradition that post-Stalin reformers wanted to emulate. Rather, it would seem that the reforms of 1960 were specifically designed to correct excesses of this kind.

Creative freedom on trial 129 Proving the charges against Siniavski and Daniel under Article 70 presented the prosecution with serious practical difficulties. The prosecution had to establish, first, that the works of fiction written by Siniavski and Daniel were in truth works of “propaganda” whose aim was to “subvert . . . the Soviet regime,” or perhaps, “[to] defame . . . the Soviet political and social system.” Second, they had to show that Siniavski and Daniel intended to write and disseminate propaganda. However, the writings of Siniavski and Daniel were not works of propaganda in either sense: it was not their raison d’etre to create disorder. Disorder may have been an unforeseen consequence of their publication, but the immediate purpose of the writers, as is apparent from their own statements, was to create works that had artistic integrity, by portraying inner truths about the society in which they lived. The fact that the writings were published abroad also weakened the prosecution’s case. Since they were published outside the Soviet Union, it was unlikely that they would reach en masse the Soviet public, among whom the writers were alleged to stir up unrest. Of course, there was the possibility that the works would reach some of the Russian public from outside the country – for example, by radio broadcasts via “Radio Liberty,” or through the activities of Russian émigrés.29 The fact that most of the writings appeared in the original Russian, and not primarily in translated versions, lent some credence to this possibility. However, it could equally well be said that the works were primarily intended to be accessible to a Russianspeaking audience abroad, including both émigrés and interested foreigners. In any case, even if the works could theoretically find their way back into the Soviet Union through unofficial channels, the writers’ intent was still not fundamentally political in nature. Rather, they had sought, above all, to avoid the impact of official censorship on their works; Siniavski emphasized that the essential purpose of sending his writing abroad was to “preserve . . . [his work] as literature.”30 Hayward summarizes these basic contradictions in the charge under Article 70; although his assessment may not be legally rigorous, he captures the essence of the problem: Clearly, everything hinges here on proof of intent. . . . The prosecution of the trial based their case on the allegation that the defendants’ work was consciously intended by the authors to subvert and [sic] weaken the Soviet system. In other words, their literary work had to be equated with seditious leaflets or proclamations, even though their work was not available to the Soviet public, not distributed inside the country and could hence scarcely be shown to subvert an audience it did not reach.31 The difficulties of the prosecution in satisfying the requirements of Article 70 largely arose from the fact that the writers had not committed a clearly identifiable illegal act. From a political point of view, the content of the writings was highly incompatible with the official ideology of the state,

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and the proceedings against the writers are easy to understand. However, the nature of the prosecution undertaken by the state transformed the trial from a political to an ostensibly legal undertaking. The prosecution had to provide legally adequate proof that the writings were propaganda, and their intended purpose, subversion. In fact, the right of authors to publish and disseminate their work was clearly protected by Article 98 of the Soviet civil legislation. Article 98 of the Soviet Fundamentals of Civil Legislation granted to a literary author “the right . . . to the publication, reproduction, and dissemination of his work by all means permitted by law [my italics].” This provision was incorporated verbatim into Article 479 of the RSFSR Civil Code.32 What, then, was the illegal act of Siniavski and Daniel that deprived them of their legal rights of authorship, and led to their prosecution under the Soviet Criminal Code? In spite of its legal importance, the question of the illegality of the writers’ actions was never addressed directly in the trial. Interestingly, the government did not consider the fact of publishing abroad to be an illegal act. The fact that the works had been printed by foreign publishers was strongly disapproved by the government, and it served as evidence that the writings must somehow be illegal. However, the prosecution never suggested that the act of publishing abroad would automatically deprive the authors of their rights. The conduct of the prosecution implied a quite different and surprising approach to the problem of illegality. It appears that the criminal charges against the writers were directly based on the literary content of their works, including the richness of literary and political interpretations which they offered to critics, in Russia and abroad. The ideological flavor of the proceedings is striking. The writers were not condemned for publishing the works per se; rather, their crime was, fundamentally, to imagine such works at all. Hayward emphasizes the highly unusual character of the prosecution, and suggests that the trial was a veritable “trial of literature.” He argues: Sinyavsky and Daniel forced the Soviet state into the strange position of being the first in the world to put literature as such on trial. It is as if one of the more unpleasant characters in a satire by Saltykov-Schedrin, reincarnated in the person of Counselor of Justice (Third Class) O.P. Tyomushkin, had come to life in order to condemn and pronounce judgment on the whole of Russian literature.33 The conduct of the prosecution In the face of growing domestic and international pressure to abandon the prosecution of the writers, the Soviet government tried to distance itself from the political character of the trial. Instead, it attempted to create an appearance of legality in the proceedings. As Feofanov observes: “not all

Creative freedom on trial 131 moves by the state were . . . blatantly lawless. The authorities also used the machinery of the legal system to achieve their prime objective of thorough political and social control.”34 Why did the Soviet leadership decide to pursue Siniavski and Daniel through legal action? In the Stalinist era, dissenting writers had routinely been persecuted without recourse to the law.35 In circumstances similar to the Siniavski–Daniel case, the Soviet government had systematically persecuted and defamed writers in the past, including such celebrated names as Boris Pasternak, Anna Akhmatova, Osip Mandelstam, and Evgeny Zamyatin. However, their actions had never been said to constitute crimes per se. When trials were conducted, they were invariably affairs for show.36 In contrast, court proceedings against authors and intellectuals became a hallmark of the late Khrushchev and early Brezhnev period, and they were deliberately legalistic in nature.37 In an interesting essay on the Siniavski–Daniel case, Turner suggests that the Soviet leadership had originally intended to conduct the case as a show trial in the Stalinist tradition, without any real concessions to the concept of legality. According to his analysis, the main reason why the affair eventually came to be dealt with as a legalistic matter was the satisfaction of international public opinion, which stood strongly behind the writers.38 However, the concern of the post-Stalin leadership with “normalizing” Soviet society was undoubtedly an important factor behind the trial, as well. For the Soviet leadership, the trial most likely represented, not only an opportunity to clarify the political limits of free expression in Soviet society, but also a chance to explore the parameters of “socialist legality.” On both counts, the proceedings were doomed to failure. The trial began on February 10, 1966, approximately six months after the two writers had been arrested.39 It was conducted over four days. Even before the commencement of the trial, any appearance of fairness was quickly destroyed by an aggressive pretrial press campaign, which included the publication of articles by journalists and literary critics that attempted to inflame public opinion against the writers.40 The slanderous tone of pretrial publications persisted throughout the conduct of the trial. The prosecution carried out its role with barely a cursory attempt to maintain an appearance of due process. The prosecutors made some heavy-handed efforts to deprive the defendants of an adequate defense, including the exclusion of all but one defense witness from the proceedings.41 An early attempt to conduct the trial as a closed proceeding failed when Alexander Ginsburg demanded to be admitted, on the grounds that members of the public were legally entitled to be present. This success later allowed him to compile and circulate the White Book, a complete record of the proceedings.42 In its effort to control the trial, the prosecution also resorted to subtler weapons. Its approach to evidence was to make selective use of quotations from the writers’ works: the passages were taken out of context, and accordingly, their meaning was altered. The prosecution avoided aspects of literary

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theory and tradition which may have lent support to the authors’ stand, and cast doubt on both the artistic and legal legitimacy of the proceedings.43 Accepted criminal procedures were ignored. The prosecution did not feel any obligation to meet a rigorous standard of proof, while the crucial question of proving the writers’ intent was simply disregarded. The judge was complicit in this situation; his role in the proceedings was highly interventionist. While the active involvement of the judge in the proceedings is a standard feature of civil law systems, the aggressive partisanship of the Soviet judge’s comments destroyed any hope the writers and their supporters might have held of an impartial assessment of the evidence before the court.44 The defense The court refused to allow witnesses to appear for the defense, and it also excluded written depositions on behalf of the defendants. Lawyers for the defense therefore had great difficulty in responding to the charges brought by the prosecution. The examination of Siniavski and Daniel by the prosecution shows that the defendants essentially undertook their own defense from the witness box, with great courage and brilliance, by persistently attempting to draw the prosecution into issues of literary creativity.45 The prosecution quoted from the defendants’ works in a selective and manipulative manner, citing excerpts out of context, and arguing that passages which represented a “negative” attitude towards Soviet life expressed the “true” views of the authors. In their response to questioning, the defendants attempted to strike at these basic allegations of the prosecution. The writers emphasized their use of literary techniques, such as satire, fantasy, and the creation of a fictional narrator whose views are expressed independently of the author’s.46 Fundamentally, both defendants insisted that literary creation and political propaganda are inherently incompatible. In the Russian context, in particular, the idea of propaganda was historically linked to the goal of political indoctrination and the manipulation of public opinion en masse. The spirit behind literary creation was quite different. These distinctions of purpose and quality were surely what Siniavski had in mind, when he stated: I am not a political writer. No writer expresses his political views through his writings. An artistic work does not express political views. . . . My works reflect my feelings about the world, not politics.47 The verdict The court pronounced the expected verdict against the two writers, finding them guilty of Article 70 crimes. The judge sentenced Siniavski to seven years of “deprivation of freedom,” and Daniel to five years of the same. The

Creative freedom on trial 133 Soviet system did not provide for the possibility of an appeal in cases like these. Because of the seriousness of their case, Siniavski and Daniel had been tried before the RSFSR Supreme Court at first instance, and there was no higher court to reconsider the conviction.48 The severity of the sentences was shocking even to some members of the press and public who had not supported the two writers during the trial. It implied years of hardship in a labor camp for two men who were neither in the prime of health nor used to physical rigors.49 Friends of the writers wrote letters of protest against the sentences, but they did not succeed in obtaining clemency for them. Ultimately, Daniel served his sentence fully, while Siniavski served six of his seven years and emigrated to France in 1973 to become a professor at the Sorbonne.50 In 1991, the verdict against the two writers was rescinded by the Supreme Court of the Russian Federation.51 Siniavski was able to return to Russia.52 For Daniel, however, the reprieve came too late: he died in 1988. The aftermath The conduct of the Siniavski–Daniel trial made a travesty of Soviet justice, and of the post-Stalin attempt to revive the concept of “socialist legality.” By exposing the fundamental incompatibility between Soviet control of creative expression and the principle of the rule of law, it marked a turning point in Russia’s history. The idea of a society based on “socialist legality,” which Khrushchev had offered as an antidote to the shocking excesses of Stalin’s rule, was shown to be inherently contradictory. Adherence to the rule of law could not be exercised selectively: it had to serve as a universal guide for the conduct of Soviet life, ultimately defining and limiting the powers of the state itself. These discoveries of the early Brezhnev years contributed greatly to the growth and development of the dissident movement, particularly among Soviet writers and artists.53

The veiled focus of prosecution and defense – not propaganda, but authorship The conduct of the Siniavski–Daniel prosecution reveals that the true purpose of the trial was not to satisfy the legal requirements of a propaganda charge under Article 70, but the far more ambitious goal of imposing fresh restrictions on creative expression after the brief respite of the Thaw. The trial was an illustration of the age-old truth that authoritarianism and free creative expression will always be at odds.54 It demonstrated that the precarious situation of creative expression arises out of its role in generating a diversity of ideas and, fundamentally, its natural tendency to encourage the development of idealism as a way of thought and life. Although it remains an open question whether a procedurally correct approach to the legal issues in the Siniavski–Daniel trial could have supported the development of

134 Creative freedom on trial “socialist legality,” it is apparent that, in any state based on ideological domination, the leadership could never achieve a truly sustainable balance of power with creative authors. If the Siniavski–Daniel trial were truly limited to the issue of propaganda, the prosecution should have concentrated on proving the intent of the authors to create works of anti-Soviet propaganda. The language of Article 70 admits no doubt as to the legal importance of intent. Propaganda must be “carried out with the purpose of subverting . . . the Soviet regime”; the dissemination of propagandistic literature must be “for the said purposes.” The proof of intent is, legally and procedurally, a complex matter; pushed to the limit, it can also present a difficult moral issue. For Russians, propaganda is, by tradition, writing aimed at political indoctrination.55 The intention to create propaganda against the state is a political crime for which the author of the work is clearly liable. However, if an author creates a work that is subsequently used for purposes of propaganda that were not originally intended, it is doubtful whether he or she could be held responsible for the unexpected and unauthorized interpretation and use of his or her work. The state could allege that the author could have, or should have, known that the work would come to serve as anti-state propaganda, but this test of reasonableness in criminal proceedings is quite dubious. To the extent that the prosecution in the Siniavski–Daniel case dealt with intent at all, it was only in this last guise.56 The very wide interpretation of intent pursued by the prosecution can only be reconciled with a highly politicized view of literature. The characterization of all literary expression as political expression was a feature of Soviet culture, and originated in the importance of ideology and propaganda in the construction of the Soviet state.57 Ironically, however, it also had its roots in an older, pre-Revolutionary tradition that assigned literature a role of social prominence and prestige, in part, because of its capacity to educate and redefine a society that was in deep need of cultural progress.58 The idea that literature inevitably deals with politics is not merely a totalitarian aberration: it does contain a grain of truth. However, this truth resides, not primarily in the content of literary works, which are always subject to interpretation and reinterpretation, but in political values. Creative expression is a product of the free imagination; the mind of the author creates a world that is unique and, as such, literary work is ultimately an expression of ideological diversity. Indeed, it is the role of creative expression in affirming free thought and an alternative world-view that is perhaps its most valuable contribution to political life. This feature of imaginative expression is what makes it intolerable to authoritarian states, and what, in democratic societies, should entitle authors and creative works to special protection against political repression. Respect for the rights of authors should be a hallmark of societies that value freedom of thought. Given its fundamentally idealistic character, literature should transcend political justification. As Lidia Chukovskaya argues:

Creative freedom on trial 135 Why do I protest? Because Siniavski’s and Daniel’s committal to trial was in itself illegal. Because a book, a piece of fiction, a story, a novel – in brief, a work of literature – whether good or bad, talented or untalented, truthful or untruthful, cannot be tried in any court, criminal, military or civil. It can only be tried in the court of literature. . . . Literature does not come under the jurisdiction of the criminal court. Ideas should be fought with ideas, not with camps and prisons.59 In preference to the key legal issue of intent, the prosecution in the Siniavski–Daniel trial pursued two other issues, both of which were of limited legal relevance to the proceedings. First, the prosecutor sought to establish authorship of the pseudonymous works – although the authors readily acknowledged authorship. As Feofanov describes: Sitting on the government side were the prosecutor, State Legal Counsellor Third Class and aide to the USSR Procurator General, O.P. Tyomushkin, as well as the public accusers . . . Several experts also participated in the trial. Their job was to establish authorship of these writings that were so densely filled with anti-Soviet statements, although the accused did not deny authorship.60 Second, the prosecution systematically undertook to attack the reputations of the writers, in both professional and personal terms. The prosecutor – and, on occasion, the judge – consistently attempted to devalue the writings of Siniavski and Daniel, adopting a tone of mockery and contempt towards the favorable criticism which they had received, especially from foreign critics.61 The prosecution also sought to show that neither writer observed standards of personal morality. For example, one of the most strident pretrial press publications, written by a Soviet literary critic, calls the writers “heirs of Smerdyakov,” a reference to the almost sub-human degenerate and parricide depicted by Dostoevsky in The Brothers Karamazov. The conduct of the prosecution reveals that the case was fundamentally about the political role of creative authorship. The real questions at stake in the proceedings were dealt with indirectly, and revolved around the problem of whether the two writers had the right to write what they chose, or to publish their writings in the manner which they believed to be most appropriate. The underlying theme of the proceedings is the problem of free creative expression, and whether it can survive in a totalitarian regime. For Soviet intellectuals, the Siniavski–Daniel trial resolved this dilemma conclusively: creative expression could never be reconciled with socialist rule. The trial caused an irremediable rupture between the state and creative people and, by forcing intellectuals to choose between literature and the state, greatly strengthened the dissident movement. Interestingly, the abuse of law in the trial actually affirmed the dissidents’ belief in the importance of the rule of law. After the trial, law and legality, which the Soviet state

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had tried to appropriate, became a rallying-cry of the dissidents.62 Commitment to the rule of law unified writers and the entire range of diverse, antiSoviet interests against repression.

Moral rights and the prosecution of Siniavski and Daniel Despite the unprecedented interest in law and legality in the Soviet administration after Stalin, the conduct of the Siniavski–Daniel trial shows the government to have been engaged in a flirtation with new forms of authority, rather than undertaking a genuine commitment to liberalization. The crude lawlessness of the proceedings within the very terms of Soviet law is a striking feature of the Siniavski–Daniel affair. The prosecution violated the protections for authors’ rights outlined in the Soviet Principles of Fundamental Legislation and the Russian Civil Code – without, however, providing a legal justification for its interference with those rights. In order to understand the implications of the Siniavski–Daniel trial for authors’ rights, it is necessary to consider the trial in its complex historical context. The Soviet system of government had created a situation in which it was virtually impossible for creative writers to publish their work without first being subject to state scrutiny and censorship. However, the political instability of the Khrushchev era led many writers to experiment with techniques of carrying on their activities more independently than in the past. Some of these attempts met with success; but the writers were treading a dangerous line between the permissible and the forbidden, at a time when this border was, itself, in flux. In particular, the trial cast significant doubt on the protection of moral rights in Soviet law. A consideration of the Soviet legislation on authors’ moral rights suggests that the rights of disclosure, attribution, and integrity enjoyed strong protection in Soviet law. These rights became subject to restrictions or sometimes gained additional protection over the years, fluctuating in response to the ebb and flow of ideological currents in this ideologybased society. However, the theme of protection for authors’ personal rights remained a consistent feature of Russian and Soviet copyright legislation. The Union-wide standard for the protection of the moral rights of authors was set out in Article 98 of the model Fundamentals of Civil Legislation of 1961, and it was reproduced in an identical form in the RSFSR Civil Code of 1964.63 Article 98 states: An author shall have the right: to the publication, reproduction and dissemination of his work by all means permitted by law, under his own name, or under an assumed name (pseudonym), or without an indication of a name (anonymously); [and] to the inviolability of the work.64 It is readily apparent that moral rights in Soviet law closely resembled their counterparts in Continental legislation. Like moral rights in France

Creative freedom on trial 137 and Germany, the Soviet provisions granted rights of publication and authorship; Soviet law resembled the French system most closely in the extensive right of integrity, or “inviolability,” but, like the German provisions, it also provided explicit recognition of the right to create anonymously or under a pseudonym.65 However, there are two striking contrasts with contemporary Western European law. Moral rights, like the other rights of authorship set out in Article 98, are not granted to the author as “exclusive” rights. Earlier Soviet legislation had maintained that authors’ rights were exclusive, but this language was amended in 1961 to reflect the real limitations on an author’s ability to exercise his or her rights within the Soviet system.66 It is also specified that authors may create and publicize their works “by all means permitted by law” – a caveat that is also part of international copyright law, through Article 17 of the Berne Convention, and is no doubt implicit in Western copyright legislation. However, the use of copyright for censorship purposes in democratic countries is usually balanced by legal and customary guarantees of freedom of speech, safeguards that were alien to the Soviet political system.67 Indeed, the change of terminology provides a clue as to the real meaning of authors’ rights in the Soviet Union. If the Soviet provisions generally resembled Continental law, the practical contexts in which Soviet moral rights would be exercised – legal, political, and cultural – were quite different from Western Europe. The real implications of moral rights for Soviet authors were highly ambiguous. In Continental jurisdictions, moral rights were protected within a legal framework that emphasized the protection of citizens’ rights and freedoms from the interference of the state – in itself, the product of a deeply rooted political ethos. In contrast, the Soviet legal regime for authors’ rights hung precariously in the balance against official cultural policy. The activities that gave rise to the prosecution of Siniavski and Daniel represented the attempt of the two writers to protect their personal interests in disclosing their work, choosing the conditions in which it should be attributed to them, and maintaining its artistic integrity. In accordance with Article 98 of the Soviet Fundamentals of 1961, all of these interests clearly enjoyed protection as rights of authorship in Soviet civil law. However, in the political and bureaucratic climate of the Soviet Union, it was impossible for the writers to exercise their rights. Even if their actions fell strictly within the letter of the law, they were incompatible with the political requirements of the state. In its approach to creative expression, the Soviet state assumed an exceptionally interventionist stance. The official attitude towards literary and artistic creation had deep roots in the Russian Revolution, and it was an inevitable product of Communist political aspirations. There were three principal reasons behind the importance of culture for Soviet leaders. First, the ideological basis of state power and, in particular, its own historical

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dependence on “propaganda,” led the Communist Party to become interested in harnessing the imaginative power of literature and the arts for the dissemination of political ideas.68 As Peter Kenez observes, “[i]n the eyes of the Bolshevik leaders, . . . [t]he book was the chief vehicle of culture, and the printed word an essential method of propaganda.”69 Second, the traditionally authoritative position of the intelligentsia in Russian society meant that the control and manipulation of intellectuals was a key issue for the Soviet state in consolidating its power. Third, due to the totalitarian aspirations of the Soviet leadership, psychological control of the Soviet population was an important political objective. Creative expression was among the only channels for effective resistance to this politicization of the mind, and it therefore presented a standing challenge to Communism.70 What were the implications of this political climate for authors’ rights? Not surprisingly, political restrictions made it extremely difficult for an author to exercise in practice the rights that he or she enjoyed in theory. Authors possibly could expect to vindicate their moral rights – provided, however, that their creative expression fell within the ideological limits tolerated by the state.71 The significance of moral rights for authors whose works lent themselves to interpretive ambiguities was not as optimistic. Authors who found themselves outside the political boundaries drawn by the state could no longer expect to assert their legal rights. In itself, the idea of conditional recognition for moral rights is not unique to the Soviet system. Moral rights in virtually all legal systems are subject to a variety of political limitations. Moral rights must be balanced against other rights and interests, and, in every legal regime, they can be suspended by the state for overriding concerns of public policy.72 However, the limitations imposed on moral rights by the Soviet system were unique in one fundamental respect: the threshold at which they could be invoked was set at such a low level that they could easily be restricted by considerations of state policy. Moreover, once state action was triggered, the methods of interference were such that authors’ rights were simply eviscerated. The intervention of the state was not subject to public justification, either on legal grounds or on grounds of policy. Its power could be brought to bear arbitrarily; it could also be exercised in secret. These practices led to tremendous uncertainty for authors, first, about whether their works might lead to official sanction, and second, if so, about the form that punishment would take. The attitude of the Soviet state towards authorship was profoundly incompatible with democratic ideals of limited state power and government accountability. Although the prosecution of Siniavski and Daniel was based on Soviet criminal law, the trial was truly about authors’ rights.73 The activities of Siniavski and Daniel were permitted and protected by the moral rights in Article 98 of the Soviet Fundamentals of Civil Legislation: the right to publish works with freedom from objectionable editorial interference, and to publish under the name of one’s choice. However, these rights were pro-

Creative freedom on trial 139 tected only as part of civil law, and had no bearing on the treatment of literary works by the state. This created a uniquely paradoxical situation in the Soviet Union. The state had a monopoly in the means of publishing and disseminating creative work, and an important hand in the exploitation of works, as well. Writers were legally entitled to protection from abuse of their works. However, writers could not exercise their rights against the state, which controlled virtually all the uses made of a work. Moral rights could only be vindicated against other private citizens, and therefore, as suggested by the limited Soviet jurisprudence on moral rights, were applicable to a narrow range of situations. In effect, the intrusion of the state into the “private” sphere was so complete that the relevance of private rights, such as those of authorship, to real situations was severely limited.74 The trial of Siniavski and Daniel illustrates the problems of authors’ rights in a state-dominated society. Clearly, the existence of a well-defined private sphere, into which government cannot intrude except on the basis of well-established safeguards, is essential for the protection of personal rights. However, the situation of moral rights in the Soviet Union reveals something more: the fundamental incompatibility of moral rights with a society based on ideological control. Moral rights are generally protected as part of the author’s copyright: they are well-established in private law. However, the theory behind moral rights has broad implications for society as a whole. Moral rights seek to protect the special relationship between a creator and his or her work.75 They are also based on the idea of a special status for artists and works of art in society.76 As part of copyright law, moral rights protect these important social interests against infringement by private individuals. Is it conceptually consistent to refuse to protect the same interests when they are threatened by the state? The criteria for enforcing them may be different: the status of art, and the relationship between creators and works, are not sacrosanct, and there may be strong considerations of public policy that take precedence. But if the state is going to act against authors, in spite of the moral rights guaranteed by law, it must have a publicly justifiable reason for disregarding the social values that they represent. It is not especially rare for writers and artists to be prosecuted for their work for reasons of public policy – for example, on grounds of obscenity or blasphemy – and the Siniavski–Daniel trial falls into this general category. The Siniavski–Daniel prosecution has parallels with well-known incidents in Western law. Examples include the trials of D.H. Lawrence’s Lady Chatterley’s Lover for obscenity, and recent attempts to prosecute writer Salman Rushdie for blasphemy in the United Kingdom.77 It has also happened that journalistic expression leads to political prosecution for its anti-state implications. A recent illustration is the Spycatcher case; the British government objected to Peter Wright’s book, not only because it revealed “secret information,” but also for its exposure of incompetence and illegality in Her Majesty’s Secret Service.78

140 Creative freedom on trial In the Siniavski–Daniel prosecution, however, the element of political ideology was crucial. The illegal act of the writers lay in the imaginative content of their work, which seemed to reject and even satirize official propaganda, bringing the trial into the somewhat narrower category of a prosecution against “freedom of the imagination.”79 In this respect, the closest parallel may be found in the McCarthy trials of 1950s America.80 At the height of the Cold War, writers and artists whose professional or personal lives suggested sympathies with Communism faced legal and political persecution at the hands of Senator McCarthy’s commission. The astonishing irrationality of the proceedings led some observers to characterize it as a “witch-hunt,” and this was ultimately the allegory drawn by Arthur Miller in his play on the activities of the commission, The Crucible.81 Though a watershed event, the Siniavski–Daniel trial was also part of a larger trend on the part of the Soviet government towards systematic abuse of the rights of authors, and in particular, their moral rights. The Soviet government did not cease to use violence and other kinds of brutality against writers – for example, committing at least one, Valery Tarsis, to a mental institution – but law acquired special significance in the post-Stalin period.82 Brodsky’s conviction for “parasitism” – Turner comments that “[t]he court refused to recognize that writing poetry was useful work” – was one example. Another was the case of Ginsburg and Galanskov. Alexander Ginsburg had already been imprisoned for his activities as a poet; in 1967, he faced trial and imprisonment with Yuri Galanskov, editor of an underground journal, for compiling a record of the proceedings in the Siniavski–Daniel affair.83 The uniqueness of the Siniavski–Daniel affair was present in one crucial respect: it was the first trial in which the texts written by the accused provided the basis of legal proceedings. It was also the most ambitious of the anti-intellectual prosecutions of the era. For this reason, the outcome of the Siniavski–Daniel trial, more than any other event of the period, signified a lasting defeat for the briefly revived hopes surrounding the ideal of socialist legality.84

Moral rights and the conduct of Siniavski and Daniel Given the importance of the Siniavski–Daniel trial as an illustration of the political context surrounding Soviet protection for copyright and moral rights, how should the conduct of the two writers be assessed within the terms of copyright law? Prerogatives of authorship The two writers had published works under assumed names, an accepted literary practice which was protected as one aspect of the author’s moral right of attribution under Article 98 of the Fundamentals. However, one of the basic concerns of the prosecution was to establish authorship of the works.

Creative freedom on trial 141 Neither Siniavski nor Daniel denied authorship; rather, the prosecution’s emphasis on authorship was part of an overall strategy aimed at identifying the political views of the authors, and associating them indelibly, as individuals and as writers, with those views. This task was made especially difficult by the complex artistic character of the writings in question, some of which were developed in a literary style that precluded the identification of the author with the views expressed in the narratives: skaz. The prosecution also had a second objective, which was to destroy the credibility of the writers. Particularly in its treatment of Siniavski, the prosecution attempted to draw attention to the differences in character between earlier works which he had published under his own name, and the pseudonymous works which he published abroad. Presumably, the tactics of the prosecution could be justified because of the “danger to Soviet society” potentially posed by the writings. Given the fact that these writings were likely to remain generally inaccessible to much of the Soviet public, however, the dangers they posed involved as much a loss of prestige in foreign eyes, as disorder within the Soviet Union.85 The authors’ moral right of attribution was therefore subject to the most obvious dictates of political expediency. Inviolability Under Soviet law, the integrity of the writers’ works was protected in very strong terms, as “inviolability.” Any changes or additions at all would have to be approved by the author of the work, including even the addition of “explanatory material” to the text.86 While this provision apparently protected Soviet authors from the interference of other Soviet citizens with their work, moral rights in the 1961 legislation, in sharp contrast to the earlier rule, were not intended to protect the author from the inappropriate use or mistreatment of his or her work by publishers, broadcasters, or other agencies for the dissemination of creative works.87 Due to the dominance of these industries by the state, through the system of publishing licenses, authors were subject to the editorial treatment and approval of their work by the Soviet publishing bureaucracy as a prerequisite for publication. In effect, the author’s moral right of integrity was directly limited by state censorship, which could alter a work to suit the political requirements of the day. It was precisely in order to escape from this cycle of censorship, potentially leading to undesirable personal consequences, that Siniavski and Daniel decided to send their works for publication abroad. The two writers wanted their works to appear in unabridged, unaltered form, so that the full effect of their vision and literary skills would be felt by readers and critics alike. Although Soviet law granted them a strong right to maintain the “inviolability” of their work, the maintenance of artistic integrity within the Soviet publishing complex was a virtually unattainable goal. It is worth noting that Soviet policy had the effect of making writers

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“politically responsible” for what they wrote – what Foucault might consider an appropriate burden of responsibility on writers, artists, and intellectuals “as authors.”88 However, the position of the defendants in the Siniavski–Daniel prosecution raises the question of what, exactly, is the nature of the author’s responsibility for his or her work. In the context of the trial, the writers and their supporters uniformly recognized and accepted a sense of the moral responsibility arising out of authorship. However, the nature of the creative author’s responsibility, whether political, social, or personal, is a complex matter. It is certainly controversial to suggest that the state should ultimately impose, or confer, responsibility on authors, whose political role, after all, is to provide an alternative source of ideas and ideology. From this perspective, the contribution of authorship to democracy is easily identifiable, and is clearly apparent in the historical role of writers in anti-Soviet dissent. Disclosure Soviet copyright law recognized the author’s right to determine the circumstances in which his or her work would be disclosed to the public. Like the right of integrity, however, the right of disclosure, or first publication, was profoundly affected by the realities of the Soviet literary establishment: it was greatly weakened by the conditions of Soviet publishing, since publication depended on the approval of manuscripts by official “editors” who effectively acted as censors on behalf of the state. These practical restrictions on the right to publish were the main reason why Siniavski and Daniel sent their works abroad. Publishing abroad had become a matter of professional necessity for both authors, though the need was acutely felt by Daniel, who had been consistently unsuccessful in publishing his original works within the Soviet Union.89 Sending creative works abroad for publication was not prohibited by Soviet law, but it became a justification for the prosecution to vilify the writers in the trial as traitors to Soviet nationalism.90 There is another aspect to the right of publication: the “negative” right to refrain from publishing a work. Newcity draws attention to this element of the publication right as one which is generally less vulnerable to Soviet publishing structures, in this case, as they relate to “specified free uses, compulsory licenses, and compulsory purchases of a work.”91 In other words, unless the government were to purchase an author’s right to his or her unpublished work, as was possible under Soviet compulsory license and provisions, this right would remain with the author.92 However, the issue of an author’s rights and interests in his or her unpublished work also arose in the Siniavski–Daniel prosecution, showing that this right, too, was subject to political limitations. The prosecution attempted to use an unpublished work by Siniavski, an “Essay in SelfAnalysis,”93 to support its allegations about Siniavski’s anti-Soviet and antisocialist views. Siniavski protested that an author’s unfinished drafts cannot

Creative freedom on trial 143 be held to be representative of his views, and he pointed out that the essay had been shown to no-one, including Daniel.94 Indeed, the judge was moved to state that, “[t]his manuscript . . . throws light on [Siniavski’s] personality and nothing more.” The issues surrounding this unpublished essay suggest that the moral right of publication bears some relation to a right of privacy. Unless there is an important interest in the publication of a work which weighs against the invasion of the author’s privacy by confiscating it, the author’s moral right to choose whether or not a work appears in the public eye is an important creative right.95 At the very least, the appearance of an unpublished work against the author’s will should be acknowledged as such. Under Soviet law, the publication right was strong enough to encompass these possibilities in its legislative expression, but the privacy considerations in the right of publication were basically incompatible with social norms in the Soviet Union. Certain jurisdictions recognize a moral right to withdraw from circulation a work that has been published, usually, on the grounds that it has ceased to represent an author’s views.96 The author must usually compensate the publisher for any losses which he or she may incur as a result of the decision. Although it only enjoys limited international recognition, the right of withdrawal is, in a sense, a natural conceptual counterpart to the right of disclosure. This right was not explicitly protected in Soviet copyright legislation. However, given the unusual emphasis of Soviet copyright on the right of publication, it is interesting to consider what might have been the fate of an author’s right of withdrawal in Soviet law. An important theme of the prosecution in the Siniavski–Daniel case was the inconsistency of the writers’ opinions. The prosecution argued that consistency and continuity of views and the absence of contradictions in a writer’s oeuvre are basic indications of aesthetic and moral quality. Siniavski, in particular, fell foul of this theory. An apparent change of heart seems to distinguish his later writings, published abroad under the pseudonym “Tertz,” from his earlier works, published under his own name in the Soviet Union. It is interesting to rediscover this theme in the article published by Feofanov on the Siniavski–Daniel prosecution, 30 years after he initially commented on the events of the trial as a contemporary analyst. He says: The fact was that Daniel and Siniavski were not among those dissidents who openly challenged the regime. Andrei Siniavski wrote works for Soviet publications that were fully loyal, articles about socialist realism, about the role of Lenin and Gorky in the development of literature on patriotic themes, etc. And in foreign editions, under the pseudonym Abram Tertz, he wrote directly contradictory things. All of this was brought forth in court. Could I morally justify that? No. And I still cannot.97 Feofanov’s observations may be correct; but do they justify the condemnation that Siniavski faced on these grounds at the hands of the prosecution?

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Siniavski could not be immune to the historical forces that were afoot in the Soviet Union of his time, and which affected many Soviet intellectuals profoundly. No doubt, the revelations of 1956 made an impact on his work. However, his position with respect to the Soviet regime had long been ambiguous and difficult to categorize. Most importantly, both he and Daniel had been associated with Pasternak, serving as pall-bearers at his funeral.98 Hayward comments, “[t]here could have been no clearer public confession of faith.”99 Siniavski was deeply involved in the writings of Pasternak and became one of his most important interpreters and advocates in post-Stalin Russia. It is interesting to consider the ways in which Siniavski’s intellectual development appears to mirror Pasternak’s own growth as chronicled in Dr Zhivago.100 Pasternak’s early enthusiasm for the Revolution, which he believed would bring greater social justice to Russia, was gradually destroyed by the mind-numbing impact of socialist ideology on private life and independent thought. In his testimony at the trial, Siniavski, too, seems to have been torn between idealism and disillusionment, and his work is doubtless informed by this inner conflict. Seen in this historical light, it becomes more difficult to condemn the “inconsistencies” in Siniavski’s work. The moral right of an author to withdraw his or her work from public circulation due to a change of opinion is based on a recognition that diverse factors can cause an author’s thought to evolve, perhaps in radically new ways, possibly leading him or her to repudiate views which he or she embraced in earlier writings. In Siniavski’s case, he was caught in the current of epoch-making events – the death of Stalin, and the revelations about his leadership that followed his death. The legal recognition of a right of withdrawal is based on the understanding that writers should be held accountable for the consistency of their oeuvre only if they have the possibility of ensuring its continuity – provided, of course, that maintaining the consistency of their views, in their own minds, is worthwhile.101

Moral rights: a droit de créer A close study of the Siniavski–Daniel trial shows that authors’ moral rights are fundamentally incompatible with political repression. This incompatibility is apparent on two distinct levels. First, there is a legal incongruity: state interference with authors’ moral rights should be subject to legal justification. Even in periods of relative liberalization, however, the willingness of a repressive state to accept legal restrictions on its own power is, of course, limited. The state may temporarily appear to respect law and legality; but its acceptance of these principles is given arbitrarily, and may arbitrarily be taken away. Second, this legal tension is mirrored by an underlying, conceptual incompatibility between the doctrine of moral rights and political con-

Creative freedom on trial 145 straints. Moral rights are premised on the importance of individual creativity; they assume that artistic creation gives rise to a unique relationship between an author and his or her creation, one that is entitled to recognition and protection in law. Moral rights express the special privileges and responsibilities that arise out of the artist’s individuality – creation through the free exercise of the imagination. However, the benefits of moral rights are not intended for authors alone. Rather, they reflect the esteem in which society holds authors. Society stands to benefit from the contribution of authors to creativity and culture. In this sense, moral rights lead to important social benefits. At the heart of moral rights doctrine lies a humanistic vision of creativity and culture. Moral rights have much in common with human rights – in particular, those that protect intellectual freedoms. In contrast to general rights of free expression, however, moral rights are concerned with a more specific issue: the human rights interests involved in literary and artistic creation. In legalistic parlance, creative work may be characterized as a special class of “free expression,” one with unique characteristics and, therefore, a need for special legal recognition.102 Notwithstanding its humanistic basis, moral rights doctrine typically finds expression in copyright law, a branch of commercial regulation. In Russia, and later, the Soviet Union, copyright law was one aspect of civil law – so-called “private” law that could theoretically restrain Soviet citizens from interference with authors’ personal interests, but whose applicability to the actions of the state was limited. A consideration of the impact of censorship on moral rights, apparent in the Siniavski–Daniel trial, raises the question of whether the disparate treatment of moral rights in the public and private spheres is consistent with the doctrine. Legal consistency seems to demand that the protection of moral rights be accomplished in the spheres of both private and public law. Neither threat to creativity should be disregarded. An approach to moral rights doctrine that recognizes equally its grounding in private and public law may be found in the idea of a droit de créer – a “right to create.” The term, droit de créer, is usually used by copyright scholars to signify the freedom to create works in the future; it acts as a potential limitation on contractual agreements relating to works that are as yet uncreated.103 However, the principle behind this right can be extended beyond the issue of contracts for future works, to more general questions of authors’ rights. The specific ensemble of moral rights varies considerably among different jurisdictions, but all of these rights originate in a common concept: original authorship, leading to a special relationship between creative authors and their work. Moreover, in jurisdictions where moral rights are protected, the activities of authors are believed to provide important social benefits, whether in their concrete contribution to the creation of culture or in their subtler role in the development of a creative ethos. Droit de créer is an apt

146 Creative freedom on trial term for the fundamental right at the root of the doctrine. The terminology of “freedom of the imagination,” or “freedom of creativity,” might be favored by post-Soviet jurists, and is somewhat more descriptive of what this fundamental right involves.104 In the Siniavski–Daniel trial, the treatment of the two writers by the prosecution raises the disturbing question of the extent to which the defendants were free to exercise their profession as writers within the Soviet regime. The prosecution attacked the personal and professional reputations of the writers by quoting passages from their work, and these excerpts constituted the principal evidence against Siniavski and Daniel. Apart from a few minor exceptions, the great majority of quotations were from works of fiction – the words of characters, their reminiscences and fantasies, events that featured in invented narratives. The two writers were held accountable for the opinions of their characters, and for imagining particular events. They attempted to defend themselves by pointing out that they had employed accepted literary techniques to fashion their narratives and explore their themes, techniques which ultimately acted to separate the writer from the views expressed in the story. These arguments were not accepted by the judge or the prosecution. They did not prevent prosecution lawyers from persistently citing passages out of context, and in such a way that they presented the views and intentions of the author in a deliberately anti-social light. In its handling of this “evidentiary” material, the prosecution was striking at the core of the literary profession. Creative writing can be distinguished from every other manifestation of the written word by this one characteristic: its fundamental reliance on the imagination. A work of creative literature cannot come into being without this essential ingredient, the imaginative transformation of the writer’s thoughts into the form and substance of a work of art.105 Not only did the prosecution object to the content of the works on trial, but it refused to accept that the literary techniques employed by the writers were a valid expression of their craft.106 The strategy of the prosecution suggests that it would be extremely difficult for an independent-minded writer of fiction to exercise his or her profession in a Soviet-style regime. Indeed, many Soviet writers were compelled to follow the “genre of silence” in the worst periods of repression.107 The damage that repression works on a writer is not only external and practical, but it is also internal and psychological: the “internal censor” constantly monitors the writer’s thoughts, and, like Blake’s worm at the heart of the rose, insidiously destroys his or her creative freedom from within.108 In a society where freedom of expression was recognized and protected in law, the writer of fiction would enjoy the generally available freedom to practice his or her profession. Even here, however, his or her work might become subject to social censure on the grounds of “public morality,” obscenity, and, possibly, political subversion. By the very nature of their activity, creative writers are especially exposed to professional condemnation, and vulnerable

Creative freedom on trial 147 to the more serious consequences of censorship, including its impact on their ability to work. Freedom of the imagination is the very essence of the literary professions. Writers should therefore be subject to different standards of review for determining the social acceptability of their work, and a higher threshold should be set for interference with, or censorship of, them. In his comparative study of moral rights, Strömholm is quite sceptical about the idea of a droit de créer that would be broadly applicable to the problems of creative authorship; he suggests that this right does not lend itself naturally to wider interpretation.109 He argues that the legal recognition of a “right to create” would not help to clarify issues of freedom of expression, and he is hesitant about bringing rules “of [the] public-law type” into copyright: [W]hen the work is presented for publication it will obviously be evaluated in the light of . . . legal rules which apply to public utterances and public behavior as a whole. But this is nonspecific to protected works; from the point of view of freedom of the press it is a matter of indifference whether or not an utterance reaches up to the “threshold” of a work, an oeuvre. From the point of view of systematic clarity it is no advantage to bring in these sort of rules – mainly of public-law type and applicable to all sorts of heterogeneous activities – among the copyright rules on droit moral. Nevertheless, Strömholm recognizes that the droit de créer may help to strengthen the position of the author in certain practical respects, such as the negotiation of professional contracts for the creation of works. However, he feels that the application of the droit de créer might introduce an unmanageable degree of uncertainty into publication agreements. He observes: “it would certainly be doing no service either to culture, to droit moral or to authors, if the validity of every agreement concerning one or more future works was to be questioned.”110 Having raised these issues, Strömholm concludes that adequate means of addressing the concerns of the droit de créer are already in existence. They are to be found, he argues, within the principles of contract law, and in the form of proven judicial sympathy for “the special nature and the psychological circumstances of individual creativity.”111 Strömholm’s objections to the droit de créer, and, in particular, his view that creative freedom is already adequately protected by custom, are not entirely convincing. He does not enter into a much-needed analysis of the relationship between public-law principles governing freedom of expression and moral rights doctrine. Strömholm is hesitant to deal with the “publiclaw type” elements of moral rights, although it is widely understood that authors’ rights are a hybrid of private and public-law concerns, reflecting the individualistic and social faces of authorship itself. Since Strömholm prefers to avoid the intersection between freedom of expression and moral rights, he

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is not in a position to assess the possibilities for improving the general effectiveness of measures on freedom of expression through the development of a “moral right to create,” nor does he consider the possibly enhanced, practical application of public-law principles to the specific problems of authorship. Strömholm’s treatment of the droit de créer is restricted by his assumption that “[t]he author enjoys the general freedom of action prevailing in the community.” On the contrary, the author’s profession, by its very nature, requires a different level of freedom, and makes him or her especially vulnerable to repression. Strömholm is not concerned with repression and its effects on authors and their works, or, more generally, on the social phenomenon of creativity. However, the prosecution of Siniavski and Daniel shows clearly the precise, specific, and distinctive qualities of literary expression as a special form of “speech.” Strömholm’s somewhat rigid classification of moral rights within the confines of private law is called into question when we consider the historical circumstances of socialist regimes, where repression was systematically directed at creative artists, leading them into an intense struggle for personal and professional survival. His views are also challenged implicitly by the instability and ambivalence that increasingly affect the notion of an author’s moral right in international copyright law. While Strömholm’s arguments present an interesting point of departure, his position on the droit de créer needs reconsideration. The droit de créer should be re-examined in the light of a deeper understanding of the relationship between moral rights and creative freedom.112

Conclusion The history of authors’ rights in the Soviet Union confronts copyright scholars with a strange anomaly. On the one hand, Soviet law showed a clear commitment to the protection of authors’ moral rights. On the other hand, state persecution of authors in the legal arena, culminating in the Siniavski–Daniel prosecution of 1966, demonstrated that authors were unable to exercise their legal rights in this politically repressive regime. To a great extent, authors were prevented from asserting their moral rights by the all-embracing character of state involvement in Soviet society. The Soviet state infiltrated virtually every means of publishing and disseminating creative works, industries that are usually the prerogative of nonstate corporations and individuals in democratic societies, and where competition and diversity are important values. At a deeper level, the ineffectiveness of protections for writers in Soviet law reflected intense unease about the concept of moral rights. Moral rights affirm the social importance of creativity, the individual rights of creative authors, and the independent value of creative work. These ideals were inherently incompatible with a regime based on ideological control, whose main aspiration in the cultural sphere was to exploit creative expression for its own political ends. By a fitting irony, the Soviet government’s attempts

Creative freedom on trial 149 to control authorship ultimately had the opposite effect, affirming the independence of authors and their undeniable contribution to freedom of thought, historical truth, and ideological diversity in Soviet-ruled territories. Mandelstam’s dictum about the life-and-death importance of poetry in Russia was proven time and again by Soviet policy.113 The extent of repression to come was by no means self-evident in the revolutionary changes of 1917. Many contemporary observers, in Russia and throughout the world, believed that the Revolution heralded a new age of freedom for the Russian people.114 In retrospect, it is perhaps most accurate to say that Soviet legal provisions for the moral rights of authors reflected the optimistic spirit of early socialism. The framework for the protection of moral rights would ultimately become integrated into a legal culture based on “doublethink,” a perpetual state of psychological confusion apparent, among other ways, in the chasm between the letter of the law and its practical significance. The tragedy of Soviet authors, caught between the ideological politics of the state and the moral obligations of creative freedom, is reflected in the legal treatment of authorship under Soviet rule. The presence of moral rights in Soviet law may have been a product of the best socialist ideals; but, as the Siniavski–Daniel prosecution illustrates, they eventually fell victim to the shameful excesses of Soviet power. The Soviet approach to creativity negated the law of moral rights. The post-Soviet era is therefore in need of a new model of authors’ rights – one that recognizes and attempts to address the dangers of repression and its aftermath for creative freedom.

7

Copyright and the breakdown of Communism

After the turmoil that marked the mid-point of Russia’s twentieth century, Soviet society of the 1970s and 80s was falling ever more deeply into the lethargy of stagnation. Frustration permeated every sphere of Soviet life, whether economic, political, cultural, or personal. The crippling effects of decades of bureaucratic control over the economy were becoming apparent. In a deeper sense, the situation also represented a stalemate in the ancient contest of party and intelligentsia – the post-Revolutionary conflict, as expressed by Sheila Fitzgerald, between “power” and “culture.”1 Government based on ideological pronouncements could only intensify the hostility between society’s “rulers” and its “creators” over the years; it inevitably became a characteristic feature of the system. In retrospect, it is evident that this tension was, by nature, impossible to resolve within the established parameters of Soviet politics. The situation is described with precision by Geoffrey Hosking: Wherever we look, . . . we see the shell of the totalitarian structure still in place, but usually masking a reality which is in important respects divergent from the image. Yet, whenever attempts are made to change it, the shell proves remarkably tough. . . . The totalitarian system – perhaps today the term “post-totalitarian” would characterize it better – has in fact settled down and assumed the shape of a rather stable society. Three generations after the 1917 revolution it is perhaps natural that this should be so. The party’s monopoly position has enabled a new ruling class to form and to consolidate. . . . Its members now see advantages in the revival of certain aspects of the rule of law, of private morality, of economic diversity, of genuine culture, science and scholarship, because these things promote the social stability which enables them to enjoy their power in peace. At the same time, they cannot permit the genuine rule of law, authentic freedom of conscience, the full flowering of scientific inquiry or cultural creativity, or of legalized economic free enterprise, for any of those things could prove a real impediment to their monopoly of power. So they cling tightly to the bare structure of their system, while intermittently conceding the substance.2

Copyright and the breakdown of Communism 151 With the promotion of Mikhail Gorbachev to the position of party General Secretary in 1986, the possibility of adopting liberalization measures to improve the Soviet situation became a reality. Not surprisingly, it appears that several streams of thinking existed among party leaders of different generations and convictions about how to confront the situation of deepening difficulty and, indeed, crisis that was looming on the horizon. The fact that Gorbachev had been in charge of agriculture, a deeply problematic area in which liberalization overwhelmingly appeared as the best solution for long-standing mismanagement, may have played a role in his own political development.3 Hosking’s assessment of the turning point which the Soviet Union was approaching seems quite prescient: Writing in summer 1984, it looks as if we are approaching a critical stage, when vital decisions will have to be taken, as in 1921, 1928–9, 1953–6. There is no consensus in the West about what tendencies exist in the Soviet leadership, and it would be hazardous to speculate . . . The persistence of schemes for decentralizing and freeing the economy, particularly in agriculture, suggests that the opposite tendency also has its convinced supporters. But there is absolutely no way of knowing which current is likely to prevail in the coming years. However, because the features of “post-totalitarian” society are so closely interdependent, change, when it does come, will probably be rapid and far-reaching.4 In the “post-totalitarian” society described by Hosking, change from within, aiming at a subtle re-calibration of the balance of power among different state and social interests, while preserving the fundamental integrity of the system, seemed both like the natural path of reform, and the one most likely to bring about necessary change without unleashing chaos.5 Managed change was the initial aim of Gorbachev’s program of perestroika, reconstruction, and glasnost, openness.6 Indeed, Gorbachev’s inherently conservative approach to change is clearly apparent in his contemporary book on perestroika, as are his reasons for fearing the loss of political control. He observes: There are different interpretations of perestroika [from those of the Communist Party] in the West, including the United States. There is the view that it has been necessitated by the disastrous state of the Soviet economy and that it signifies disenchantment with socialism and a crisis for its ideals and ultimate goals. Nothing could be further from the truth than such interpretations, whatever the motives behind them.7 Notwithstanding Gorbachev’s early caution, the momentum of change, once it had begun, proved unstoppable. The destruction of the Berlin Wall, the flashpoint of East–West hostilities for half a century, ignited independence movements across Eastern Europe, among the satellite states of the

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Soviet empire. With the constriction of its sphere of influence and widespread condemnation of its ideological raison d’etre, demonstrated on an unprecedented scale by international popular protest, the Soviet Union could not maintain its internal cohesion. The country was officially dissolved in 1992, bringing an end, not only to the military power of the Soviet leaders, but to their ideological influence as well. However, after a decade of post-Soviet consolidation, it must be noted that the Russian Federation, the last remaining ember of the Soviet empire,8 has yet to escape from the spiral of post-Imperial crisis. The situation of continuing collapse is apparent in the political and economic crises of the past decade and, of course, in the ongoing war of secession in the Federated Republic of Chechnya.

Perestroika and legal change From the outset, legal reform was an important part of managed change in Gorbachev’s Soviet Union. In pragmatic terms, law reform could help to facilitate development and liberalization, while providing a stable context within which change could progress without becoming unduly dangerous.9 In particular, by assimilating rapid social change into new legal norms, law reform provided the hope of maintaining a basic degree of stability in spite of the increasing fluidity of the political and economic situation in the Soviet Union. At the same time, the idea of building a culture that understood and respected legality in its own right raised new hopes for reconciliation among the disparate elements of this deeply fissured society. The idea of legality brought a new, ethical force to the movement out of Communism.10 Over the past decade, Russian law reform, and, indeed, legal reform in other post-socialist jurisdictions, has continued its attempt to fulfil a dual function as society’s practical and moral anchor, inherited from the Gorbachev era, with understandably mixed results. Entin’s comments on the nature of the legal transition initiated by Gorbachev’s reforms are enlightening: The introduction with the aid of laws of concepts which for many years have been subjected to ostracism for ideological considerations is a manifestation of glasnost in law-creation. The public putting of the problem in the form of publishing a federal law without a specific decision confers upon law an uncharacteristic currentness. This phenomenon is a distinctive feature of the transition period. . . . One may therefore conclude that modern Soviet law needs glasnost for its legitimation. Open discussion of the virtues and shortcomings of draft laws being voted upon and public proclamation of the intention to fully renew legislative material sharply reduce respect for prevailing law. Arguments are frequently heard on the part of local authorities that the law is wrong and therefore we shall refrain from enforcing it on our territory.11

Copyright and the breakdown of Communism 153 Legal reform in the era of perestroika also responded to the Soviet government’s new sensitivity to international influences. Glasnost, the second branch of Gorbachev’s new style of socialism, not only meant greater openness of the state towards the Soviet public, but a spirit of international openness and cooperation that would hopefully lead, among other things, to improved political and economic relations with the West. After the dissolution of the Soviet Union and the end of the Communist Party’s monopoly of power, the need for international openness became pronounced, and the influence of foreign models on Russian reforms grew to extreme proportions. The twin themes of reconstruction and openness made the perestroika period an active time of change in Russia’s intellectual property regime. On the one hand, the ideological timbre of Soviet intellectual property law, inherited from the period of “socialist legality” and “socialist realism,” was perceived to impede economic and social development. On the other hand, the failure to protect works of foreign authorship was a growing area of contention in the Soviet Union’s international relations. Reforms to Soviet intellectual property law were driven by three specific considerations. First, there was the concern of the Soviet administration, all too well founded in fact, that the country was becoming increasingly backward and isolated in relation to international technological developments.12 Restrictive state policy towards information was an important factor contributing to this problem.13 Deficient regulation, developed with reference to the outdated ideological and technical concepts of the 1960s, mirrored government policy in this area. The impact of technological backwardness on Soviet society threatened to be tremendous, and the Soviet government somehow had to confront this difficult reality. Second, international pressure on the Soviet Union to grant adequate protection to works of foreign authorship had become intense. Foremost among the countries concerned was the United States. The role of American industries at the forefront of the computer revolution made adequate protection of intellectual property a pressing issue for the United States, while Soviet eagerness to benefit from access to American technology made improved protection for American intellectual products a legislative priority.14 A third consideration arose in a somewhat different vein, and involved an attempt on the part of the Soviet administration to revisit its long-standing policy of manipulation and repression towards creative authorship. Greater freedom of expression was the very essence of reconstruction and openness in Gorbachev’s new society.15 In keeping with Russian, and Soviet, tradition, the creative and socially important expression of writers and other artists had a special importance for Gorbachev. Like other rulers over the centuries of Russian history, Gorbachev perceived literary expression as a vehicle for political and social change. To a greater extent than any previous leader, perhaps, Gorbachev hoped to convince intellectuals and creative people to contribute to the renewal of socialist ideals in a liberalized Soviet Union. The parallels between Gorbachev and Khrushchev, between perestroika and

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the “Thaw,” are striking. However, Gorbachev’s program of change, coming long after the ambivalent attempts at liberalization in the 1950s and 60s, was far-reaching and comprehensive by nature, and therefore, much less predictable than Khrushchev’s reforms.16 Gorbachev’s growing sense of the crisis confronting the Soviet Union led to an increasing desire to establish a basis for real cooperation between the government and the dissident community. Indeed, Hosking identifies the hope of help from intellectuals as a crucial feature of perestroika’s “second phase.” Hosking observes: Symbolic of the new movement was the release of Academician Sakharov from exile in Gorky in December 1986. The letter which he had written to Brezhnev in 1970 . . . may be said to contain the first sketch of what was now emerging as Gorbachev’s Perestroika Mark 2, at the centre of which was the notion of an alliance between the party leadership and the country’s scientific and cultural intelligentsia, including those who had hitherto been execrated as “dissidents.”17 Nevertheless, the situation of mutual suspicion between the government and the intellectuals was deeply entrenched, and resisted resolution through Gorbachev’s initiatives. Julie Curtis suggests that, “Gorbachev himself still clearly [thought] of literature in largely utilitarian, conventionally Soviet terms. . . . In 1988, . . . Gorbachev was still defining glasnost’ in terms highly reminiscent of Socialist Realism.”18 In fairness to Gorbachev, however, it is important to remember the intense pressure that he confronted from less liberal factions of the Communist Party. No doubt, it was partly for their benefit that he couched his desire for change in careful language, as when he affirmed: We are for glasnost’ without reservation or limitations, but for glasnost’ in the interests of socialism. To the question of whether glasnost’, criticism and democracy have limits we answer firmly: if glasnost’, criticism and democracy are in the interests of socialism and the interests of the people they have no limits! This is our criterion.19 The desire to restore some level of status to Soviet authors necessarily implied a need to reconsider the political environment in which authors functioned, including the legal framework that institutionalized this environment. Authors’ rights, as expressed in copyright law, would need to be reassessed. As perestroika progressed, ultimately transcending even Gorbachev’s imagination, the right of intellectuals to express themselves creatively, independent of government policy, became a feature of social change for the first time in Soviet, or Russian, history. Changes to the Soviet intellectual property regime during the late 1980s and early 1990s reflected the wider concerns of the perestroika period. Legis-

Copyright and the breakdown of Communism 155 lative reform that was initiated during this first period of change would greatly intensify after the disintegration of the Soviet empire in 1992. The political developments of the 1990s would also upset the equilibrium among the diverse interests across the spectrum of intellectual property matters, bringing a new and different degree of prioritization to each. As the Soviet Union was transformed into the Russian Federation and a number of independent republics, and as perestroika metamorphosed into a “transition” out of Communism and into democracy, technology, internationalization, and authorship all acquired new connotations.

Russian copyright reform The first changes to Russian intellectual property law occurred as part of the reform of Russian civil legislation undertaken in the late 1980s. After some delay, revisions to the Fundamentals of Civil Legislation were finally adopted on May 31, 1991, and they included a revised Chapter IV on copyright and moral rights.20 The Soviet administration had been intending to draft a new Civil Code since 1986, and copyright reform was an area of priority.21 The government initially hoped to develop specialized legislation on copyright that would be independent of the Civil Code, but this plan was abandoned as too time-consuming in the first round of revisions to the law.22 A specialist Copyright Act was eventually adopted in 1993; with the amendments of 1995, it is the primary copyright legislation in the Russian Federation today.23 In the early stages of law reform relating to intellectual property, a number of difficulties surfaced that would later become identifiable as characteristic problems of post-Communist reform. Among these were the inherently ambiguous nature of law reform, which was especially pronounced in the complex field of intellectual property regulation; the lack of stability and, indeed, the persistent intransigence of legal norms, whose substantive content was subject to constant fluctuations in the unstable Soviet and postSoviet legal infrastructure; and the ambiguities flowing from the mingling of international legal models and advice with Soviet and, later, Russian legal thinking. Due to these difficulties, Russia’s intellectual property regime continues to suffer from persistent structural confusion. Structural issues: the ambiguities of law reform Transitional versus long-term reform Law reform in the perestroika and post-Soviet eras was a self-contradictory process. It sought to fulfil two objectives that were potentially in strong conflict with each other. On the one hand, there was an urgent necessity for up-to-date legislation that would allow the administration to undertake modernizing measures in politics and economics. On the other hand, there

156 Copyright and the breakdown of Communism was a greater need for comprehensive legislation establishing a viable legal infrastructure for the post-Soviet political entity, whatever the precise shape the country might eventually assume, that would serve society effectively over the long term. This problem of different legal needs in the short and long term is another aspect of the temporal problem of “transitional” law discussed by Ruti Teitel. Teitel is particularly concerned with the legal response to authoritarianism, and the simultaneously backward and forwardlooking orientation of laws whose purpose is to enable and legitimize a conclusive break from authoritarian government.24 However, the problem of how to reconcile immediate requirements in a situation of social transformation with the management of long-term stability must also be recognized as a typically “transitional” legal problem. The changing functions of reform The difficulty faced by reformers in judging appropriate short and long-term goals was complicated by the fact that the functions of law reform in the Soviet Union and post-Communist Russia were changing constantly. As a result, Soviet and Russian reformers did not have a constant point of reference to help them gauge the progress and effects of legal reform, either from a purely legal or a policy point of view. Initially, in the perestroika period, the objective of law reform was to facilitate managed change within the Soviet Union, in order to prevent political and social stability from becoming endangered. When the Soviet Union collapsed, however, law reform unexpectedly had to provide a new framework for democratization and the rapid development of a market economy. This change of function had profound implications for intellectual property law. By the early 1990s, technology was increasingly perceived as the key to rapid economic growth in countries at various stages of development around the world, and, accurately or inaccurately, intellectual property law was widely accepted as the key to enabling the investment necessary for technology-based development.25 The changing role of law was also reflected in the radically different role played by foreign assistance and expertise at each stage of reform. In the first instance, foreign advice remained relatively discreet and disinterested; when the Soviet Union collapsed, foreign expertise was suddenly confronted with the much larger task of bringing Western law to the post-Soviet Russian Federation, a contribution that would require extensive direct involvement on the part of foreign legal experts. Legislative issues: the hierarchy of laws Russian reformers ultimately dealt with these problems by making a conscious decision that the 1991 civil legislation would be adopted expressly with a view to accommodating the problems of the Soviet/Russian transitional period, and gradually be superseded by more suitable legislation as

Copyright and the breakdown of Communism 157 the political situation of the country was clarified. The Fundamentals entered into force on January 1, 1992. However, the collapse of the Soviet Union intervened. Shortly after the break-up of the country, officially affirmed on December 8, 1991, the Russian Federation announced that the Soviet Fundamentals of Civil Legislation would nevertheless enter into force in the Russian Federation, which they did from August 3, 1992, and see the policy changes of the transitional period through to their implementation.26 As Michael Elst observes: This sudden move of the Supreme Soviet [of the Russian Federation] seems to have been inspired by the need for a legal framework for the radical politics of change. It is only a temporary measure: the Fundamentals will not be applied when a new Civil Code of the Russian Federation is adopted. As to the copyright provisions of the Fundamentals, it is clear that they will fairly soon be replaced by an autonomous Russian Copyright Law, of which several drafts are circulating at the moment.27 In practice, however, the conceptual decision to allow the Fundamentals to act as interim legislation was somewhat imperfectly realized. In lieu of allowing new legislation to supersede pre-existing norms, reformers instead created a hierarchy of simultaneously existing rules, where not only the Fundamentals, but the old Russian Civil Code of 1964, continue to be effective in many respects.28 This situation has two major, continuing implications for Russian law. First, earlier rules remain valid if they do not conflict with revised rules, so that current law is an accumulation of historical and present norms on which current legal claims may rely. Second, the prioritization of the Constitution, along with all laws adopted after June 12, 1990, seems to create a situation where rules of lower priority may potentially displace higher levels of law for reasons of chronology. This arrangement effectively disrupts the idea of a hierarchy of different kinds of rules based on their relative legal importance. It does not overstate the situation to say that the current legal hierarchy of Soviet rules is based primarily on chronological factors, and does not reflect a coherent legal infrastructure. Elst comments on these problems: As a result [of these measures], a kind of hierarchy is established, with the Civil Code [of the RSFSR] at the bottom, the new Fundamentals of Civil Legislation in the middle, and the Constitution and all legislative acts adopted after 12 June 1990 (such as the Press Law and the Law on Property) at the top. Norms of a lower level remain valid as long as they do not contradict norms of a higher level. Thus, provisions of the Civil Code which contradict the Fundamentals no longer apply. This vague criterion will inevitably lead, on a case-by-case basis, to a diversity of interpretations.29

158 Copyright and the breakdown of Communism The coexistence of legislative norms from different moments in Soviet and Russian history means that the present state of the law can be difficult to determine, while the ambivalence towards displacing old laws does not generally bode well for the development of a sound legal infrastructure. Since Elst’s 1993 analysis, the situation of copyright has been improved by the enactment of a Law on Copyright and Neighbouring Rights in 1993, amended in 1995, which was accompanied on its adoption by a separate declaration that the copyright-related provisions of the Fundamentals would no longer be valid. Nevertheless, the question remains as to how, if at all, the current copyright provisions interact with the other layers of transitional and post-Soviet legislation.30 Problems are presented by the interaction of the Copyright Act with the 1964 RSFSR Civil Code, which has yet to be replaced by a new Civil Code, the Constitution, and a number of other laws adopted after June 1990, such as laws on the mass media and privacy, related to the subjectmatter of copyright.31 Of these laws, the 1964 Civil Code contains an elaborate section dealing directly with copyright, and is most likely to present difficulties. If the provisions of the earlier legislation are inconsistent with the Copyright Act of 1993, as amended in 1995, they will not be applicable. Otherwise, the Russian Civil Code remains a primary source of law on authors’ rights. Technological issues: the “Digital Age” The impact of the Digital Age in Russia, as in other post-socialist countries, has been tremendous. On the one hand, the digital revolution is full of economic, social, and even political promise for Central and Eastern Europe. It presents the possibility of achieving a new degree of integration into international life with unprecedented ease, and it also offers the chance to generate rapid economic development through innovation. On the other hand, post-socialist countries have a great need for access to technology from advanced countries to fuel their internal development – a need that arises just as technology is becoming more expensive and inaccessible (at least by legal means) than ever before. The obstacles to technological change in Central and Eastern Europe are significant, and they are undoubtedly most daunting in Russia. Russia’s difficulties in making use of digital technology to build its development are wide ranging, and have their roots in considerations as diverse as postsocialist psychology and the rising cost of technology. In the first instance, Russia is a country of great technological potential, as evidenced, most obviously, by its superpower status during the Cold War. In the past, Russian technological excellence was greatly focused on its nuclear weapons program. From the post-War period to the 1980s, Russian eminence in scientific research, more generally, rivalled, or even surpassed, that of the United States, with the largest number of scientific publications in the

Copyright and the breakdown of Communism 159 world once appearing in the Russian language.32 Despite its outstanding potential for scientific excellence, however, Russia has not been a major force behind the development of digital-era technology. This inability to participate is partly the result of historical circumstance: as information and communications technologies were developing in the 1980s, Russia was already confronting a grave inner crisis that would eventually lead to the disintegration of the Soviet Union at the beginning of the next decade, inaugurating a period of destabilization. However, the inability of post-Soviet Russia to join in technological development is a more complex phenomenon, having to do with factors such as the history of government repression of innovative and creative activities. The tragedy of the Russian situation may be illustrated by a comparison with India. Considered a poor country, India has nevertheless conquered formidable obstacles to become a world leader in information technology, its prowess in this field even challenging American technological dominance.33 Like Russia, India has a long tradition of intellectual excellence, much of it, despite the discouragements of colonization, concentrated in scientific research. Indeed, it is interesting to note that a generation of Indian scientists, who were estranged from the United States in the Cold War political game, went to Russian universities and technical institutes for training. Indian excellence in information technology was able to develop in an environment of relative freedom, however, which helped scientists and inventors to travel some distance towards overcoming the handicap of poverty.34 Unfortunately, this cultural, or psychological, advantage was not enjoyed by post-socialist countries; in the case of Russia, it was never a feature of Russian society. The apparent absence of a culture of innovation is compounded by an additional problem which, through present in many post-socialist countries, is more strongly felt in Russia than anywhere else. This is the fact that the Digital Age has come to Russia in the context of a general climate of lawlessness. The paradox of copyright protection in an era of virtually unstoppable technological transfer is greatly heightened in this environment. It is difficult enough to enforce copyright in advanced countries like the United States, where copyright itself enjoys great credibility, and is additionally embedded in a strong culture of the rule of law. How, then, can the enforcement of copyright be promoted in a country where copyright law was itself systematically violated by government practice, and where the law in general was not seen to serve the public interest? This legal climate, when joined with the natural ease of disseminating technology in the Digital Age and the intense technological need experienced by a post-socialist population, is a potent combination for lawlessness. From the perspective of post-Soviet Russians, how is modern copyright law, which seeks to expand protection for technological works that can be physically restricted with only the greatest difficulty, any different from the Soviet law of the past that sought to exploit the poor and vulnerable for the benefit of the wealthy and the strong?

160 Copyright and the breakdown of Communism Ironically, the problem of access to technology presents an obstacle to economic and social development in post-socialist Russia that ordinary Russians seem to have taken into their own hands through the activity of piracy. Given the overall environment for copyright works, the misdirection of Russian creative energies into illicit activities seems almost inevitable. At the same time, the emphasis of the United States Trade Representative’s (USTR) office on the enactment of new and more effective “implementation and enforcement measures” in Russia cannot fail to provoke an ironic smile in the informed observer. The problem of enforcing copyright in the Digital Age is very much more complicated than the USTR may like to admit, and it is unlikely to the result even by such apparently proactive measures as increased training and resources for customs officials and the police. The effectiveness of copyright depends, in part, on the transformation of Russian legal culture; it also requires, as the international community would do well to note, reasonableness in the expansion of international copyright standards and practices. International issues: copyright reform in the international arena International factors have exercised an important influence on Soviet copyright reform from the earliest stages. At first, this was due to a perceived need for greater Soviet openness and involvement in the international arena. The Soviet Union was struggling to overcome a tradition of isolation in relation to both technology and culture. Copyright, especially in its international aspects, acquired a correspondingly heightened significance. With the collapse of the Soviet Union, the international dimension of post-Soviet copyright reform assumed a novel character. Concerns about the inadequacy of Soviet and Russian copyright in relation to internationally accepted standards had long been among the complex forces driving reform. However, international influences came to dominate the development of Russian law in this field by the mid-1990s, and rapidly overwhelmed other policy concerns. The structure of the Russian legal system allows international norms to be incorporated directly into current law reform. Where inconsistencies might arise between international and domestic principles, it is Russia’s tradition that international norms to which the country has adhered automatically supersede domestic legislation. This principle has now been explicitly enshrined in Article 3 of the 1993 Law on Copyright and Neighbouring Rights, which states that, “[w]here an international treaty to which the Russian Federation is party contains rules different from those specified in this Law, the provisions of the international treaty shall be applicable.” In Russian copyright law, therefore, international norms, such as those of the TRIPs Agreement, will ultimately stand at the apex of the Russian legal system.35 However, the implementation of international norms cannot be assured by simply incorporating them into the Russian legal system by default: Russia

Copyright and the breakdown of Communism 161 still lacks the infrastructure and enforcement mechanisms to bring them into effect.36 For this reason, the harmonization of Russian copyright law with international norms has remained a major international priority. The internationalization of Russian copyright reform can be traced by looking at how conformity with different international agreements has been pursued as a legislative priority at different stages of the reform effort. Russia’s tentative entry into the international copyright arena occurred through the Universal Copyright Convention, joined by the Soviet Union in 1973.37 In the perestroika years, it plunged into the full depth of international copyright relations, as part of the liberalization process under Gorbachev, through the Berne Convention. While the Soviet Union’s estrangement from international copyright relations differentiated it to an extent from other socialist jurisdictions, Russia’s post-Communist situation is directly comparable to that of other democratizing states in Central and Eastern Europe. In common with other post socialist countries, the past decade of Russian copyright reform has been progressively more colored by the overt influence of the World Trade Organization, and the equally powerful, though somewhat covert, influence of the United States. The European Union has been a primary source of copyright norms for the post-socialist countries of Central and Eastern Europe, but it has also exercised a notable, if indirect, influence on Russian copyright reform. Lastly, the strength of WIPO’s influence and the importance of the latest international copyright instruments issued by WIPO – the “Internet Treaties”38 – must be noted. As in the world’s more advanced copyright jurisdictions, the influence of the Internet Treaties is growing rapidly, and indeed, these have been the single driving force behind Russia’s most recent amendments to its copyright law, in 2004.39 The United States and the Berne Convention The American interest in post-socialist copyright reform is relatively straightforward. Central and Eastern European countries, and Russia in particular, represent an important new market for American technological and cultural products. In the absence of a reasonable level of copyright protection, however, the economic gains from this new market are likely to evaporate. However, the question of determining what is “reasonable” for American copyright industries to expect in post-socialist countries is highly contentious. The United States has been a powerful presence in Soviet intellectual property reform from an early date, and in many ways, American proposals opened the door onto international copyright relations for the Soviet Union. In its early stages, the American influence had a strongly persuasive effect on Soviet decisions in the field of copyright. In 1990, the United States and the Soviet Union had concluded an Agreement on Trade Relations, in which the Soviet Union agreed to improve intellectual property protection.40

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Soviet changes were to be enacted with a view to providing copyright protection for computer programs, and appropriate forms of intellectual property protection for other kinds of new and developing technologies.41 Interestingly, the American influence on Soviet copyright legislation in the perestroika era primarily appeared in the guise of lobbying for Soviet membership in the Berne Convention.42 In this respect, US involvement paralleled its earlier role in securing the accession of the USSR to the Universal Copyright Convention, despite international concerns about the potentially negative impact of Soviet participation, in 1973. In exchange for membership in Berne, the United States would grant the Soviet Union the highly coveted trade status of “most-favored nation” under the GATT. Soviet accession to the Berne Convention was significant for authors’ moral rights, though mainly from a symbolic, rather than a practical, point of view. A comparison of the United States experience with Berne reveals an interesting contrast. The American decision to join the Berne Convention at the rather late date of 1989 had to be reconciled, among other issues, with its long-standing ambivalence towards the protection of moral rights, as required by Article 6bis of the Convention. In the case of the Soviet Union, the treatment of moral rights was also reviewed as part of the accession process. Indeed, the legislative preparation for Russia’s accession to the Convention in 1995 was quite arduous, dating back to the early 1990s when copyright became a highly prioritized area of civil law reform. As had previously been the case in the United States, the conformity of Soviet law with Article 6bis of the Berne Convention was somewhat problematic. However, the United States had to reconcile copyright legislation that was economically oriented with an essentially different legal tradition emphasizing the protection of authors’ personal rights. Soviet legislation did not confront this challenge.43 In one form or another, moral rights have consistently been protected in Soviet and pre-Soviet legislation, and the 1961 Fundamentals of Civil Legislation made provision for moral rights. Rather, the difficulties that arose were a product of the sometimes casual method of expressing moral rights in Soviet legislation. One point of definite conflict occurred in relation to the question of duration, which had never been clearly specified for moral rights in Soviet law. Prior to Berne accession, in keeping with Article 6bis (2) of the Berne Convention, perpetual protection for paternity and integrity rights was introduced into Soviet law.44 Currently, the United States exerts a powerful influence on Russian copyright, as in other post-socialist countries, through two mechanisms. The first of these is channeled through the WTO, and involves both legal and political pressures. In legal terms, since the TRIPs Agreement of the WTO is largely based on American copyright principles – particularly in the area of new technologies – American copyright norms are involved in the effort to bring post-socialist legislation into conformity with WTO rules. In political terms, enjoying the benefits of WTO membership depends on the success of

Copyright and the breakdown of Communism 163 this effort – not only on the establishment of legislative conformity between post-socialist law and the TRIPs Agreement, but on the realization of effective measures for implementing and enforcing the new standards. Second, the office of the United States Trade Representative (USTR) keeps alive the possibility of complaining about the failure of post-socialist countries to maintain adequate protection for intellectual property rights by documenting their status in its Special 301 Priority Watch List.45 The report for the year 2005 identifies Russia, once again, as a “priority” country for violations of intellectual property rights, with the great majority of complaints arising in the specific area of copyright reform and enforcement.46 The USTR intends to undertake a special “out-of-cycle” review of Russia later in 2005, and the USTR mentions this review, along with discussions related to Russian trade privileges with the United States, as one of the measures for improving Russian compliance. The trade measures involved, of course, focus on “WTO accession discussions.”47 The WTO and the TRIPs Agreement PHILOSOPHICAL IMPLICATIONS

American membership in the Berne Union was both a prelude to, and preparation for, the greatly intensified involvement of the United States in international copyright matters in the early 1990s, culminating in the adoption of the TRIPs Agreement as one of the founding instruments of the World Trade Organization (WTO).48 TRIPs incorporates most of the substantive standards in the Berne Convention on copyright law.49 It is important to remember, though, that TRIPs is at heart a system based on the ability to penalize the inadequate enforcement of intellectual property rights through trade sanctions, and as such, presents a contrast to Berne.50 The orientation of TRIPs towards enforcement is apparent in the structural connection between intellectual property rights and WTO dispute settlement at its core.51 Accordingly, the TRIPs Agreement represents a new kind of intellectual property regime with unprecedented economic power and international reach, and, while its standards on copyright protection are based on the Berne Convention, it has superseded the Berne Union as the dominant international framework for copyright. The marriage of convenience between intellectual property rights and international trade in the TRIPs Agreement has profoundly influenced the development of copyright law in jurisdictions, including post-socialist countries, whose intellectual property systems have traditionally offered different or lesser protections for intellectual work than Western law – a situation that was, to some extent, tolerated by the Berne Convention.52 TRIPs has therefore made an indelible mark on post-Communist copyright reform, both in Russia and in the other countries of Central and Eastern Europe. As Adolf Dietz comments:

164 Copyright and the breakdown of Communism [T]he international importance of intellectual property has been strongly underlined by the creation of the Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods (TRIPs Agreement), forming an annex to the Agreement Establishing the World Trade Organization. This and other new developments represent an additional challenge for the ex-socialist countries. If they only had to deal with the socialization in the sense of transition from a centrally planned economy to market economy and intellectual property field as well, a relatively restricted number of legislative changes would probably have been sufficient. The task of the reformers in those countries was rendered much more difficult than that, however, since at the same time they were exposed to unprecedented dynamic changes in the whole field of intellectual property, of which the new obligations under the TRIPs Agreement are only one important international aspect.53 The TRIPs Agreement not only includes the substantive norms of the Berne Convention, but it also involves a special commitment to making intellectual property rights effective in practice, and on terms that are acceptable to Western interests. The focus of TRIPs on effective implementation reflects problems that have arisen in relation to key American – and sometimes Western European – industries, such as the protection of computer software and entertainment on digital media from “piracy,” the regulation of broadcasting and communication via the Internet, and the international distribution of motion pictures.54 In essence, the requirements of the TRIPs Agreement in relation to copyright have set the standard by which the development of copyright norms, and procedures for their implementation and enforcement, are measured in Russia. The transition from the Berne Convention to the TRIPs Agreement has had mixed implications for moral rights, which are unique in remaining outside the WTO enforcement mechanism.55 In theory, the TRIPs Agreement offers a certain minimum level of protection for moral rights that no member country should disregard – though the style of implementation and the standard of enforcement required remain open questions. Implications of the TRIPs formula for moral rights are far from clear. On the one hand, by specifically excluding them from the general dispute-settlement and enforcement regime of the WTO, the Agreement may signal a loss of prestige and status for these rights at the international level, leading to the trivialization of authors’ moral interests in member countries. On the other hand, the non-standardized approach to moral rights may present certain practical advantages for countries who are especially concerned about cultural policy. It may allow them to use moral rights as a relatively flexible instrument of domestic policy, and to escape the coercive constraints of international trade requirements.56 Current developments suggest that the reference to Article 6bis of the

Copyright and the breakdown of Communism 165 Berne Convention in the TRIPs Agreement may have encouraged at least some jurisdictions to think more seriously about protecting authors’ moral rights. The adoption of moral rights in the United Kingdom in 1989, in anticipation of copyright internationalization to come in the 1990s, may be taken as one illustration.57 More recent cases include the adoption of comprehensive moral rights legislation in Australia, in the year 2000, and rumors of an attempt to harmonize moral rights in the European Union.58 Given the growing importance of international standardization in copyright law, the exclusion of moral rights from the TRIPs Agreement may eventually become an awkward anomaly, and a situation that is not viable in the long term.59 The ambiguous attitude towards moral rights in the TRIPs Agreement is symptomatic of a much larger phenomenon, a fundamental shift in the character of international copyright law. Copyright is a hybrid sphere of law, combining private and public-law concepts, individual and social interests, and commercial and cultural dimensions. The precise equilibrium achieved among these diverse interests in different copyright instruments is a reflection of the special policy concerns that are predominant in each jurisdiction. For example, moral rights have been protected in unique formulations that exceed the scope of Article 6bis of the Berne Convention in countries as diverse as France, Germany, India, and Mali.60 However, the TRIPs Agreement does not favor regulatory subtlety, preferring, instead, to aim at the achievement of standard and consistent protections for copyright throughout the world.61 It is relatively simple to account for this trend. Economic growth and prosperity, particularly in the industrialized world, are increasingly dependent on technological innovation, and copyright has become the dominant legal mechanism for the regulation of new technologies. Culture has also acquired a new importance in this environment, since cultural pursuits provide much of the “raw material” for the “Information Society.” Cultural industries – film, publishing, and recording, among others – seem to have become more important in modern societies, economically and socially, than ever before. The implications of these developments for culture are quite ambivalent. While artists and creators of many kinds have much to gain from the opportunities presented by the Digital Age,62 their works, and through them, culture as a whole, are vulnerable to exploitation, potentially becoming mere tools for the achievement of commercial ends. PRACTICAL IMPLICATIONS

The conceptual orientation of the TRIPs Agreement is reflected in the concrete features of the new copyright scheme. Although the focus of TRIPs is not on the introduction of substantive copyright norms, the few changes that it does introduce into the international system are significant. Structurally, by bringing copyright into the international trade regime,

166 Copyright and the breakdown of Communism it requires not only national treatment – a foundational principle of the Berne Convention – but the application of most favored nation (MFN) treatment, as well. This means that a benefit extended to one member country of the WTO must be extended to them all. The combined operation of national treatment and the MFN principle received an interesting judicial consideration from the New York District Court of Appeals in the ITAR–Tass litigation.63 In contrast to the Berne Convention, TRIPs requires that works must be “fixed” to enjoy copyright protection – a provision drawn from American copyright law, and a potential obstacle to the recognition of copyright protection for folklore and traditional culture. Interestingly, Russian law has always accorded copyright protection to “oral works,” regardless of whether or not they are fixed.64 The TRIPs Agreement also includes specific measures for the protection of computer programs and databases through copyright law.65 Apart from legislative requirements, the TRIPs Agreement has extensive requirements for the “enforcement” of copyright. Some of these are stated in the Agreement – for example, extended powers of search and seizure for police and customs officials.66 Others are generally referred to in the Agreement, but their detailed implications remain to be discovered in the postTRIPs operation of copyright law. For example, in countries with underdeveloped judicial systems, the implementation of appropriate administrative and court infrastructure is essential for the “enforcement” of TRIPs. A consideration of the Special 301 Report before 2005 of the United States Trade Representative also shows the special emphasis brought to criminal law measures through TRIPs. The availability of criminal penalties is described in TRIPs, but in general terms; these are further expanded to technological issues in the WIPO Internet Treaties.67 The demands of the USTR for further implementation procedures in Russia are focused on those involving the application of criminal penalties in procedures for copyright infringement.68 The USTR is criticizing, among other things, the “lack of an effective and deterrent criminal enforcement system.”69 Notwithstanding Russia’s difficulties in enforcing copyright, it is interesting to note that, for Russian copyright lawyers, there is nothing new about the idea of criminal penalties for infringement: they have been a recognized part of Russian law at least since the adoption of the landmark copyright statute of 1911, which introduced some new provisions and, in other instances, codified accepted practices from the past.70 It is worth noting, though, that the significance of imprisonment in a society where offenders could be put to death by the Tsar was certainly different from what it means for a modern society. European copyright harmonization: an alternative view? In addition to the WTO and the TRIPs Agreement, the Copyright Harmonization Directives issued by the EU have also had a strong impact on copyright developments in Russia.71 The impact of the EU has been

Copyright and the breakdown of Communism 167 directly felt in the countries of Central and Eastern Europe that are aiming at EU accession. These countries themselves fall into three distinct groups: those that have already acceded to the EU as of May 1, 2004, those that are slated for accession in the coming decade, and those that have more remote hopes of accession, including Turkey. In relation to the latter group, the influence of the EU is felt somewhat indirectly; but even in the case of Turkey, EU-sponsored initiatives are a part of Turkish copyright reform.72 Russia does not properly fall into any of these three groups. Nevertheless, its relationship with the EU is one of great psychological and practical import. EU copyright regulation, in particular, is related to the development of closer economic and political ties with Russia, so that Russia is strongly aware of the distance between its own legislation of practices and those of the EU. Since Russia’s legal traditions are closely patterned on the civil law cultures of Western Europe, particularly France and Germany, European Union law has been a natural source of guidance for Russian reform. While Russia’s long-standing tradition of studying Western European models has made the assimilation of European thinking on copyright relatively easy, a tendency towards greater recognition of copyright’s cultural side at the EU has also encouraged Russia to consider the implications of its copyright reforms for cultural issues. As Michael Elst observes: With regard to the transition to a market-economy, the RF Copyright Law tries to reconcile two seemingly contradictory objectives. Copyright is, on the one hand, a legal mechanism to stimulate the creation and dissemination of works of art and literature in the market. Indeed, each exclusive right to an original work constitutes an intangible, marketable asset in the hands of the author, separate from and additional to the author’s property rights in the material object in which the work has been incorporated. On the other hand, the legislature recognizes that the author is confronted in this market with financially strong publishers, film producers, etc. who are keen to exploit the author’s work at as low a cost as possible (with the author himself being one of the cost factors the company tries to minimize). In such a context, copyright legislation has to fulfill a social function as well, trying to protect the author in his weak economic position against the market.73 However, it is difficult to assess the overall impact of EU law on Russia and other countries involved in intellectual property reform. Circumstances impose two serious limitations on the international viability of EU models. The first is a pragmatic consideration: although the EU is developing a legislative framework for copyright in the era of digital technology, its international influence remains somewhat secondary to that of the WTO. Indeed, it is difficult to assess the relationship between EU and WTO copyright initiatives at the international level. EU law appears to develop as

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much in parallel to the WTO as in overlapping directions; as Colin Tapper remarks about the EU and the US, the relationship between these two international bodies may also “operate like a ratchet, each expanding (but never contracting) copyright protection in response to the initiative of the other.”74 However, the EU model of harmonization falls short of presenting a viable international alternative to the WTO system. This leads to a second consideration, that EU harmonization has failed to produce comprehensive models of authors’ rights for the international arena. Moral rights, in particular, remain an area of continuing controversy in the EU, as in the TRIPs system, and are very far from being integrated into the harmonization scheme.75 Nevertheless, EU models may ultimately be used to improve the standards of protection in Berne and TRIPs, especially in selected areas related to technology and culture, and provide guidance for post-socialist countries beyond what is available through the wider international system. In the case of Russia, as in most developing and transitional countries, WTO membership has been an overwhelming economic priority of the 1990s.76 Copyright reform, above all, has been a means to this intensely desired end.77 The EU is one of only two international organisms – possibly in addition to WIPO – that may have sufficient clout to make an alternative view of copyright available to the international community and, in particular, to countries actively engaged in copyright reform. It remains to be seen whether the European approach will counterbalance the commercialism of the TRIPs Agreement in the long term, and if so, how this philosophical shift in the international copyright arena will play itself out in law reform. The WIPO Internet Treaties The two instruments known together as the WIPO Internet Treaties have arguably become the most influential documents in the worldwide development of digital copyright. Although they are known simply as the “Internet Treaties,” they encompass a range of issues arising in the area of new technologies. In addition to the phenomenon of Internet communication of copyright-protected works, they address new developments on both the cultural and practical fronts. Some of the major innovations introduced by them are measures for the protection of copyright information attached to works, and the outlawing of certain kinds of technological innovation seeking to overcome technological measures designed to prevent copying. In these respects, the Treaties represent the most advanced attempt yet to address the challenges to traditional copyright protection generated by the Digital Age. However, the fact that they are the first international attempt to legislative technological issues does not mean that they are successful in doing so from a broader perspective. The policies furthered by the WIPO Internet Treaties clearly buttress the attempts of copyright-holders in

Copyright and the breakdown of Communism 169 advanced countries to tighten their grip on copyright protection at a time when both the reality of copyright standards and their underlying rationale are challenged by technological change. The close relationship between the United States Digital Millennium Copyright Act and the provisions of the WIPO Internet Treaties is noteworthy, and has led many commentators to emphasize the apparent extension of US copyright policy on digital issues to the international arena at large.78 However, it would not be entirely correct to characterize the WIPO Internet Treaties as the product exclusively of an American copyright movement. In at least one crucial respect, the Treaties depart fundamentally from US copyright tradition: the WIPO Performances and Phonograms Treaty introduces into international law what may be the most significant innovation on moral rights since the adoption of Article 6bis of the Berne Convention in 1928.79 This is an expansion, not of concept, but of scope – the creation of a new moral right for performers.80 The provision in the WPPT is framed in identical terms to Article 6bis of the Berne Convention, and creates rights of attribution and integrity for performers which are analogous to the rights traditionally enjoyed by full-fledged authors, as they were once considered, in contrast to performers, who merely disseminated the composer’s creation.81 Russia’s failure to ratify the Internet Treaties is a matter of concern to the United States, and appears to be among the major reasons why the Russian Federation continues to be on the USTR’s Special 301 Priority Watch List. Generally speaking, Russia is actually quite well placed to ratify the Treaties: its copyright law includes moral rights for performers, and amendments in 2004 cover substantial ground in protecting digital copyright in Russia. Notably, Russia has created a new right of “making available” works via Internet communication which is equivalent to other forms of publication, or disclosure. The amendments also enact comprehensive new “enforcement” measures that are closely modelled on the texts of the WIPO Treaties. However, the USTR report points out that the full implementation of digital transmission rights has been delayed until September 2006 – in its view, an inadequate schedule for phasing in the rights. Nevertheless, the possibility of Russian ratification of the Internet Treaties clearly looms on the horizon.82

Current copyright law in Russia Copyright in the transitional years immediately preceding the dissolution of the Soviet Union reflected the liberalizing trends of Gorbachev’s administration. Particular emphasis was given to moral rights, which enjoyed unprecedented coverage in the revised, and ultimately transitional, legislation of 1991.83 However, the revised provisions were to be short lived. As the perestroika era was succeeded by the crisis and collapse of the Soviet Union, Soviet legal measures, including, to some extent, those adopted by the

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perestroika leadership, were thrown into disrepute. Not only was Soviet law unsuited to the changed political circumstances of the ex-Soviet Union, but it was also believed to stand for radically inappropriate social concepts. A separate reason for the discrediting of Soviet law was the unprecedented involvement of international experts, who were, perhaps understandably, contemptuous of the Soviet legal legacy in consolidating a post-Soviet legal infrastructure. This trend would only intensify over the first decade of Russian democracy. Copyright law, and intellectual property rights in general, were among the first areas of economic and commercial law that reformers deemed to be in need of change after the dissolution of the Soviet Union. For all of these reasons, the copyright provisions of the 1991 USSR Fundamentals of Civil Legislation, although they were extensive and represented significant modernization over the previous law, were regarded as strictly temporary measures. They remained in effect until special legislation on copyright was prepared and adopted in 1993.84 While the new Act introduces substantial technical improvements over the older legislation, it is not self-evident that its provisions represent improvements in terms of copyright policy. For example, the treatment of moral rights cannot really claim to have been improved in the Copyright Act of 1993. Rather, the Copyright Act effects a subtle shift in the focus of copyright, including a somewhat less idealistic approach to moral rights, which may be attributed in large part to the importance of accession to the TRIPs/WTO intellectual property regime for Russia. For these reasons, it is important to consider the approach of the 1991 Fundamentals to copyright, with special attention to the treatment of moral rights, before looking at how the approach to copyright evolved and changed in the 1993 Act. The 1991 USSR Fundamentals of Civil Legislation85 A consideration of Section IV of the Fundamentals of 1991 shows that authors’ rights were greatly expanded in scope over the Soviet legislation of 1961.86 First, after its removal from the 1961 Soviet Fundamentals, the terminology of an author’s “exclusive” rights was restored: Article 135 on the “Authors’ Rights” provides for the author to exercise exclusive rights over his or her work, including the moral rights of authorship, “the right to his or her name,” a right to the integrity of the work, a right of publication, and a right of use with an important “moral” dimension. It was the first time the exclusive nature of authorship rights had been recognized in Soviet legislation since 1928.87 The legislation also introduced two other significant rights of the author. The first of these was an author’s right of use, which specifically included his or her right to produce translations and revised editions of his or her own work.88 The right of use presents a contrast to both the long-standing principle of freedom of translation that dominated early Russian copyright, and

Copyright and the breakdown of Communism 171 the idea of government control that became the accepted norm after Soviet accession to the Universal Copyright Convention in 1973. The second was a “right to compensation for the consent to use, and the use of, the work.”89 The provisions were part of a comprehensive scheme to remove the possibility of compulsory purchase of an author’s work by the state, which was a key feature of the legislation of the 1960s, and a focal point of the controversy surrounding Soviet accession to the Universal Copyright Convention.90 Article 138 of the Fundamentals of 1991 reiterates that any use of authors work “can only be done with the consent of the author or his successors, and with payment of compensation.” The only exceptions to this rule arise in relation to uses of works by the public considered to be exempt from copyright restrictions; the list of fair uses, or fair dealings, consistent and in Article 138.2 closely resembles similar provisions in Western copyright laws, and also in providing specifically that “making one copy of a computer program by the owner of the copy” may be lawful.91 Adding to the general strength of the protection of authors, the 1991 Fundamentals extended the term of copyright to the lifetime of the author and 50 years after his or her death. In contrast, Soviet legislation – no doubt, concerned with the awkwardness of the inheritance – had eliminated protection of copyright after the author’s death, but Soviet accession to the UCC required that it be reintroduced, and the term provided for in Article 105 of the post-accession text of the 1961 fundamentals was for 25 years after the lifetime of the author. In relation to the moral rights framed by the new legislation, the 1991 Fundamentals either introduced new protections or significantly improved upon existing ones. The right of authorship and the right to one’s name are new rights; they respond to characteristic problems confronted by authors in Soviet times, such as the appropriation of works and manuscripts, and the systematic defamation and destruction of authors’ reputations for political reasons.92 The right of publication is also identified explicitly, in contrast to the Soviet legislation. Open recognition of this right is especially meaningful in a country where political obstacles to publication imposed silence on generations of writers. The integrity right is defined in precise and unusually strong terms in the 1991 Fundamentals, as the right of the author “to keep his or her work intact.” This right seems to be even more far-reaching than the idea of a right to the “inviolability” of a work under Soviet law. Inviolability, though strong, seems a more general concept; on the other hand, keeping a work “intact” is an utterly unambiguous indication that any alteration of the work without the author’s consent, even if it is undertaken by a publishing house, is prohibited. The omission of “prejudice to honour or reputation,” an important departure from Article 6bis of the Berne Convention, is retained from the Soviet legislation, but given new life in the 1991 Fundamentals. This formula for the right of integrity responds fundamentally to censorship under the Soviet regime and, as such, seems even more significant than in

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jurisdictions with traditionally strong moral rights protection, such as France. The Fundamentals of 1991 are generous to the author in their treatment of the inalienability and inheritability of moral rights. Article 135.6 provides that the author’s right to the integrity of the work, as well as his or her right of publication, shall be inherited by his or her “successors.” In view of the following provision that restricts the rights of the “other successors” to inheriting a right of use only, it is clear that the moral rights, in keeping with their “personal” character, can descend only to the author’s heirs, rather than his or her successors in title.93 For the first time in Russian or Soviet copyright law, Article 137 sets out a specific duration for authors’ moral rights. Article 137.3 provides that the rights of authorship, name, and integrity “shall be protected permanently.” In this respect, the transitional legislation follows the tradition of protection in strong moral rights jurisdictions, especially France.94 Presumably, since the moral rights are inherited by the author’s heirs, it is their prerogative to enforce them after the author’s death. However, Section IV of the Fundamentals does not address specifically the methods of enforcing moral rights post mortem auctoris.95 Finally, the Fundamentals take the unusual step of protecting the moral rights of performers. Article 141.1 provides that performers, actors, stage managers, and conductors shall have a right to the protection of their name, as well as a right to the protection of their “performance or rendition” from distortion; the right to be named is also protected “without limitation in time.”96 Performers have traditionally been viewed as “disseminators” of the works of composers, rather than creators and authors in their own right. The decision to protect performers’ moral rights carried the Soviet Union forward into the vanguard of a new development in moral rights doctrine. In addition, an area of ambiguity in the Fundamentals arises in relation to works which are expressed orally, but not fixed: in keeping with the Russian tradition expressed in the Copyright Act of 1911, orally delivered works are entitled to protection. However, the provision seems designed to address specific kinds of public appearances and “performances”; the protection of folklore is specifically excluded by Article 134.5. The Fundamentals depart from earlier Russian policy in this respect: although Section 1 of the 1911 Act listed only “speeches, lectures, essays, reports, sermons” in the section on oral works, it included other provisions on folklore. For example, Section 13 provided for the copyright protection of “authors are combinations of folklore, melodies, details, short stories and similar folk works that exists in aural forms,” for 50 years from the date of publication – without, however, precluding others from making their own compilations of the same folk culture. Perhaps the exclusion of folklore from the Fundamentals signified the intention of the Russian government to explore separate legislation on cultural heritage, a hypothesis that seems borne out by the subsequent legislative treatment of culture in the Russian Federation.

Copyright and the breakdown of Communism 173 The expansion of copyright in the 1991 Fundamentals, and the extended treatment of moral rights in particular, points to the perception of Gorbachev’s administration that the government needed to make amends for the oppressive treatment of authors and artists under the earlier Soviet regime. Due to the collapse of the Soviet Union as a political entity in 1992, the Fundamentals came to serve as transitional legislation, and were effectively replaced by the Copyright Act of 1993. In the two intervening years, Soviet law reform moved rapidly into a new universe, where democratization, market economics, and conformity with “private” international law became the primary forces driving copyright reform. In this radically changed environment, how did the copyright provisions of 1991 fare? Did their spirit continue to animate the Copyright Act, and if so, in what form? The Copyright Act of 1993 The flavor of the Copyright Act of 1993 is quite different from that of the 1991 Fundamentals.97 The choice of a specialized legislative act dealing with copyright matters in itself represents a major change: it removes copyright from the ambit of the Civil Code. The decision to make this basic structural change, after a long-standing commitment to the inclusion of copyright in Russian civil legislation, probably reflects American aversion to the idea. In particular, provisions of the RSFSR Civil Code of 1964 still appear to be in force, and a close study of the Draft Civil Code provisions on copyright that are currently circulating suggests that the old Civil Code has substantially influenced the current draft legislation.98 The Americans appear to be quite concerned that the socialist-era provisions serve as a poor foundation for compliance with TRIPs. For example, the International Intellectual Property Alliance (IIPA), a special interest organization that works closely with the US Trade Representative, observed in its Special 301 Recommendations of February 24, 1997: There is a dangerous development brewing in several C.I.S. countries, including the Russian Federation. A comprehensive reform of the Civil Code of these nations is underway. Efforts to revise the civil code to include copyright provisions in these codes should be opposed. For example, in the case of Russia, previous drafts of the civil code reforms included IPR provisions which were completely incompatible with the bilateral Trade Agreement, the Berne Convention and TRIPs. . . . Each C.I.S. country should enact separate copyright laws rather than build on the foundation of the Soviet-era civil codes.99 The Copyright Act of 1993 is a modern piece of legislation in which Russian drafters clearly drew heavily upon the Berne Convention for the Protection of Literary and Artistic Works. The Act also retains a number of features which respond to Soviet-era abuses, although their presence is

174 Copyright and the breakdown of Communism somewhat subtler and less overt than in the 1991 Fundamentals. As Article 9.1 affirms, copyright continues to be an automatic right, arising out of the “mere fact of [the] creation” of a “scientific, literary or artistic work.” The provisions of Article 12 on translations and other derivative works ensure that the authors’ rights, including moral rights, will be protected by those who translate or adapt a work.100 In particular, Article 12.1 includes translations, adaptations, arrangements, or other “transformations” of the work, making the moral right particularly well-suited to the ever-changing forms of creative work in today’s environment of digital technology. The author-centered Russian approach to copyright is already apparent in the definitions section of the Law, which specifies that an author must be the “natural person whose creative effort has brought about the creation of a work.”101 The Act also provides a number of definitions of technological works and activities, including computer programs (10), databases (3), audiovisual works (2), and phonograms and their reproduction (25 and 5).102 The Act provides specifically that copyright extends to “literary works (including computer programs),” and its approach to computer programs is sophisticated, extending protection to “all types of computer program,” and to both the “source code and the object code.”103 The latter provision theoretically moves a step beyond North American law and practice, to protect both the form and function of computer programs, while extension of copyright protection on the basis of their “functional” features remains the norm in the United States.104 The Act also makes specific provision for the protection of “collections,” including “databases,” and, a fundamental departure from Russian tradition, derivative works such as “translation, adaptations,” and so forth. The author’s economic rights are stated, in Article 16 of the Act, to the “exclusive,” and includes the possibility of carrying out or authorizing the various prerogatives of authorship. In contrast to Russian tradition of very long standing, rights of translation and adaptation are included among the author’s exclusive economic rights. The Act seems to address the problem of expropriation of authors’ works, legally and practically tolerated in the Soviet Union, by creating and providing a detailed elaboration of an author’s specific right to disclose his or her own work.105 Disclosure of a work cannot occur without the author’s consent, while the author’s right to disclose his or her own work is stated in Article 15 on Moral Rights. The Russian Law includes a number of provisions geared towards the recognition of the public interest in copyright works. In this, it diverges from the increasingly exclusive character of Western copyright law, particularly as illustrated by the American and common-law models.106 It might be tempting at first glance to assume that the sense of a collective interest in copyright works is a product of the socialist mentality. However, if we think back to the socialist and Soviet approaches to copyright law – for example, in the nationalization decrees and, later, the Soviet Civil Code – we cannot

Copyright and the breakdown of Communism 175 fail to note that the public or collective interest, though identified, was poorly protected. Rather, the state enjoyed the benefits of copyright in more or less the same way that private copyright owners enjoy them in marketdriven societies – except that the rights of the state extended to expropriation, which is of course unavailable in modern jurisdictions. Interestingly, allowable uses of a work in Russia generally require the identification of the author, even where payment of a royalty is not required.107 Russian law also provides for the reproduction of works for personal purposes with the payment of levies collected on behalf of authors and performers by collecting societies – a common practice, for example, in Western Europe and Canada. Interestingly, the legislation provides that computer programs and databases may be reproduced or even “decompiled” by a person who already owns a lawful copy of the technological work, for the purposes of ensuring their usefulness or replacing a damaged copy – broader rights than those recognized in more advanced jurisdictions.108 These provisions are supplemented by the Law on Computer Programs and Databases, discussed in detail below. The Copyright Act contains a number of general provisions that support the regime for authors’ moral rights, which continue to enjoy substantial protection. Indeed, moral rights in Russian legislation enjoy even greater recognition than what is generally accorded to them in their heartland, the civil law countries of Continental Europe. Notwithstanding international pressures, moral rights, in keeping with Soviet and Russian tradition, remain a central feature of the new Act. They enjoy substantial protection in the Copyright Act of 1993. However, the moral rights provisions in the new Act reveal a strong Western influence, in terms of both structure and content. Article 6bis of the Berne Convention is the model on which moral rights protection is based. The distinctiveness of earlier expressions of moral rights in Russian laws has largely been abandoned. A general reduction in their legal stature from 1991 is evident and can probably be attributed to the secondary importance of moral rights, as opposed to economic rights, in the international copyright regime as represented by TRIPs. For the first time in the history of Russian copyright law, the Act of 1993 introduces a clear separation between the moral and economic rights of authors. The two areas are dealt with in two separate articles. Article 16 on “Economic Rights,” like the Fundamentals of 1991, affirms the exclusive nature of the author’s right in his or her works. Article 15 on “Moral Rights” provides for the “enjoy[ment]” of five moral rights. These include a “right of authorship,” which protects the right of authors to be acknowledged as the author of their own work; a “right to be named,” which allows authors to exploit their work, not only in their own name, but also, under a pseudonym, or anonymously;109 a “right of disclosure,” which allows the author to determine the circumstances of first publication, and also includes a right to “disavow or withdraw” the work from circulation; and, finally, a “right to the protection of the author’s reputation” that replaces the right of

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integrity, and allows the author to protect his or her work from any distortion or derogatory act that is “liable to prejudice his honour or dignity.”110 It is interesting to note that the right of withdrawal receives extensive treatment: Article 15.2 provides a detailed description of the circumstances in which the right may be exercised, including the author’s obligation to compensate the user of the work for any damages resulting from the decision to withdraw. Two noteworthy changes have occurred in the spectrum of rights protected since 1991. First, the broad and extensive list of rights in the Fundamentals, which is inclusive and not limited to the rights listed in Article 135.2, has been replaced by an apparently “closed” list of moral rights in Article 15 of the Copyright Act. Article 15 provides, simply, that “[t]he author shall enjoy the following moral rights in relation to his work.” The combining of moral and economic rights in one section on the author’s rights emphasizes the overlapping implications of moral and economic interests arising from the creation and use of creative works – for example, in relation to translations – a perspective that has been lost in the 1993 Act. Second, the recasting of the integrity right as a right of reputation in the Copyright Act is striking. The right of reputation clearly shows the imprint of the right of integrity in Article 6bis of the Berne Convention, which prohibits only those acts that would negatively affect an author’s “honour or reputation” through their dealings with the work. However, the provisions of Article 15 actually seem somewhat weaker than Article 6bis. Article 6bis prohibits “any distortion, mutilation or other modification of, or other derogatory action in relation to, the . . . work”; Article 15 prohibits only “any distortion or other derogatory act.” The language seems sufficiently precise to imply an intentional restriction on the scope of Article 6bis, but much will depend here on the interpretation of the Russian courts. Although Article 15 protects a right of “reputation,” it does not explicitly provide for recourse in the case of damage to an author’s reputation; it is only concerned with the possibility of prejudice to his or her “honour or dignity.” However, it does seem to allow a flexible standard of proof, since the derogatory act need only be likely – “liable” – to cause damage. If, indeed, Article 15 does not meet the standard of protection required by Article 6bis, the exclusion of moral rights from the TRIPs Agreement means that the Russian Federation does not face any overwhelming international pressure to improve the protection of the integrity right. On the new right of integrity, Pozhitkov’s comments seem apt: The right to integrity was rescinded and substituted by the right to protection of an author’s reputation [in the 1993 Copyright Act] which permits him to object to any distortion of a work or any derogatory action in relation thereto [that is “liable to prejudice his honour or dignity”]. It remains to be seen how broadly the courts will interpret this provision.111

Copyright and the breakdown of Communism 177 When viewed in the context of Russian copyright history, the narrowness of the integrity right in the Copyright Act is surprising. The right to the “inviolability” of the work is a long tradition in Russian copyright law, and, even in Soviet times, it was given lip-service in copyright jurisprudence. The 1991 Fundamentals reflected this tradition, and arguably strengthened it by assuring authors that they had the right to keep their work “intact.” It is quite probable that the change, once again, reflects the American influence on Russian law reform: the integrity right is generally acknowledged to be the most powerful moral right of the author, and the American film industry, which has already faced moral rights problems in France, may well fear the implications of a strong Russian right of integrity for their exports to Russia.112 In contrast to the integrity right, however, the rights of authorship and name have been retained in Article 15 of the Copyright Act, perhaps out of sensitivity to the Soviet-era treatment of authorship. Article 15 also specifies that moral rights are independent of economic rights, and may continue to be exercised by the author even after he or she has relinquished his or her economic rights. The suggestion of inalienability in this provision is not further clarified by provisions on the possibility of waiving moral rights.113 However, Article 27 on the Term of Copyright goes on to deal with the issue of the duration of moral rights. Article 27.1 provides that the right of authorship, and authors’ right to their name and the protection of their reputation, “shall be protected without limitation in time.” While moral rights have generally been acknowledged in Soviet jurisprudence to be protected in perpetuity,114 the Copyright Act of 1993 followed the 1991 Fundamentals in providing explicitly for the perpetual protection of the moral rights recognized in the Act. The related question of whether moral rights may be inherited receives a detailed treatment in Article 29 on the “Transfer of Copyright by Succession.” Like the Fundamentals, the Act refers to “succession” in the specific sense of succession in title. In keeping with their “personal” character, the three principal moral rights of authorship, name, and reputation cannot be transferred by succession; they can only be inherited by the heirs of the author. The Copyright Act takes the laudable step of addressing the potentially problematic issue of who is to enforce an author’s moral rights after his or her death. This problem was beyond the scope of the transitional copyright provisions in the Fundamentals of 1991. Article 27.2 of the Copyright Act provides that the right to be named as the author of one’s own works and the author’s right to the protection of his or her reputation can be enforced by an executor appointed for this purpose by the author, or, in the absence of such an appointment, by the author’s own heirs or by “an agency of the Russian Federation especially empowered to do so” after his or her death. It is interesting to note the implied legislative preference for an “executor of moral rights.” Practical problems may well arise from entrusting them to the author’s heirs, particularly where the author’s descendants are motivated

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by personal considerations or prevented by insufficient knowledge to assert moral rights for the benefit of the author’s interests.115 However, a state agency for administering moral rights after the author’s death does not yet appear to have been created.116 Even if a state agency responsible for moral rights existed, entrusting moral rights protection to the state at some point in their life-cycle may, in contrast to countries such as France and Germany, present problems in the Russian Federation. After all, Russia does not have a tradition of respecting press freedom, and creative writers have historically paid a very high price for exercising their profession in this restrictive political environment. It now seems incongruous for the post-Soviet state to become responsible for safeguarding authors’ moral rights. In the past, the Union of Soviet Writers was charged with the implementation of authors’ rights; at the time of Soviet accession to the UCC, the Writers’ Union was revamped to deal with the enforcement of Soviet copyright abroad. However, the history of the Union was one of antagonism to the dissident community, and indeed, it often became an instrument of repression against its own members.117 More generally, the Russian Copyright Act of 1993 is quite original in addressing the vulnerability of authors’ moral rights in the public domain. The importance of moral rights does not evaporate when copyright in creative works expires and they enter the public domain. Rather, moral rights in public domain works assume a broader significance for cultural heritage. In a country like the Soviet Union, where the integrity of works as well as the integrity of authorship, attribution, and reputation were vulnerable to attack by the state, the continued protection of moral rights in the public domain may have considerable value. Article 28.2 states that the three main moral rights of authorship, name, and reputation, must be respected when using works in the public domain. Article 28.3 sets up a domaine public payant scheme for collecting a special royalty from public domain works to be paid into “an authors’ professional fund or to an organization for the collective administration of the economic rights of authors.” The scheme could contribute to the welfare of the post-Soviet creative community; it also has the symbolic value of representing a benefit flowing from the repression of past writers to future generations of authors. However, details of the plan, including who will receive the funds and how they will be spent, still need to be worked out in greater detail.118 One more aspect of the protection of moral rights post mortem auctoris is noteworthy: Article 27.5 provides for the protection of copyright and moral rights in the case of an author who has been “rehabilitated posthumously after having been the subject of repressive measures.” In effect, this provision attempts to compensate authors for the lack of enjoyment of the rights during their lifetime by beginning to run the copyright term from January 1 of the year following the rehabilitation decree. Since the repression of authors, leading to the denial of their legal rights, was widespread during Soviet rule, this provision is an important gesture of reconciliation, and may

Copyright and the breakdown of Communism 179 also have practical implications for authors’ descendants, and for the revival of the reputations of deceased authors. The Copyright Act follows the innovative approach of the Fundamentals to performers’ rights, including its provisions recognizing the performer’s right to be named, and to ensure the protection of his or her performance “against any distortion or other derogatory act liable to prejudice his honour or dignity.” These protections may be found in Article 27 of the Copyright Act on the “Rights of the Performer.” However, this moral right in the Copyright Act is applicable only to the performer, and, unlike the 1991 Fundamentals, does not offer protection to actors or stage managers. Here, too, the influence of the international standard is apparent, including the concerns of the American film industry about the consequences of allowing actors to claim moral rights. Moreover, Russia, too, may have wanted to protect its historically important film industry from complications arising out of moral rights. In addition to extensive provisions on moral rights, the Copyright Act of 1993 makes provision for protection of the droit de suite, or the right of visual artists to a resale royalty from sales of their work after they initially part with it to a first buyer. The right is an accepted method of responding to the tendency of works of visual art to appreciate in value over time, sometimes substantially. Accordingly, where a work is sold at a price that is at least 20 percent greater than that of the previous sale, the seller is required to pay its creator a resale royalty of 5 percent of the resale price. Although the droit de suite is not technically a “moral right,” it is supported by the rationale of a lasting connection between an author and his or her own work which is that the heart of moral rights doctrine. Russian law does indeed seem to conceive of the droit de suite as a variety of moral right: it is protected, in Article 17, in conjunction with an additional right of visual artists to continue to have access to their work after it is sold.119 Complementary legislation: the law on computer programs and databases It is a peculiarity of the Russian intellectual property system that the substance of copyright-related matters is not exclusively confined to the Copyright Act of 1993. Other legislation deals with copyright issues in a variety of contexts, including culture and cultural heritage, information, and privacy. Interestingly, computer programs are another such area. Notwithstanding the fairly extensive coverage of computer programs in the Law on Copyright, they are also dealt with in specific legislation, the Law on the Legal Protection of Computer Programs and Databases of 1992, amended in 2002.120 In some respects, the provisions of this special law overlap with the Copyright Act; in others, it introduces specific measures directed towards the software industry. In these, its coverage is extraordinarily comprehensive. In effect, the law not only allows for computer programs to be

180 Copyright and the breakdown of Communism recognized as a form of literary work on par with every other; it also confers upon computer programmers a status more or less equivalent to that of authors generally. Notably, the Law creates an exclusive right of authorship for programmers, extended to the creators of databases, reserved for “the natural person whose creative effort has brought about the creation of the computer program or database.”121 The Russian law takes the highly unusual step of creating moral rights for computer programmers, as well: the Law provides for rights of authorship, name, disclosure and withdrawal, and even integrity, which are no further restricted from their general availability to authors under the Law on Copyright.122 Currently, Russia stands with India as one of the few jurisdictions in the world to confront directly the problem of moral rights in software.123 Nevertheless, the right of software corporations in the work of their employees is protected by Article 12, which specifies that exclusive rights in a program or database created by an author who is an employee “shall [in the absence of contractual provisions] belong to the . . . employer.” Interestingly, the rights of disclosure and recall were added to the Act in 2002, along with the rights of employers. The overall logic of the scheme is not entirely clear, as the existence of moral rights independently of economic – or, in the language of the Russian Law, “exclusive” – rights will not facilitate the dealings of companies with information technology. However, from the perspective of protecting free speech, the approach of the Russian legislator seems perfectly understandable – especially in view of the fact that oppression of free speech in the Soviet context affected scientists in much the same way as it affected artists, and the Soviet scientific community can claim its own share of outspoken and courageous dissenters.124 One of the objectives of bringing copyright into the Civil Code reform will probably be to eliminate this proliferation of legislation on copyrightrelated matters – or, rather, by bringing copyright into the overall scheme of the Civil Code, to integrate the protection of intellectual works into the general legal system of the Russian Federation. Provisions related to copyright and intellectual property will be concentrated in the relevant chapters of the Code. However, like harmonious musical sequences that draw their significance from the surrounding context of notes, they will also be informed by the broader spirit of the Code as a whole. The 2004 amendments to the 1993 Copyright Act The year 2004 has seen the most comprehensive revisions yet to the Copyright Act of 1993. The amendments are clearly directed towards bringing Russian copyright law into conformity with the WIPO Internet Treaties. Russia’s action in this regard is timely, as many jurisdictions are currently involved in similar processes of copyright reform.125 However, Russia is also acting early in the sense that it has yet to ratify the Internet Treaties. The changes effected by the 2004 amendments include the addition of a

Copyright and the breakdown of Communism 181 right of making a work available to the public via the Internet to the roster of authors’ exclusive rights.126 The Russian amendments exactly mirror the language of the Internet Treaties in this regard, and, while the changes take effect immediately in relation to copyright works, they are expected to enter into force on September 1, 2006 in relation to Internet communication of performances and sound recordings127 – a delay that has met with disapproval from the Office of the United States Trade Representative. In conformity with the WIPO Treaties, the amendments also make it an offense to remove digital rights information about copyright and neighboring rights from a work, as is interference with technological measures aimed at preventing copyright infringement.128 The amendments include a list of fees and civil penalties associated with the civil offense of infringement, and they make provision for confiscation of infringing copies.129 Other noteworthy changes are the extension of copyright term to the lifetime of the author and 70 years after his or her death, and the extension of retroactive protection to works created before 1993.130 In the case of authors who have been rehabilitated after the fall of the Soviet Union, the term of copyright protection begins to run only from January 1 of the year following the rehabilitation – a provision that also applies retroactively – and continues in force until 70 years after the date of the author’s rehabilitation. As the most specialized and up-to-date legislation in the field, the Copyright Act of 1993, as amended in 1995 and 2004, is the primary legislation currently dealing with copyright in the Russian Federation. In contrast to certain other areas of law, the Copyright Act specifically replaces the provisions of the Fundamentals of 1991 on authors’ rights. However, the Act does not explicitly override the provisions of the 1964 RSFSR Civil Code on copyright. Rather, if the provisions of the old Civil Code are in conflict with those of the Copyright Act, the Copyright Act will prevail. Since Section IV of the Civil Code officially continues to be in force, the theoretical possibility of applying additional or complementary provisions arises.131 In the light of this situation, does the Civil Code have any practical implications for the protection of authors’ moral rights in Russia? The 1964 RSFSR Civil Code The provisions of the 1964 RSFSR Civil Code on moral rights adhere closely to the USSR model legislation in this area, the 1961 Fundamentals of Civil Legislation.132 There are many areas in which the moral rights provisions of the Civil Code diverge from the current Copyright Act. In some instances, the differences arise out of philosophical, rather than technical, inconsistencies. In this case, it should probably be assumed that the old provisions have ceased to apply, though no specific provision to this effect can be found in the Copyright Act.133 In other cases, however, there is no obvious legal or conceptual inconsistency with the new law. Rather, the provisions of the RSFSR Code are more extensive than those in the Copyright Act.134

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In effect, a higher level of protection seems to have been maintained surreptitiously. One wonders if this is intentional – and, if so, whether it is one of the reasons for American disapproval of codified copyright provisions in Russian law. In keeping with Soviet legal tradition, the Civil Code recognizes a broad moral right of integrity. Article 479 protects the author’s right “to retain his work intact” – a strong provision that was originally retained in the 1991 Fundamentals, but which has now been diluted in Article 15 of the Copyright Act to the relatively narrow right of reputation. Article 480 of the Civil Code substantially elaborates the right of integrity. It generally prohibits “any changes [to] the work” without the consent of the author, and it goes on to prohibit specifically the addition of illustrations, forewords, afterwards, commentaries, or “any explanations.” The scope of the integrity right in the Civil Code substantially exceeds the protection in Article 15 of the Copyright Act. At the same time, it would be difficult to claim that the spirit of the provisions is inconsistent with the policies of the Copyright Act, which is, presumably, supposed to improve the situation of authors’ rights in post-Soviet society. How can these different approaches to the right of integrity be reconciled? The clearest legal interpretation seems to be that, in case of need, the old law can supplement the current Article 15. The RSFSR Civil Code also deals specifically with the infringement of moral rights, in Article 499 on the “Protection of an Author’s Personal NonProperty Rights.” The author or, after his or her death, the executor of his or her moral rights, whether it is an appointed person, an heir, or a copyright organization, may assert the right of integrity or any other moral right, and demand its reinstatement. For example, the claimant may request “the restoration of the right infringed (introduction of appropriate corrections, publication in the press or [elsewhere] . . . of said infringement), the prohibition of the publication of the work, or the cessation of its dissemination.”135 In contrast, the Copyright Act does not address the specific question of moral rights infringement, and the remedies and damages that would be available to an author in these circumstances. Rather, the issue of copyright infringement is addressed more generally under Title V of the Act on “Sanctions for the Protection of Copyright and Neighbouring Rights.” Article 49 sets out a number of remedies that are available in the case of copyright infringement. However, the Article is clearly framed to accommodate the infringement of economic rights as a priority, and seems to exclude moral rights by implication. For example, Article 49.1 states that the “owner of exclusive rights, whether copyright or neighbouring rights” [my italics] may demand redress from someone who infringes his or her rights. Since moral and economic rights are split between two articles, only the economic rights are specifically designated as “exclusive” rights. Moreover, moral rights are, normally speaking, non-transferable. The ability of an owner to claim infringement, in lieu of the author – though the author and the owner may be one person – also seems to inhibit the recognition of a moral rights

Copyright and the breakdown of Communism 183 infringement. For these reasons, the provisions of the Civil Code on moral rights infringement actually represent an improvement to the enforceability of the moral rights scheme in the Copyright Act, and can help to strengthen the position of authors. Finally, the RSFSR Civil Code contains a number of provisions on the compulsory purchase of authors’ copyrights. These provisions proved to be quite controversial at the time of Soviet accession to the UCC. Nevertheless, a comparison of the provisions shows that they were not amended as part of the accession process, and parallel provisions continue to be present in Articles 501 and 502 of the RSFSR Civil Code.136 Article 501 allows the state to purchase works on a compulsory basis from either a living author or his or her heirs.137 Article 502 allows the state to acquire the copyright in public domain works, by declaring them state property. Provisions on the acquisition of copyright by the state have a long pedigree in Soviet and Russian law; it is probably correct to trace them back, at least in spirit, to the program of expropriations undertaken by the Bolsheviks in the early years of the Soviet Union. It may be argued that expropriations are strongly incompatible with both the market-oriented spirit of the current copyright regime, and the more author-oriented law of the Berne Union. In particular, the validity of Article 501 might be questioned on these grounds. But what is the situation with respect to Article 502? Is the purchase of public domain works by the state, and the potential restriction of public access to these works through state ownership, equally incompatible with a market-oriented copyright system? For example, state ownership can restrict the ability of industry and individuals to reproduce and work with classic or controversial works. On the other hand, are there policy reasons why state ownership of the public domain might be a good thing, such as undertaking active measures for the protection of cultural heritage, or protecting classic works from excessive or careless exploitation by private publishers? Should the state in a post-authoritarian society be entrusted with such tasks, or is the very idea of state ownership inimical to freedom of culture?

Conclusion The Russian Federation has successfully enacted a regime for the postCommunist protection of authors’ rights in its Law on Copyright and Neighbouring Rights of 1993. The law represents significant progress towards harmonizing Russian copyright with the Berne Convention. Indeed, in many ways, the new Copyright Act is a true example of a harmonization effort: it enacts a number of measures in Russian law that correspond to the requirements of the Berne Convention without, however, making a complete sacrifice of accumulated knowledge about copyright in the Russian context. The new law consistently bears witness to the remembered difficulties of the Soviet era, including, above all, the inadequacy of protection

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for both the human rights of authors and the best interest of the Soviet public at large. Notwithstanding its need to confront the Soviet past, the new law is much more strongly oriented towards the international copyright system than the transitional legislation of 1991. This seems a most natural development: Russia entered the Berne Union in 1995, and the reformed legislation of 1993 needed to respond to new technological developments – a theme of Russian copyright reform since the 1960s, but never before confronted in so urgent a form. Among the features of Russian law that maintain a firm connection with the past is its continued focus on the moral rights of authors. Article 15 of the 1993 copyright law closely mirrors Article 6bis of the Berne Convention. Five moral rights are protected in Russian law: a right of authorship, or attribution; a “right to be named”; a right of disclosure; a right of withdrawal; and a right “to the protection of the author’s reputation.” In addition, certain provisions of the RSFSR Civil Code of 1964 related to copyright may continue to operate, with some benefit to the moral rights of authors. Notably, the Civil Code provides for the protection of an extensive right of integrity, and it creates a specific action for the infringement of the author’s moral right. However, the Russian scheme remains incomplete. Russian copyright suffers from a number of shortcomings – legislative, procedural, and administrative in nature, as well as difficulties of the level of policy development. The political instability of the country and its economic crises over the past decade are partly to blame, and have encouraged the hasty adoption of laws and regulations without proper policy development. However, Russia has also faced overwhelming international pressure to bring its treatment of copyright into conformity with Western norms, particularly as these are expressed in the TRIPs Agreement. It is clear that the pressure on Russia to internationalize its copyright standards has interfered with Russian legal developments in many ways and, indeed, has inhibited the development of Russian legal thinking on authorship, creativity, and innovation. In relation to moral rights, international pressure appears to be at the heart of Russia’s decision to scale back the standard of protection in its copyright law from the transitional measures of 1991. Russia has retained rights of authorship, attribution, disclosure, and even withdrawal; but the right of integrity, the most powerful international moral right and the most prominent author’s right in Russian history, is greatly reduced in scope. Moreover, the practical implications of this moral rights regime for authors have yet to be tested in cases before the Russian courts. It remains to be seen whether post-Soviet judges will bow to American pressure to restrict moral rights, or if they will choose, instead, to be guided by the jurisprudence of countries like France, which have historically favored moral rights and persist in maintaining their importance in spite of American disapproval.138 The Russian administration has apparently hoped that improvements in

Copyright and the breakdown of Communism 185 copyright law and enforcement will automatically bring technology into Russia by encouraging foreign investment – a process that has yet to prove, as in other developing countries, its practical significance for Russian growth.139 At the same time, the commercialism of international copyright law and its impact on Russian law increasingly threatens to translate into a profound neglect of domestic policy issues. In particular, Russian reform, particularly as embodied in the 2004 legislation, appears to be moving away from an appropriately balanced treatment of commercial and cultural interests in Russian law. The issue of Russian technological development through domestic entrepreneurship, on the one hand, and through the treatment of creative authors, on the other, receive inadequate treatment in the current law, especially as reflected in the reforms of 2004. The additional questions raised by the interaction of the technological and cultural spheres, an area of growing interest in the international community, remains completely unexplored – and in this, unfortunately, Russia is clearly part of a broader international trend to tighten copyright restrictions on works of new technology without examining the social impact of this policy. The reform of copyright in Russia is an ongoing process, and it remains to be seen whether a change of focus will become possible as both the reform effort and international expectations of Russian copyright law mature. Moral rights, and copyright law as a whole, continue to be an extremely dynamic area of reform in Russia. There is substantial scope for improving the protection of authors’ rights in future reform efforts. Those who are involved in ongoing revisions to moral rights in Russian copyright law should be able to draw some benefit from the extensive experience of the past decade in this area, both its successes and the occasional pitfalls into which attempts at reform have fallen. As other areas of Russian copyright law move towards closer conformity with the international standards set by the TRIPs Agreement, it is to be hoped that Russia will be able to pay closer attention to the situation of moral rights. This will depend on the initiative and determination of Russian reformers. They must confront the challenge of developing a concept of moral rights protection independently of the international copyright arena, whose current commercial focus, somewhat in contrast to the Berne Union, inhibits moral rights. The difficulty of accomplishing this philosophical shift in the orientation of Russian copyright reform should not be underestimated. The neglect suffered by moral rights in the international arena is not only a product of the subject-matter of these rights, which deal with personal and non-commercial concerns; it also reflects fears about the economic consequences of these “personal” rights.140 Reform that attempts to enlarge the scope of moral rights protection is almost certain to confront powerful opposition from copyright industries – international and, possibly, domestic141 – whose general perception is that they have much to lose from the legal protection of authors’ personal interests. Depending on the political power of these industries and government backing for them,

186 Copyright and the breakdown of Communism enforcement problems may come to plague the moral rights regime for Russian authors.142 Given current international trends, a deeper exploration of copyright policy in reforms to come will require a great deal of Russian reformers. Since the international system is itself in flux, Russia, a major power, could conceivably be called upon to provide leadership in this area. In view of its history, this process will be difficult to negotiate. On the legislative front, Russia must find the strength and sophistication to develop further its commitment to an audacious view of copyright that dares to differ from the perspective of the world’s one remaining superpower. On the political front, its mission may be rather different: the international community is unlikely to view Russian initiatives with favor, in copyright as in many other fields, unless the lion – or rather, the Bear – can show that the magic of the Velvet Revolutions has indeed transformed it into a lamb.

8

The future of post-Communist copyright A special role for moral rights

Authors’ rights in post-socialist countries remain caught in the tidal wave of social change initiated by the fall of the Berlin Wall in 1989. Copyright in Central and Eastern Europe is an intensely dynamic field. The currents and eddies of change affect different parts of the region differently – new member countries of the European Union are preoccupied with the issue of satisfying European copyright requirements, while Russia continues to struggle with the development of a coherent scheme for the recognition and enforcement of copyright. However, the essential themes of reform are common to all of these countries. Although aspects of their experience may help other countries engaged in reform to relate to their concerns – India in relation to computer programs, France or Canada in relation to film, or even the United States in relation to the public interest – there is still something unique about the peculiar difficulties confronting post-socialist countries with respect to their cultural law. The problem of bringing about harmony – or, at the very least, a degree of meaningful reconciliation – between post-socialist legal systems and the world is unusually complex. The distance separating post-socialist countries from international legal practices is considerable, and in some ways, as in the contentious area of “enforcement,” it has actually widened rather than narrowing as a result of the “transition.” In an effort to take possession of their own copyright law and claim it as a part of their distinctive legal and cultural heritage, there is growing interest among post-socialist countries in the possibility of bringing copyright, along with other aspects of intellectual property, into revised civil codes. In this movement, Russian reform is likely to exercise an important influence throughout the Central and Eastern European region – in a sense because of the role of Soviet and Russian codes as models over the past century, a heritage of mixed desirability, but also because of the concerted efforts of current Russian reformers to develop effective new structures. As William and Maryann Gashi-Butler observe, in their Introduction to Butler’s translation of Parts 1 and 2 of the Civil Code of the Russian Federation: Although the Russian Federation was not the first Independent State to replace the . . . “General Part” of its Civil Code (Estonia did so on

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The future of post-Communist copyright 28 June 1994), the text of the Civil Code of the Russian Federation has become the standpoint of reference, functioning veritably as a model code, for most of the other Independent States.1

In the development of the draft Civil Code provisions of copyright, a number of areas represent important areas of growth in Russian law. In particular, the draft includes a considerably expanded and modernized treatment of technological issues and, on the other end of the spectrum of intellectual property rights falling under the rubric of copyright law, moral rights. Moral rights in the draft provisions are an especially interesting group of rights. Russian reformers have persisted in granting to moral rights a central role in their proposals for a new Civil Code. How does the shape of moral rights in the Civil Code compare with the Soviet and Russian treatment of these rights of the past? Of equal importance, what do Russian reformers hope to accomplish through the current provisions? An examination of the proposals shows extensive treatment of moral rights in the Civil Code provisions, while their presence colors and enriches the overall understanding in Russia, not only of copyright, but of intellectual property rights more generally. Indeed, the development of moral rights in proposed Russian legislation suggests that these rights may have an important role to play in the post-socialist construction of a digital society. In the light of international confusion about the future of copyright, the international copyright community might look to these provisions with interest, and perhaps, find in them unexpected opportunities for its own development.

The civil code project The long-term goal of Russian reformers is to bring copyright and moral rights into the new Civil Code of the Russian Federation.2 It is interesting to note that the idea of incorporating copyright protection in post-socialist countries into Civil Code reform is unpopular with the American agencies contributing to development in the region.3 However, it is not clear whether they are opposed in principle to Civil Code protection, or to the idea of attempting to reform outdated Civil Code provisions.4 In any case, the study of Russian legal tradition shows that incorporating copyright into the Civil Code is a legitimate option for legal reform. Indeed, Russian copyright before the Revolution toyed with codification as part of the process of refinement, and this cycle has now reappeared, appropriately, in the present round of reform. The codification of Russian civil law is the responsibility of a Private Law Research Center, composed of a distinguished body of Russian legal scholars who are responsible directly to the office of Russian President, Vladimir Putin. The body includes long-established academic specialists on Soviet copyright law.5 It has also received some input on the copyright provisions

The future of post-Communist copyright 189 from foreign lawyers, although, for bureaucratic reasons, the Center’s access to leading international expertise in the specialized field of intellectual property rights may be limited. Indeed, obtaining international legal assistance for copyright reform is a complex matter. Assistance often assumes the form of financial aid that is administered by international bodies – for example, the World Bank, and foreign international development agencies in Western countries – which typically seem to be slow to react, and careless about awarding funds for appropriate and viable projects.6 The Private Law Research Center has also become involved in a power struggle of sorts with the Russian Patent and Trademark Agency, Rospatent. Rospatent is the direct successor to the Soviet patent agency, Gospatent. Its competence apparently extended to patents and trademarks only, in the first instance, and has now grown to include copyright, as well. Rospatent issues regulations on intellectual property matters, and it also administers a dispute-settlement mechanism for dealing with certain types of intellectual property disputes, the Patent Appeals Chamber and an appellate body, the Supreme Patent Chamber. Decisions of these specialist bodies may be appealed to the courts of general commercial jurisdiction, known as the arbitrazh courts.7 However, the status of legislation issued by Rospatent is not clear, particularly the question of whether and how Rospatent regulations will be included in the Civil Code reforms of intellectual property law. Numerous drafts of the proposed provisions on intellectual property in the Russian Civil Code are currently in circulation, and it is difficult to trace accurately the evolution of the proposals. The most recent complete draft of Civil Code provisions on intellectual property, officially circulated by the Russian Private Law Research Center in Moscow, is the Draft of November 30, 2001. The Draft circulates in both the original Russian and English translation; slight discrepancies between the two versions may reflect the ongoing process of updating the Russian provisions, or simply, the difficulty of translation.8 Since 2001, draft provisions on assorted aspects of intellectual property rights have appeared, but they do not reflect a comprehensive treatment of this area of the law.9 The most recent of these later attempts appears to be the Draft of April 23, 2001, which is noteworthy because it includes some particularly interesting provisions on moral rights.10 Currently, the Private Law Research Center has undertaken a new drafting project on intellectual property, but the draft provisions are not expected to be available until February 2006, at the earliest. In view of this situation, the discussion in this chapter takes as its starting point the 2001 Draft, which provides a clear illustration of the direction in which Russian reformers have been thinking. It remains an open question, however, whether the 2001 Draft is likely to guide the preparation of future drafts. From a strictly legal point of view, it would seem logical that future drafts will be closely reliant on the Draft of 2001, as it represents significant Russian and international expertise on intellectual property rights. From a political perspective, the decision to initiate a new drafting process may well reflect

190 The future of post-Communist copyright dissatisfaction with the ideological orientation of the Draft – a problem on which, unfortunately, Russian reformers are unlikely to be in a position to comment.11

Copyright and moral rights in the Draft Civil Code While it is virtually certain that the draft version of the proposed Civil Code provisions on intellectual property rights of November 30, 2001 will be subject to further changes before it is adopted as law – something that may happen at any point during the next several years – this document gives an indication of the probable form of future provisions on copyright and moral rights in Russia.12 Intellectual property rights are protected in Part Four, Division VII of the Draft Civil Code.13 The Division opens with Chapter 69, containing General Provisions relating to intellectual property rights. Chapter 70 deals specifically with copyright, and Chapter 71, with “Copyright Neighbouring Rights.” Interestingly, all three chapters also contain provisions on moral rights. Regarding moral rights, there can be little doubt that their protection in the Russian Civil Code will depart substantially from the formula adopted in the 1993 Copyright Act. The draft provisions of the new Civil Code differ significantly in structure and scope from all previous legislation. A degree of conceptual continuity between the Draft and the 1991 Fundamentals can be identified; but this sense of legislative continuity is clearly lacking between the Draft Civil Code and the Copyright Act of 1993. General provisions Chapter 69 seeks to elaborate the general philosophy of intellectual property rights in the Code, as well as principles to guide the interpretation of the specific provisions in subsequent chapters. It specifies the “exclusive” nature of the author’s economic rights, and the special nature of his or her moral rights.14 Moral rights are set out in Article 1228, which defines an author as, “[a] citizen . . . whose creative efforts have produced a result of intellectual activity (a work of science, literature or art, a result of performing activity, invention, a new plant or animal variety, and others).” Article 1228.2 provides for the protection of an author’s “personal non-property rights,” specifically including the “right of name.” All of the author’s personal rights, including the rights of authorship and name are inalienable and non-transferable, and the Code specifies that they cannot be waived by any means.15 These rights are protected in perpetuity – “without limit” – and, after the death of the author, they may be asserted by “any interested person,” on his or her behalf. This expression is interesting: how will the courts interpret it? Would a member of the general public qualify as an “interested person” in relation to moral rights issues? Alternatively, would it be restricted to people who had

The future of post-Communist copyright 191 personal or business dealings with the author, or would it extend to the artistic community in which he or she was involved? In any case, Article 1228.2 represents a substantial commitment to the protection of works in the public domain, their integrity and historical accuracy; it achieves this protection, however, by opening the door onto a greatly augmented possibility of moral rights disputes arising out of alterations to the works of deceased authors. It seems likely that this provision will not be viewed in an entirely positive light by publishers and other arts-industry groups, including, potentially, the Russian government. The Draft Civil Code also deals with several aspects of the problem of implementing and enforcing moral rights effectively. Article 1245, on the protection of authors’ rights and liability for their infringement, deals specifically with moral rights in subsection 8. Article 1245.8 provides that a number of specific remedies will be available for the “violation of [the] personal non-property rights of the author.” These include the cessation of infringing activities, compensation for “moral harm” – a new concept in post-Soviet civil law, though it is well known to the civil law of Western Europe16 – and, in general, an attempt to restore “the situation that existed prior to the violation of the right.” Among the remedies available is “publication of a court decision on the committed infringement,” a usual remedy against infringement in civilian jurisdictions. Publication of decisions has several implications for moral rights. It allows precedents to develop which not only have some legal value, but also, in this civil law system, even greater practical value to the injured parties who may wish to make a claim. The reformers who have prepared the Draft may also intend to emphasize the importance of publicizing infringement of authors’ rights, especially through the legal process, as a remedy for the secrecy and persecution previously endured by Russian intellectuals. Article 1228.1 provides that general courts will have jurisdiction over disputes involving authors’ rights, while Article 1229 clarifies that the Civil Code is the primary source of law governing moral rights. Both articles are important from a procedural point of view: they may help to clarify persistent doubts about applicable law. Interestingly, the economic rights of authors continue to be derived from a variety of legal sources. However, economic rights are subject to clarification in the Draft Civil Code in another sense. Article 1225 identifies the property right of authors as being “exclusive,” while Article 1227 provides that the exclusive right can be limited only by statute. Moreover, statutory limitations must be clear and precise, and they should not affect the “customary use” of works, or result in “unreasonabl[e] prejudice” to the right-holder. These provisions represent excellent safeguards for authors’ economic rights, as they would presumably apply to interference by government bodies, as well.17 The protection of moral rights would be greatly strengthened by similar measures. In contrast to the current Copyright Act, the draft Civil Code deals directly with the issue of moral rights infringement. Article 1245 is

192 The future of post-Communist copyright concerned with “Protection of Exclusive Rights and Liability for Their Infringement”; however, Article 1245.8 addresses the “violation of personal non-property rights of the author.” The remedies provided in subsection 8 include, but do not appear to be limited to, “recognition of the right, restoration of the situation that existed prior to the violation of the right, stopping effects that are infringing the right or creating the threat of its infringement, compensation for moral harm, [and] publication of a court decision on the committed infringement.” Indeed, there is a slight ambiguity in Article 1245 about the extent of exclusive rights, as a right-holder may claim the “recognition of the right – against a person who or which denies or otherwise refuses to recognize the right” – a provision that looks very much like a right of attribution, except that it is the right-holder, rather than the author, who is granted the right.18 Finally, it is worth noting that moral rights in “complex objects” are also recognized. Article 1239.3 provides for the recognition of rights of authorship, name, and inviolability in relation to multi-faceted works such as motion pictures and dramatic productions. However, the Draft does not specify who should be considered the author of the work in either of the sections where this information should logically fall, Article 1239, itself, or Article 1228 on authorship. This issue is partially addressed in Chapter 70 of the Code on copyright. Article 1250 on co-authorship provides that, in the case of films, the “director, author of scenario, and author of the [original] music [for the film]” may be deemed its co-authors.19 This issue should receive further clarification in relation to complex works which may give rise to competing claims in the absence of adequate legal measures for designating authorship. Copyright Chapter 70 of the Draft Civil Code, on copyright, reunites the economic and personal rights of the author in a single section. Under the heading “Copyright,” Article 1255 provides simply that “the author of a work shall have the following rights.” The Article lists a series of moral rights, and it provides for an “exclusive right,” which, by implication both in this section and within the broader context of the chapter, is clearly economic in nature. The “exclusive” right in the current Copyright Act also means the economic right of the author, though the status of the moral rights is in no way inferior to that of the economic rights. As in the earlier legislation, copyright is extended to oral works, but the provisions later specify that works of folklore shall not be protected by copyright.20 The duration of copyright is specified as the lifetime of the author and 70 years after his or her death.21 The Draft provisions provide the most detailed treatment to date of technological issues. These include explicit provision for the protection of databases and computer programs, in whatever language and form they are expressed, and on par with literary works.22 The Draft also provides for the

The future of post-Communist copyright 193 circumstances in which free reproduction of computer programs and databases is allowed, and even extends to the completion of computer programs. Alterations in the interest of improving the program’s functioning or correcting errors are permitted, as is copying for archiving or replacement purposes. The decompilation of programs is also tolerated, but only with a view to making possible, or improving, the functioning of software, and not “for the performance of any . . . act prejudicial to copyright.” The provision seems unlikely to find favor with the US software industry, in particular. Provisions on fair use, as in the Law on Copyright of 1993, are extensive, and they reflect closely the traditions of Western copyright laws. However, the Civil Code provisions present a contrast to Western law by providing for the possibility of compulsory licensing. The provision is not unusual by international standards, however, as it reflects similar provisions in developing countries, and it provides for courts, rather than the government, to exercise its judgment as to the conditions of the license.23 Article 1255 protects four moral rights: authorship, name, inviolability of the work, and right to publish an unpublished work. In addition to these, Article 1284 codifies the visual artist’s droit de suite, or right to a resale royalty. The Russian droit de suite shows its kinship to moral rights in its quality of inalienability and, with the exception of the possibility of a transfer to the author’s legal heirs, its general non-transferability for as long as copyright subsists.24 Unlike true moral rights, the resale royalty appears to be available only for the lifetime of the author.25 Although the Draft Civil Code has eliminated the right of withdrawal, the separate status and detailed treatment given to the right of publication nevertheless seem to strengthen it. At the same time, the restrictions on the integrity right which transform it into a “right of reputation” in the current Copyright Act have been completely lifted. The right of inviolability offers very strong protection for the integrity of creative works, especially during the lifetime of the author. The right is in keeping with Russian legislative tradition, and it exceeds the standard set by Article 6bis of the Berne Convention. At the same time, the provision could be internationally controversial, as it may allow foreign authors to claim moral rights protection in the Russian Federation that exceeds what they can expect in their home countries. While the principle of national treatment is generally regarded as a desirable characteristic of Berne, the application of the principle in relation to moral rights has tended to generate bad feeling, particularly in the United States, as illustrated by the Huston and Shostakovich cases.26 The four moral rights are given a detailed treatment in three separate articles; the right of authorship and the right of name, being especially closely related, are dealt with together in Article 1256. Article 1256 provides that the right of name includes the right to work under a pseudonym, or anonymously. If the author does not choose to identify him- or herself by name as the author of his or her works, the publisher is charged with protecting his or her interests as the author’s representative. In keeping with the general

194 The future of post-Communist copyright part of the intellectual property provisions, Article 1256 confirms that the rights of authorship and name are inalienable and non-transferable, even if the “exclusive,” economic right is transferred to another person. Article 1257 deals with the right of inviolability of the work: it is restored to all of the dimensions it officially enjoyed under pre-Soviet and Soviet copyright law. In effect, however, the right is actually split into two parts: an outstandingly strong right of inviolability for living authors, and a strong right of reputation after the author’s death. During the lifetime of the author, alterations, abridgments, editions, illustrations, forewords or afterwords, commentaries, and “[any] other explanations whatsoever” are permitted only with the consent of the author. However, after the author’s death, previously prohibited changes will be allowed, provided that the author has not expressly indicated that changes to the work should not be undertaken after his or her death, or the alterations do not somehow “distort the conception of the author . . . [or] derange the integrity of [the audience’s] perception of the work.” The provision goes beyond the current Copyright Act in allowing “any interested person” to assert the deceased author’s moral right of inviolability on his or her behalf – depending on what is meant by an “interested person,” a potentially valuable measure for the protection of cultural heritage, and for involving the public in culture.27 Interestingly, Article 1257.3 also makes it possible for authors to protect their inviolability of their work as one element of their “business reputation” under the appropriate provisions of the Civil Code. The purpose of the provision is probably to clarify that “reputation” will refer to the professional standing of the author, while “honour” and “dignity” may well apply to his or her personal reputation.28 The right of publication is set out in Article 1258. These detailed provisions seem to respond directly to the pressures faced by Soviet writers and dissidents in relation to publication. Article 1258.1 protects authors’ right to decide “independently” whether or not their work should be published. Article 1258.3 provides for the publication of posthumous works, which is permissible unless the author has expressly provided otherwise elsewhere in his or her writings – whether published or unpublished, public or private – or in his or her will. The term of moral rights protection is explicitly provided for in Article 1260: according to Article 1260.3, the rights of authorship, name, and integrity are protected perpetually, “without limit of time.”29 The treatment of works in the public domain is dealt with in Article 1287. As in the current Copyright Act, the use of public domain works must continue to preserve the author’s rights of authorship, name, and inviolability. According to Article 1287.4, the author’s moral rights in a work that has fallen into the public domain may be asserted by “any interested person.” Finally, according to Article 1252.3, it should be noted that translations, compilations, or derivative works must be created while respecting the rights of the original author.

The future of post-Communist copyright 195 Neighboring rights Like the 1993 Copyright Act, Chapter 71 of the Draft Civil Code on “copyright neighbouring rights,” consists of various provisions that create comprehensive rights for the makers of sound recordings, broadcasting and cable distribution agencies.30 In addition to providing standard protection for neighboring rights, it recognizes the moral rights of performers. Article 1294.1 protects the performer’s right of attribution – his or her name or pseudonym must be associated with the performance – as well as his or her right to protect the performance against “distortion” when it is recorded, reproduced, or broadcast. It is not clear whether the Russian provisions, like the WIPO Copyright Treaty, exclude protection for performers’ moral rights in audiovisual recordings: Article 1294.1 provides for a right of attribution in relation to “copies of recordings, . . . [and] wireless or cable broadcasting thereof”; the term “recording” seems to encompass audiovisual “recordings, as well.” However, Article 1294.2 provides that the exercise of performers’ rights, including the personal rights, is subject to the protection of the rights of the original composers of the works performed. Neighboring rights, belonging to performers, makers of sound recordings, or broadcast organizations, endure for 50 years. Patents Interestingly, the Draft Civil Code includes an unusual moral right in patents. In Chapter 72 on Patents Law, Article 1343 protects the “right of authorship” of plant or animal breeders. The article is entitled, “Author of New Plant or Animal Variety.” Subsection 1 provides for the person who, through his or her “creative activity,” has “created, bred or discovered a new plant or animal variety” to be recognized as its author. Subsection 2 allows that the author of the new variety can “determine . . . its denomination,” subject to statutory requirements, and the approval of the federal agency for the protection of new plant and animal varieties.

Continuing improvements to moral rights in Russia While moral rights in the Copyright Act of 1993 leave something to be desired in the protection of authors’ personal interests, the moral rights provisions of the Draft Civil Code set a significantly higher standard of protection. The proposed law is strongly oriented towards creative authorship and the protection of culture. Its provisions on moral rights reflect concerns about the status of authors and their work in a society that has long suffered the consequences of the political oppression of dissent. At the same time, it recognizes that moral rights have a contribution to make to the protection and preservation of cultural heritage: their importance is not restricted to the protection of individual authors and works. Russian reformers have

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made a laudable attempt to realize the cultural potential inherent in moral rights doctrine – for example, by making the protection of moral rights in public domain works the legal prerogative of every “interested person.” Further refinement of the proposed moral rights regime is possible at several levels. First, in purely legislative terms, the Draft Civil Code has abandoned certain provisions that were favorable to authors in the Copyright Act of 1993. For example, the 1993 Act defines the moral right of publication as a double-edged right: it not only allows authors to determine the circumstances in which their work will be disclosed, but it also allows them to withdraw their work from circulation. The right is elegantly framed, and one wonders why it has been removed from the draft provisions. Given the extensive protection offered to moral rights, it seems unlikely that the right of withdrawal would have been abandoned because of fears about the uncertainty, economic or otherwise, that it might create. Second, the idea of a domaine public payant appears to have been abandoned in the Draft Civil Code provisions. This kind of scheme for raising funds to support the cultural sphere is quite popular in both developed and developing jurisdictions.31 Has it been found to be unsuitable for the Russian Federation by reformers, and if so, why? A consideration of the Russian scheme for moral rights protection actually suggests that a domaine public payant scheme, which attempts to harness the cultural wealth of the past for the benefit of present authors, would be ideally suited to Russia’s situation: it would help today’s authors to navigate the uncertainties of Russian life after Communism, while also allowing some larger benefit to flow from the sufferings of the writers and artists of the past. A number of questions about the implementation and enforcement of authors’ moral rights also remained unanswered in the Draft Civil Code provisions. For example, Article 1228.1 of the Draft Civil Code provides that “a court” shall deal with copyright claims, including the assertion of moral rights. However, Russia’s court system is complex, and it is not immediately apparent which forum will be most appropriate for dealing with authors’ moral rights. Copyright matters are usually dealt with in the arbitrazh courts, the branch of the Russian judicial system concerned with copyright matters. It is true that moral rights have important commercial implications; nevertheless, their main purpose is personal and non-commercial, and commercial courts may therefore not be the best forum for adjudication. If not, who should make decisions on moral rights? Would a specialist tribunal dealing with intellectual property rights – such as the Supreme Patent Chamber, for example – be the ideal forum? Or would the Constitutional Court, which should be building expertise on the protection of individual rights, ultimately be more suited to dealing with authors’ personal interests? The role of government in copyright matters is also far from clear. Both the Copyright Act of 1993 and the Draft Civil Code make provision for the active involvement of government agencies in protecting authors’ moral rights. But how will it be possible to entrust the Russian government with

The future of post-Communist copyright 197 the protection of authors’ rights when it has been the main instrument of their oppression in the past? A similar question arises in relation to the role of writers’ or artists’ unions in Russia’s new copyright system. How can the collective administration of rights be made into a viable proposition in a country where the writers’ union was essentially a tool of government oppression, rather than an authentic mouthpiece for writers’ needs? Another area of concern is the question of how moral rights relate to technology. The Copyright Act and the Draft Civil Code both make provision for the copyright protection of computer programs and other technological works. In contrast to international instruments, these kinds of works are protected as “works of science,” a distinct category of works treated on par with the protection of “literature” and “art.”32 The expression does not seem analogous to the provision in the American Constitution on the promotion of “Science and useful Arts,” an archaism referring to works of knowledge, and one that extends equally to patents for inventions.33 At the same time, a broader range of works appears to be encompassed by the term than what is included in the “scientia” in Article 2 (1) of the Berne Convention. Since moral rights are available to works of literature and art, the structure of the provisions implies that they must be available for works of science as well.34 What are the implications of moral rights for works of science? When is the right of integrity in a computer program infringed? When can the author claim a right of attribution? For example, if an author produces a computer program and this work is used by insurance companies to collect personal data about health-related matters, can the author object that the use is against his principles, and therefore, violates his honor and his right to the integrity of his work? The application of moral rights raises serious concerns about the ability of information technology to develop, and to be used to its full potential. For this reason, India, with its dynamic information technology industry, specifically provides that moral rights will not be available in computer programs.35 At the same time, the separation of technology from moral responsibility is a dangerous social trend. Should moral rights support it? A number of difficult questions concerning moral rights also arise in relation to works of art whose creation has been made possible by technology. For example, in a computer-generated artwork, where the only creative activity of the author is to write the computer program, should moral rights be available? Indeed, who is the true “author” of the work, the programmer or the program? What happens in the case of a multimedia work that is composed of images, sound, and text from a variety of sources which have now been compiled and reworked in an innovative way through digital technology? For artists and creative people, the question of how digital technology will affect their creative potential lies at the very heart of the Information Age. Yet questions like these are not dealt with in the development of moral rights in current and ongoing Russian legislation.

198 The future of post-Communist copyright

Judicial interpretation of moral rights Russian courts will have an important role to play in clarifying the legislation on copyright and moral rights, and in determining how the law will be applied to the real problems of Russian authors and artists. In view of the unusual difficulties associated with moral rights in the international community, it is interesting to consider how Russian courts may respond to this particularly contentious, yet subtle, area in their rulings. In jurisdictions where moral rights are well established, such as France, judicial decision-making has traditionally been a driving force behind the development of the doctrine.36 However, Russian judges are in a uniquely difficult position. They are inexperienced in dealing with authors’ moral rights, and, for several reasons, they cannot look to cases from either the preSoviet or Soviet era. Current law departs substantially from pre-Soviet provisions; as for Soviet precedents, they are inadequate in terms of both quantity and quality. In dealing with the rare moral rights complaint, Soviet judges were not guided by sound legal principles; moreover, interpreting the spirit of the law in post-Soviet times calls for a new approach. In view of this situation, it seems likely that Russian courts will find themselves looking to the treatment of moral rights in other jurisdictions for guidance. French decisions, coming out of the heartland of moral rights doctrine and representing the most comprehensive body of case law in this area in the world, should certainly be of interest to the Russians. Among Western countries, France has probably shown the greatest commitment to the protection of authors’ moral rights. Since respect for authors’ rights should be a legal priority in post-Soviet Russia, French decisions may represent a helpful philosophical perspective on these rights. Russian judges may also want to expand their horizons by exploring the development of moral rights in more unusual environments. Notably, they may be curious to look at the treatment of moral rights in those developing jurisdictions where moral rights are highly regarded, as the policy concerns addressed by judges in developing countries may be familiar issues in Russia as well. A consideration of Article 15 of the Russian Copyright Act, on Moral Rights, shows that French law has exercised an important influence on the Russian legislator. Article 15 of the Russian law closely resembles the French Code de propriété intellectuelle et artistique, which itself incorporates the earlier provisions of the Law of March 11, 1957 on moral rights.37 Indeed, some of the safeguards in Article 15 appear to respond directly to interpretive issues confronted by the French. Accordingly, French decisions on different aspects of the author’s moral right may be highly relevant to the decision-making process of Russian judges. Russian law follows the French model in providing for the explicit recognition of the right of disclosure. In French law, the right of disclosure is an extremely strong right, an approach that should be favored in Russia as well. Since the right of disclosure was practically the only moral right that an

The future of post-Communist copyright 199 author could hope to exercise in Soviet times, the right has great significance for the independence of authors.38 The power of the French droit de divulgation is illustrated by the classic case of Whistler: a painting of an English noblewoman was completed by the artist, but he was dissatisfied with the final product, and preferred not to release it to Sir William Eden, the person who had commissioned it.39 His right to withhold the work from public release, in spite of the contract between himself and its commissioner, was upheld by the French court; the artist had to pay damages to Eden, but he was under no obligation to release the work. DaSilva observes, “The Whistler case reflects the French view that an artist is the absolute master of the decision to disclose his work, even when the right of disclosure would seem to impair contractual obligations.”40 Given this, rather absolutist, approach to the right of disclosure, it is hardly surprising that French law also protects an artist’s right to withdraw his or her work from circulation. The right is highly controversial: allowing an author to destroy his or her work after it has been released into public circulation could have serious consequences for the publisher and distributor of the work. For this reason, a number of practical limitations on the right of withdrawal have come to be accepted in French jurisprudence. Some of these have been incorporated into the legislation; for example, if an artist chooses to withdraw his or her work from circulation, he or she must reimburse the publisher. However, other limitations on the right have also arisen. For example, DaSilva argues that the right can apply only to works that have not yet been released to the public; the court supports his point of view in its discussion of the Vlaminck case. In that case, the painter removed his signature from a painting, on the grounds that it was a forgery. The court stated that, if the painting was a forgery, the painter had no right to deface someone else’s property; if it was not a forgery, “Vlaminck’s moral right did not permit him to exercise a right of withdrawal after having sold the canvas.”41 From a practical point of view, DaSilva’s line of reasoning is appealing. However, two criticisms must be raised. The first is to do with the structure of the French provisions. In fact, the French legislation recognizes two distinct aspects of the right of withdrawal: a droit de repentir, and a droit de retrait. One study distinguishes them on the basis that the right of repentir is a right to modify the work, whereas the right of retrait allows the author to “cease to pursue the exploitation of the work.”42 The second of these two rights, at least, seems to require logically that the work has been released to the public. Second, as DaSilva himself points out, “when we observe the extensive limitations on the two rights, we can only wonder what is left of them at all.”43 If we accept this limitation on the right, it would appear to be complementary to the right of disclosure, allowing an artist to escape from contractual obligations to release a work to the publisher, but having no further reach.44 If we consider the right of withdrawal in this light, an

200 The future of post-Communist copyright especially close relationship between disclosure and withdrawal becomes apparent. Indeed, the Whistler case could then be interpreted as much as a case on the right of withdrawal, as the right of disclosure. Identical provisions are included in the Russian legislation, raising the question of how Russian judges will interpret the provisions on the right of withdrawal in practice. It is especially interesting to note that, in Article 15.2 of the Russian law, the legislator seems to reject explicitly the limitation on the right suggested by Vlaminck. Article 15.2 provides that “[t]he author shall have the right to renounce the decision taken earlier to disclose the work.” Will Russian judges eventually succumb to French limitations on the right? Or must the right be considered so close to freedom of opinion, that, regardless of practical consequences, it must be upheld on principle? French case law on the integrity right is extensive, and, somewhat in contrast to the right of withdrawal, is likely to be of great interest to Russian judges. The integrity right in current Russian law is based on the formula in Article 6bis of the Berne Convention: it is considered a “right to the protection of the author’s reputation,” and is not open ended as in French law. In view of the rich history of the integrity right in Russian law, combined with the generally extensive Russian provisions on moral rights, this change seems peculiar. The reasons behind the restrictive Russian right may be related to pressure from the United States to limit the scope of moral rights. If this is in fact the case, judicial decision-making may provide a window of opportunity for judges to define this right in more comprehensive terms. Judges may seek to be guided by generous French principles in this area, while developing their own, perhaps subjective rather than objective, tests related to reputation.45 French cases in this area stand for a number of useful principles. The famous case of Bernard Buffet, where the painted panels of a refrigerator could not be separated and sold, established the idea of artistic unity.46 The Shostakovich case, although it was brought by the Soviet government against the anti-Soviet use of the music of four eminent composers, represents the idea that political manipulation of artistic works will amount to a violation of the integrity right. The importance of this principle in post-Soviet Russia cannot be emphasized too strongly, and, based on Article 15 of the Copyright Act, Russian judges today should be guided by the French approach, rather than the American one, in deciding similar issues.47 In the Huston case, descendants of the American director, John Huston, alleged that his moral right of integrity was infringed by the broadcast of a colorized version of his classic film, The Asphalt Jungle. The French Cour de cassation found in favor of the director’s moral right; interestingly, in the much earlier case of Shostakovich, the French court protected the moral right of the composers, although the same claim failed in the United States.48 The Huston case was a particularly important opportunity for French courts to affirm their commitment to the moral right of integrity, and, no doubt, to

The future of post-Communist copyright 201 stand firm against the globalization of copyright which has been threatening to overwhelm moral rights interests since the late 1980s. From the point of view of Russian jurists, the value of the case will lie, not only in its affirmation of the integrity right, but also in its explicit rejection of the Americanization of moral rights. The issue is an important one for Russia, as its ability to stand firm on moral rights, to some extent, will depend on justifying its position to the United States. As for the right of attribution, French courts generally will not allow any restriction of this right – not even if the author has attempted to waive it through a contractual agreement.49 For Russia, given the attempts of the Soviet government to falsify historical information, the right of attribution is especially important. Russian courts would therefore be well advised to follow the strong, French view of this right. While French jurisprudence is helpful in clarifying moral rights doctrine, the social context of French case law is very different from post-Soviet Russia. Notably, French moral rights are part of a stable economic and political life, and reflect well-established measures for the protection of culture. In contrast, Russia, in terms of both politics and economics, is a developing society. At the same time, its cultural heritage, due to the legacy of suppressed information and political oppression, is in a state of vulnerability and flux. How can authors’ moral rights adapt to this situation? It may be helpful for Russian judges to consider the treatment of moral rights in developing countries, which share some of these difficulties. Notably, Indian judges have developed probably the most extensive case law on moral rights in the developing world. What is interesting about this body of law is the judges’ open avowal of commitment to the protection of authorship and other cultural values – even, where necessary, against the state.50 The case of Amar Nath Sehgal, where a work by this leading Indian sculptor was purchased by the government and, later, destroyed through its negligence, is a case in point. The government was held to be under a duty to protect works of art and culture in its custody; a similar emphasis on government accountability would be entirely appropriate to Russia’s situation.51 Indian judges have also been prepared to protect authors against exploitation by commercial interests. This has even led them to extend the moral right of integrity to film adaptations – India’s commercial film industry is an economically and politically powerful force, and one that is also associated with criminality – in contrast to the relative reluctance of French courts to apply the right against adaptations.52 Since India is a common-law country, it is no doubt easier for judges to take the initiative in moral rights cases like these. However, the submissive judicial culture of the Soviet era is part of an oppressive legacy that must be overcome. Russian judges should therefore be encouraged by the example of judges in the common-law world, and accept the role that they may have to play in establishing the rule of law in post-Soviet society.

202 The future of post-Communist copyright At present, Russian judges have had few opportunities to explore the possibilities of either copyright or moral rights. In the past few years, there have been only a handful of cases on authors’ rights. Some of the cases represent astoundingly direct violations of authors’ rights, undoubtedly a throwback to the unavailability of legal, or other, relief to Soviet authors for the actions of their publishers. In these kinds of cases, it appears that Russian courts are now ready to provide authors with the necessary support. For example, a 1996 case involving the publication of a German language textbook by a collaboration of two Russian publishing houses generated infringements of both the author’s economic and moral rights. The textbook, originally published in 1978, was re-published in its entirety by the two publishers, in 27,000 copies. However, the name of the author and her foreword to the original publication were eliminated. Commenting on the case, Russian lawyer I. Tyulubeva observes, It is absolutely clear that the publishing houses have not violated the author’s rights out of negligence or ignorance. Their direct intention to do so is obvious from their actions; in fact, they had [actually] reprinted the book earlier, bearing the name of the author. These enterprising publishers decided “to bypass” the author, and they found the simplest way of doing so – the exclusion of Arzumanova’s authorship from the book. If there is no author, there is no problem: it is not necessary to enter into contracts, to specify conditions and terms for the use of the work, or to pay any compensation.53 Tyulubeva’s phrase echoes the Stalinist dictum – “No author, no problem.” The courts hearing the case, at first instance and on appeal, both supported the justice of the author’s position.54 The moral rights issues in this, and other, cases illuminate some of the unique problems of culture in the post-socialist context. One interesting and well-publicized case concerning the public domain in Russia was brought by the Tretyakovsky Art Gallery in Moscow. A number of artworks in the Gallery were reproduced by a Moscow publishing house that had the idea of including reproductions of well-known artworks in its “Library of Poetry” series. The paintings were celebrated Russian works, including, for example, Altman’s famous portrait of the Petersburg poetess, Anna Akhmatova.55 The publishing house had verified that copyright in the original works of art had expired, and accordingly, it believed that there was no restriction on reproduction of these images. As it happened, however, the Gallery was closely vigilant of initiatives like this one, and decided to explore the possibility of recourse to the courts to vindicate its own interest, as a public institution, in these works. In doing so, one approach adopted by the Gallery was to rely upon the moral rights set out in the Russian Copyright Act. The Act provides for the moral rights of the author to be protected indefinitely after his or her death. In the case where the author’s successors cannot or do not

The future of post-Communist copyright 203 undertake to protect his or her moral rights, the moral rights eventually become the responsibility of “an agency of the Russian Federation especially empowered to do so.”56 However, the provision made in the legislation has not been matched by corresponding administrative changes: to date, it appears that no such agency exists. The Gallery therefore argued, quite creatively, that it was essentially an agency that could be “empowered” by the government to act in the interest of authors’ moral rights, and that it could accordingly assert them on behalf of Altman and his descendants. Based on these arguments, the Tretyakovsky Gallery argued that it was a rightful caretaker of the deceased artists’ moral rights. In doing so, it relied, not only on the provisions of the law on moral rights per se, but additionally on Article 21 on the use of works “permanently located in a public place.” The Article specifies that the author’s consent and payment of the royalty may be required if the use of the work is for commercial purposes. Clearly, the difficulty in the case lies in the Gallery’s assumption of the right to assert moral rights on behalf of the artists. It is worth noting that, under the Draft Civil Code provisions, no such problem would arise, as, under Article 1228.2, “any interested person” can undertake a moral rights action – a threshold that a prestigious public body like the Tretyakovsky Gallery should easily be able to meet.57 However, it is possible to sympathize with this argument: Articles 27 and 28 of the Copyright Act provide for the exercise of moral rights in works in the public domain by either “[the author’s] heirs or by an agency of the Russian Federation especially empowered to do so and which shall likewise ensure such protection in the absence of heirs or where the heirs’ copyright has lapsed,” while the author’s moral rights in “works that have fallen into the public domain . . . shall be respected.” To date, no such specialist agency for the assertion of moral rights exists in the Russian Federation.58 The claim of the Gallery makes reference to the larger question of the public interest in cultural heritage, and specifically, the nature of public property in works of art and culture. The idea has a long pedigree in Russian law – for example, Tolstoy wanted to make all of his writings, both published and unpublished, public property after his death59 – but it met with considerable confusion throughout the Soviet era, from the nationalization decrees of the Bolshevik period, to the provisions on compulsory purchase in Soviet copyright legislation of the 1960s.

Conclusion: the case for an expansive model of moral rights The trend towards greater protection of moral rights in Russia, as illustrated by the Draft Civil Code provisions of 2001, should be viewed in a strongly positive light. It is to be hoped that an expansive approach to the protection of moral rights will make a strong contribution to respect for creative expression, and freedoms of thought and speech in Russia. Moral rights can

204 The future of post-Communist copyright contribute to creative freedom at both the doctrinal and practical levels. While the doctrine reflects a vision of the special nature and value of creative expression, it should also work in combination with other legal and cultural developments to create an environment where intellectual freedom can be enjoyed. Freedom of thought and conscience, freedom of information, and a free press are all related to the values underlying the doctrine of moral rights. Developing the principles of rule of law, government accountability, and judicial independence are part of the same process of cultivating a legal culture that cherishes intellectual liberty. All of these discoveries about moral rights point to a very close relationship between the moral right of the author and human rights. Indeed, the Soviet and post-Soviet experience of moral rights in Russia suggests that these two kinds of law, which are ordinarily considered to differ widely from one another, actually share fundamental values. The Russian experience suggests that the protection of authors’ moral rights is a human rights issue. However, the value of a human rights model of authors’ moral rights is not restricted to Russia and other post-socialist countries. Rather, it may actually provide the key to resolving the long-standing international conflict and controversy surrounding this complex aspect of copyright law, by offering a means of modernizing it to meet the legal and cultural challenges of the Digital Age.

9

Copyright and human rights The post-Communist experience and a new international model

The end of Communist rule brought the hope of freedom to a new generation of Russian writers and artists. The Soviet era had been characterized by the oppression of culture and creativity, and indeed, the earlier rule of the Tsar had also led to clashes between official censorship and creative expression.1 In a sense, post-Communist Russia confronted the possibility of creative expression that was free from political constraints for the first time in its history. This watershed moment also represented an opportunity to reassess the law of authors’ rights in an environment of political freedom. A crucial difference between the Tsar’s treatment of writers and the Communist approach was ideology. The power of the Communists was based on the propagation of the official ideology of the state throughout Soviet society. For this reason, creative expression, with its power to sway minds, represented a source of political power, one that the Communists would have liked to harness for their benefit. At the same time, the potential for ideological diversity arising out of creativity represented a fundamental challenge to the Soviet emphasis on homogeneity. In its war on creative freedom, the Soviet government had many weapons in its arsenal, including detention, imprisonment, violence, and incarceration in psychiatric hospitals.2 During the 1960s, the exploitation of law and legality became one of these techniques of repression. Writers, in particular, fell victim to criminal prosecution for their literary activities. Although a number of prosecutions were undertaken, the most notorious of these cases was certainly the 1966 trial of Andrei Siniavski and Yuli Daniel. In the Siniavski–Daniel affair, the Soviet government, for the first time, made the literary creations of the authors the basis for criminal charges alleging that the writers were involved in anti-Soviet activities. Soviet law included a regime for the protection of authors’ rights. However, copyright law was complicit in the repressive policies of the state. A consideration of the provisions on copyright and moral rights in the 1961 Soviet Fundamentals of Civil Legislation, reproduced in the Russian Civil Code of 1964, shows how the law was drafted to reflect the requirements of official censorship. Censorship had a direct impact on authors’ moral rights, although it also had implications for their economic rights – for example,

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in the provisions on compulsory purchase of copyright by the state.3 At the same time, to the extent that authors’ rights were recognized in Soviet copyright legislation, they could not necessarily be enforced by the courts. Only if their work was politically correct could authors hope to protect it from misuse by publishers, performers, or translators, through moral rights. A work that transgressed official ideology would not give rise to legally enforceable rights. Given that Soviet copyright law claimed to protect a number of moral interests – notably, the rights of disclosure, attribution, and integrity – this situation created a permanent incongruity between the letter of the law and its implementation.4 The uncertainty surrounding their rights led to great tension and instability for Soviet authors. Not surprisingly, the restrictive environment of Soviet publishing inhibited the circulation of culture and knowledge. When Communist rule ended, Russian society was flooded with works of literature from the Soviet era, such as Boris Pasternak’s Dr Zhivago, certain poems of Anna Akhmatova, and Solzhenitsyn’s Gulag Archipelago – works that, although they were several decades old, had never before been seen by the majority of the Russian public.5 The repressive policies of the state also represented a profound threat to the creative process: the government was intent on imposing conformity of thought, and its policies aimed at the destruction of freedom of the imagination. The fact that Soviet writers and artists continued to create throughout the 70-year period of Communist rule, in spite of this situation, is a testament to their determination. No doubt, the yearning for freedom, what poet Yevgeny Yevtushenko calls the Russian nostalgie for freedom, inspired their work.6 Ironically, though perhaps not surprisingly, post-Soviet liberalization initially seems to have led to a loss of direction in the arts. Yevtushenko observes that Russians “don’t [yet] know what to do with freedom.” It will be interesting to see what form the Russian nostalgie will assume in postSoviet times, and how the poets of a newly democratic generation will give voice to this timeless Russian longing. After the collapse of Communism, the new leadership was conscious of a need to re-examine the situation of writers and artists, and to attempt to make amends for the repression of the past. One important step forward was the rehabilitation of Soviet-era authors – given the nature of Soviet oppression, rehabilitation had to address personal as well as professional reputations, authors as well as their works. This has been accomplished by decree of the government of the Russian Federation and, where appropriate, by the Supreme Court of the Russian Federation. The need to correct the past repression of authors also influenced the redrafting of Russia’s law on authors’ rights, by encouraging the adoption of improved standards of protection. The provisions of the 1991 Fundamentals of Civil Legislation on copyright and moral rights included greatly improved protection for the author’s copyright as an exclusive right, expanding both the range of rights that could be protected and the type of protection available within each right.

Copyright and human rights 207 Among the major trends established by post-Communist reform, a serious commitment to the moral right of the author was a development of great political and legal significance. However, the trend toward greater protection for moral rights did not continue in the years following the collapse of the Soviet Union. Rather, the development of authors’ rights was inhibited by international pressure to conform to a more limited approach. In particular, the United States was concerned that Russian copyright reform should reflect the commercial and trade orientation of international copyright law in the 1990s. The influence of American advisors is clearly apparent in the Russian Copyright Act of 1993, which, among other shifts, significantly scaled back the protection of authors’ moral rights from the status they enjoyed in the 1991 Fundamentals.7 In doing so, Russian copyright law has lost its earlier focus on the implications of its Communist legacy; what is of equal importance is that the new law does not reflect coherent policy development for Russia’s future.8 The changes to moral rights proposed in the Draft Civil Code of November 2001 represent another change of direction – an attempt to return to more comprehensive protection for moral rights in line with the 1991 Fundamentals. It is apparent that the Civil Code provisions – years in the making, and widely subject of international critiques – represent the most serious attempt at policy development of any piece of post-Communist copyright legislation in Russia to date. Not only do they grant substantially greater protection to moral rights than the current law, but the provisions are also reasonably well adapted to Russia’s “transitional” problem: they attempt to address both the repression of creative authorship in the past, and the need to encourage creativity in the present and future. However, the Civil Code provisions have yet to be adopted as law: they must overcome political hurdles, both international and domestic, before they can be accepted, whether in their current form or in a revised version.9 If Civil Code measures on copyright and moral rights are ultimately enacted, they potentially represent a new and more favorable point of departure for the future development of the rights of Russian authors. Notwithstanding its positive approach to moral rights, it is interesting to consider how the framework offered by the Draft Civil Code provisions can be further refined. Some points of criticism arise in relation to specific measures, such as the decision to eliminate the author’s moral right of withdrawal, and to abandon the domaine public payant scheme set out in the 1993 Copyright Act.10 At a more general level, two interesting and important questions arise. The first is primarily a procedural issue: the Draft Civil Code does not make clear and adequate provision for the implementation and enforcement of authors’ moral rights. The second problem is a conceptual one, though it may provide the key to resolving lack of procedural clarity: where do moral rights fit in the overall hierarchy of Russian law? According to the new revisions, separate copyright legislation would no longer exist; unlike the current situation of the 1964 RSFSR Civil Code, the Copyright Act would presumably

208 Copyright and human rights be repealed and replaced, and moral rights would be part of the revised Civil Code. But how, if at all, would moral rights relate to freedoms of thought and expression in the new Russian Constitution?11 How are Russian courts supposed to interpret moral rights against practices of censorship, whether they arise in the public or in the private sector?12 Is there some way of expressing in legislation the connection between authors’ moral rights and their rights of expression, as revealed by the Communist experience? Of course, lack of clarity in these areas is not unique to Russia. On the contrary, many countries have moral rights provisions in their copyright laws without specifying a constitutional dimension, or clarifying their relationship with censorship issues. Interestingly, two countries that directly address the relationship between moral rights and constitutional rights in their legislation, the United States and Germany, have arrived at opposing interpretations of them. In the United States, the Constitution specifies that the purpose of copyright is to improve public access to knowledge; moral rights are therefore widely considered by American experts to contradict the policy behind copyright law identified in the Constitution.13 In contrast, Germany includes protection for free creative expression in its Constitution, and this is in keeping with its traditionally respectful attitude towards moral rights.14 It is important to note that the question of how moral rights relate to fundamental freedoms is quite different in the post-Soviet era from what it was after World War II, when the German Constitution was adopted, or in the historically remote time of the American Constitution.15 The post-Soviet dimensions of the problem resemble the post-war era, in the sense that both periods of law reform followed experiences of totalitarianism and overwhelming human rights abuses, and were therefore colored by these realities. However, an additional dimension in post-Soviet legislative reform is the ongoing revolution in communications technology, which has radically altered the conditions of creative expression throughout the world. Indeed, it is likely that most of the implications of the Digital Revolution for culture and the arts have not yet become clear. It is apparent only that technology will have both a direct and an indirect effect on culture, through its impact on the creative process and on the forms of artistic expression, and in its role in the globalization of trade and economic growth. The difficulties of copyright reform in post-Communist Russia suggest that there is a need for a new approach, and, what is equally important, that the international community must find a way of accepting different ways of looking at moral rights. The experience of Russian authors and artists in the Soviet period shows that the protection of authors’ rights in Russian law is a serious human rights issue – a reality that should not be ignored because authors’ rights traditionally fall within the ambit of private, rather than public, law. In the past, Russian authors were inadequately protected against state censorship; since state control over expression extended into the private

Copyright and human rights 209 sphere, copyright law had little practical significance for authors’ rights. In the present and future, Russian authors confront many kinds of human rights-related problems. The Russian government continues to deal with culture, knowledge, and information with a restrictive attitude, rather than one of openness, and creative authors need to be protected against this situation. As time goes on, it is likely that authorship will be vulnerable to other kinds of problems – the domination of Russian society by large enterprises and organized crime, and the growing international commercialization of culture that attempts to feed the arts, entertainment, and knowledge industries on a global scale. The question confronting Russian reformers is, therefore, how to develop a legislative model of copyright that will accomplish two related goals. Copyright law must first seek to defend authors from public and private repression; it must also further the general goal of protecting culture from the negative consequences of international commercialization, on the one hand, and domestic impoverishment, on the other.16 In the light of these concerns, this chapter proposes a “new” conceptual model of copyright – one that is based on the connection between authors’ rights and human rights. The value of a human rights model lies in its ability to change traditional perceptions of authors’ rights. Rather than seeing these rights as a matter of commercial law, a human rights perspective will allow us to consider the special vulnerability of authors to restrictions on free thought and expression, and, consequently, their greater need for protection in this area. It will also help to clarify the special needs of authors in the new, global culture. In practical terms, a human rights model can provide the basis for extending rights of authorship into the public sphere, and affording them protection against state exploitation and censorship. At the same time, a human rights analysis can help to clarify the purpose of moral rights protection, thereby leading to greater legislative and structural clarity in drafting these rights, and improved procedural effectiveness in their implementation.17 The interest of a human rights model of moral rights is not restricted to Russia, or, more generally, to countries emerging from periods of political oppression. Rather, a human rights approach can make an important contribution to the understanding of copyright in the international arena. In particular, human rights may provide an escape from stagnation for moral rights. In many ways, moral rights appear to have reached an international stalemate. They are excluded from the WTO; harmonization efforts in Europe and at WIPO have not clarified the conceptual bases for an international moral right. The common-law countries, though many of them have now adopted moral rights legislation, remain extremely reluctant to implement strong moral rights regimes: they have uniformly preferred a limited legislative framework.18 Moral rights in common-law countries are further restricted by conventions governing authors’ contracts, and by restrictive judicial interpretation.19 All of these factors suggest that a new model of copyright – one that emphasizes the cultural and historic function

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of moral rights – may be of value to the international community, particularly in the context of cultural globalization. If copyright is to be protected as part of a human rights regime, what are the legal and conceptual bases for such a model? This chapter examines a number of policy arguments for linking authors’ moral rights with human rights, and the legal framework within which this connection can be attempted.

Intellectual property and human rights It is possible to identify a number of intuitive connections between intellectual property rights and human rights. The criminal prosecution of writers and artists by the Soviet regime for their creative activities, including the watershed trial of Siniavski and Daniel, suggests one such intuitive link, between the moral rights of authors and their right to freedom of expression. The intuitive relationship between these two technically divergent areas can provide a basis for bridging the conceptual distance between them, and, ultimately, developing an effective legal framework for moral rights that reflects this understanding. The connections between intellectual property and human rights may manifest themselves in either a direct or an indirect relationship. The two may be directly connected, in the sense that intellectual property rights and human rights offer themselves as two different kinds of language and analytical framework for describing the same concept. This situation arises in relation to the right of publication, which can be seen as an issue of freedom of expression, on the one hand, and as a moral right of the author, on the other. An indirect relationship arises where a single situation may lead simultaneously to both human rights and intellectual property concerns. An example that has been much in the public eye in recent times is the issue of patents for medications in developing countries, for example, in relation to the spread of AIDS. Many activists have become concerned that the high price of patented medications has effectively led to the denial of treatment for third-world patients suffering from this disease, and indeed, their efforts have led to a reduction in the cost of AIDS drugs in the developing world.20 This is clearly a human rights issue. On the other hand, the rights of pharmaceutical companies to recover their investment in the development of drugs is an intellectual property issue that clashes with human rights. Another problem involving medical knowledge arises in relation to the appropriation of the traditional knowledge of aboriginal peoples to create patented drugs. The use of their knowledge, generally without the consent of the people involved, is perceived to be a violation of their human rights.21 Here, however, the prospect of these groups being able to use intellectual property rights to protect their own knowledge is one that supports their human rights interests.22

Copyright and human rights 211 If we consider copyright essentially as an author’s right, the direct connection between copyright law and human rights becomes apparent. In practice, the role of copyright in protecting the individual rights of authors may be obscured by the fact that copyright law does not focus exclusively on the protection of the author. Rather, copyright law protects the “owner” of the copyright in a work – the person who has acquired the right to reproduce and disseminate the work by purchasing it from the author. The owner of copyright may or may not be the same person as the author; in practice, it is most often the publisher. The idea of copyright ownership is fundamentally built into the common-law model of copyright law – originating in England and prevailing in all former British colonies, including the United States – although rights of ownership are less prominent in the authorcentered copyright legislation of Continental Europe.23 However, international copyright law, especially in the TRIPs Agreement, is based on the protection of the copyright-owner, who occupies a position that is at least as important as that of the author.24 The tension between “authors” and “owners” in copyright law may lead to the ironic situation where authors actually become the victims of copyright legislation that is supposed to protect their rights. Indeed, an awareness of the potentially conflicting interests of author and publisher informed Russian law from the earliest times. It was a feature of Russia’s first modern copyright legislation, the Copyright Act of 1911, and this principle was retained in the primary legislation on copyright under the Bolsheviks, the Law of 1928.25 According to the Russian provisions, authors’ right to the integrity of their work was intended to protect them from the activities of their publisher. The range of activities prohibited by the right was therefore very broad, but it could only be asserted against the publisher.26 The protection of authors may arouse hostility because of the apparent restriction it imposes on the right of the public to use knowledge and information freely. Indeed, the idea of balancing copyright privileges against rights of use and access is fundamental to American copyright law: the US Constitution provides that the policy objective supporting copyright protection is to “promote the Progress of Science and useful Arts.”27 On this view, many human rights interests are said to weigh in the balance against unduly high copyright standards, including the freedom of speech and expression of individual members of the public, as well as the general right of the public to have access to information. These arguments should be treated with care: they may be based on a mistaken understanding of what is signified in practice by free expression and access to information. From a legal point of view, neither aspect of freedom can be absolute; nor can the rights of authors. However, in relation to creative work, it is also important to recognize that the public is not dealing with expression and information in abstract or generic terms: rather, the work emanates from a particular individual, in a particular form, and it represents the culmination of an individual, creative process. The work is

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specifically a product of the labor and, in the case of artworks, the personality of its author. It could not have been produced by anyone else. Without the author, it would remain completely unrealized, and unavailable to society, perhaps representing a significant loss to culture. Protection of the author’s right in the work does restrict public access to information; but this right of access represents the interest of the public in an intangible product whose existence is utterly dependent on the individual circumstances of its author. The idea that copyright restricts free expression most likely reflects a certain lack of clarity about the role of creative authorship in society and, in particular, the social value of creative works. Cultural trends in the Western world – as contemporary artistic expression toys with “commodification, provocation, charlatanry, fickleness, and vulgarity”28 – only intensify this confusion. Interestingly, in the American example, arguments in favor of free expression have helped to justify US caution in relation to the protection of authors’ moral rights, but they appear to have had little impact on the economic aspects of copyright that protect the intellectual property of American copyright industries.29 Somewhat in contrast to the difficulty of recognizing the human rights interests underlying certain aspects of intellectual property rights, the indirect impact of intellectual property rights on humanitarian issues has come to be widely acknowledged. These areas of concern often involve nontraditional human rights – rights such as literacy, education, and access to medication – known in international human rights parlance as “second-” or “third-generation” rights.30 For example, high standards of copyright protection may restrict the ability of poor countries to provide their populations with access to foreign books: very often they do not have the resources and foreign currency to pay for them. At the same time, restrictions on translation may restrict access to knowledge among the populations of lessdeveloped jurisdictions. Considerations like these have traditionally been behind the principle of freedom of translation favored in Russian copyright law. Indeed, Russia did not grant rights to translators of foreign works until Soviet accession to the Universal Copyright Convention in 1973. From the intellectual property lawyer’s point of view, a number of interesting points can be noted about the intersection of intellectual property rights with human rights. First, the overlap is extensive: intellectual property issues penetrate to the furthest depth of our evolving understanding of human rights. Second, there is a danger that intellectual property rights may actually become the means by which human rights violations occur. Finally, when intellectual property rights become implicated in human rights problems, the entanglement of intellectual property issues with questions of knowledge and culture, as a legal matter, can become quite complex. For example, appropriating indigenous knowledge to make patented pharmaceuticals is not only an issue involving “scientific” knowledge; knowledge about medicinal plants may be intimately linked to a

Copyright and human rights 213 traditional way of life, and patenting it may amount to cultural appropriation, as well as violating the community’s right of access to its own culture. For non-Western peoples, “scientific” knowledge may equally be considered a cultural issue, although the law of patents is not normally considered to have anything much to do with culture. In relation to moral rights, their potential impact on cultural diversity and the human rights interests involved in culture is a subtle issue, but it merits attention. Moral rights are traditionally associated with an individualistic view of authorship, derived from European Romanticism of the nineteenth century. How does this model relate to non-Western cultures? Is it an obstacle to the universal development of moral rights protection for authors? A brief consideration of some approaches to authors’ personal interests in non-Western cultures shows how moral rights can be problematic. Certain cultures do not emphasize the identification of the artist with his or her work, preferring, instead, to value artworks for their own sake, or for their social significance. In ancient India, a high value was apparently placed on the artist’s decision to remain anonymous – a tradition that also has political implications.31 A recent case involving a work of art by an aboriginal Australian artist illustrates the kind of dilemma that may arise between individual and community interests in another context. In Yumbulul v. Reserve Bank of Australia,32 the artist sued for the infringement of his copyright in an Australian court; among the problems that he faced was criticism from his community for allowing the sacred knowledge of the clan to be exposed in an inappropriate context. From the clan’s point of view, the portrayal of Yumbulul’s artwork on a commemorative banknote issued by the Australian government was more an issue of community authorship, than of Yumbulul’s personal right in the work as its creator.33 In socialist society, there was a potential tension between individual and social interests; indeed, the state justified its extensive interference with individual rights on the basis that it was acting in the collective interest of society.34 However, Soviet Russia also included a number of traditional cultures that should be distinguished from the European-influenced culture of urban Russia – its own traditional folklore, as well as the diverse cultures of minorities, now represented in the CIS and in the countries of Eastern Europe, including Roma peoples and others. In many ways, these diverse cultures can be distinguished from Western cultural norms. Even the “European” pattern of urban Russia was superimposed onto a deeper, underlying culture. This point is famously illustrated by a scene from Tolstoy’s War and Peace, where Natasha Rostova, the aristocratic heroine, shows her untaught ability to dance to traditional Russian folk-music, a part of Russian culture that she has inexplicably absorbed from her environment.35 Clearly, moral rights in a non-Western context must be reconciled with highly complex social and cultural systems. The establishment of a universal standard of moral rights protection that will apply to diverse countries and

214 Copyright and human rights cultures may appear to threaten cultural interests with the very homogeneity that these rights should seek to avoid. Developing the intuitive link between the protection of authors’ moral rights and human rights may entail both helpful and harmful consequences for cultural diversity, and the legal treatment of moral rights should reflect an adequate awareness of both the possibilities and the dangers of the doctrine.

Copyright in international human rights law The intuitive relationship between intellectual property rights and human rights is recognized in international human rights law. The International Bill of Rights, constituted by the Universal Declaration of Human Rights of 1948, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights of 1976, forms the core of international human rights law, and includes a number of intellectual interests.36 International human rights law provided a valuable support for the Soviet dissident movement in the late 1960s. For example, they made Article 19 of the Declaration – which the Soviet Union had ratified – on freedom of expression, opinion, ideas, and information, their manifesto.37 Indeed, the dissident movement came to be known, quite simply, as the human rights movement, on the basis of its primary strategy of “urging the Soviet government to observe its own constitution.”38 Interestingly, the treatment of intellectual property in human rights instruments confers a special importance on moral rights. Provisions relating to the moral rights of authors are dealt with in two out of the three documents, the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights.39 In the Universal Declaration of Human Rights, Article 27 is concerned with intellectual property, although the interests it protects are not identified as intellectual property rights per se. It is perhaps most accurate to refer to them simply as “creative rights.” Article 27(2) provides that an individual has “the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author [my italics].”40 Article 27(1) provides for a right “freely to participate in the cultural life of the community,” including a right “to enjoy the arts.” The creative rights in the Declaration are restated in the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 15 of the ICESCR deals with rights relating to culture, creative expression, and intellectual property. Like the Declaration, Article 15.1 of the ICESCR provides for a right “to take part in cultural life,” as well as a right “to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which [one] is the author.” However, the ICESCR goes on to impose a number of duties on states party to the Covenant. Article 15.2 provides that measures which are “necessary for the conservation, the development and the diffusion of science and culture”

Copyright and human rights 215 should be undertaken in order to ensure the protection of the rights in Article 15.1. Moreover, Article 15.3 imposes an obligation on member states to “undertake to respect the freedom indispensable for scientific research and creative activity.” The treatment of intellectual rights in these foundational documents of international human rights law, including the moral rights of authors, raises some interesting questions. In the first instance, both the Declaration and the Covenant protect the moral right of the author as an individual right. However, in both instruments, the individual right of the author is protected in conjunction with a right of the public, or of the community, in art and culture: the two rights are developed as subsections of a single article. In the Declaration, the right of the public in culture is actually framed as a right of the individual to “enjoy” and “share in” the fruits of intellectual endeavor, and, in relation to creative expression, it may be understood primarily as a right of access to creative work. Article 15.1 of the Covenant takes the same approach; however, in Article 15.2 of the Covenant, the scope of the right of access is somewhat expanded by introducing the idea of measures for the “conservation, development and diffusion” of culture as part of the creative right. Article 15.3 introduces a completely new connotation to creative rights, by requiring states to respect political freedom as a required pre-condition for creative expression. The question of protection versus access to intellectual works in the human rights documents seems like a restatement of the classic intellectual property problem of balancing the potentially contradictory principles of creation and use – what Drahos expresses as, “the tension between rules that protect the creators of information and those that ensure the use and diffusion of information.”41 However, the idea of public rights in culture is something that is not usually included within the ambit of intellectual property law. Rather, “conservation, development and diffusion” – in other words, the preservation of cultural heritage, the development of cultural policy, and the dissemination of culture – are primarily dealt with through cultural property law, and related kinds of heritage regulation. The idea of freedom from state oppression is also not a typical component of intellectual property law; rather, international intellectual property law accepts the right of states to curtail intellectual property rights for political reasons, such as the maintenance of “public order” and “morality.” Article 17 of the Berne Convention is the classic example: it provides that “[t]he provisions of this Convention cannot in any way affect the right of the Government of each country of the Union to permit, to control, or to prohibit . . . the circulation, presentation, or exhibition of any work.” Ricketson points out that the purpose of the provision is to accommodate state censorship.42 Remarkably, the provision has stood unchanged since the adoption of the Convention in 1886.43 The additional elements of intellectual property rights as they are framed in the human rights instruments demonstrate that, from a human rights

216 Copyright and human rights perspective, the protection of authors’ interests will involve much more than the relatively narrow issue of balancing the rights of authors and users to exploit works. Even within this particular issue, the approach of intellectual property law is traditionally quite restrictive. Copyright law deals largely with the use of works for commercial purposes; it also includes some provisions confronting the issue of reuse for creative, intellectual or personal purposes, but these are typically framed as exceptions to copyright protection.44 Indeed, in common-law jurisdictions, it may often be left to judges to clarify the exceptions to copyright law, with the consequence that the policies behind them may tend to remain unclear.45 Copyright laws generally do not transcend this threshold determination, to develop a broader philosophy surrounding access to, and the use of, creative works.46 It is interesting to note that the hybrid quality of the rights and interests involved in creative authorship is nearly as problematic for international human rights law as it is for traditional views of copyright law. International human rights law has developed in stages, with early acceptance for “civil and political” rights, known as “first-generation” rights, standing in contrast to the much slower and more problematic development of economic and social rights, known as “second-” and “third-generation” rights.47 The development of community-based “rights” has been highly controversial: they present a challenge, both to traditional ways of understanding rights in the individualistic and politicized terms of Western countries, and in the practical obstacles to their realization. The formulation of creative rights in the International Bill of Rights shows that they simultaneously include elements of all three generations of rights, and call for the simultaneous realization of all levels of protection – a situation that is likely to present conceptual and practical obstacles to their implementation. Indeed, the absence of clarity and the difficulty of enforcement are general problems that have plagued international human rights norms for decades. The expansion of human rights language to include a great variety of interests and concerns – areas as diverse as a right to food, a right to development, and a right not to be subjected to torture – has been highly controversial. Some scholars feel that this “proliferation of rights” has weakened the concept of human rights tremendously, robbing it of its forcefulness, and even threatening its validity.48 In view of these concerns, what does the presence of creative rights in international human rights law signify for the protection of authors’ moral rights? In particular, can it contribute anything of value to the law of moral rights? In keeping with the general tone of human rights instruments, the way in which authors’ personal interests are dealt with in human rights law is general and rhetorical, rather than narrow and precise. In other words, the language of the human rights documents naturally tends to reflect the intuitive quality of the relationship between intellectual and human rights; it does not attempt to resolve the technical and practical issues of legislative drafting, implementation, and enforcement. As Peter Drahos observes,

Copyright and human rights 217 “[h]uman rights instruments tend to be drafted at the level of principle and in open textured ways. The precise content of these rights is difficult to formulate.”49 However, the imprecise nature of international human rights norms does not necessarily create obstacles to their legal recognition and enforcement.50 Rather, the presence of moral rights in human rights documents raises the possibility of dealing with the personal interests of authors on some legal basis other than the commercial law framework into which copyright is usually placed. Understanding the moral rights of authors as human rights interests, rather than commercial or proprietary interests – indeed, as an afterthought to laws dealing with the property interests of authors – cannot fail to bring important new dimensions to the interpretation of moral rights. The answers to questions that typically arise in relation to moral rights, such as how to balance these rights against other social interests, will be different when considered from a human rights point of view. Given the character of international human rights norms as general principles rather than legally enforceable rights – what Drahos refers to as the “twilight zone of normativity known . . . as soft law”51 – the value of international human rights as a source of law on authors’ moral rights is limited. However, human rights law can make an invaluable contribution at the level of moral rights doctrine and its interpretation in the legal systems of the world. It can do so in at least three concrete ways. First, a human rights perspective can enlarge the conceptual basis of moral rights doctrine, making it possible for the legal treatment of authors’ personal interests to address a wide range of individual, community, and state interests implicated in moral rights. In particular, human rights law can provide an alternative to the prevailing, commercial-law model of copyright, into which moral rights inevitably fall, and which appears to be unable to accommodate many of their aspects. Second, human rights can provide criteria by which to implement and enforce moral rights for the greater benefit of authors and society. Human rights principles can help to determine how to balance the protection of moral rights with other aspects of authors’ rights, and how they should interact with, or be balanced against, other individual rights and community interests. They can provide ways of assessing different aspects of moral rights protection against one another – for example, the relative importance or desirability of publication, attribution, and integrity interests in a given social context. Additionally, a human rights framework can assist in the administration of moral rights, for example, by making their enforcement a matter for specialized tribunals or constitutional courts. Third, expressing creative rights in human rights terms can contribute to the articulation of social aspirations: moral rights can help to express the desire to respect, recognize, and celebrate creativity and culture. Notwithstanding the influence and inspiration of human rights language, the precise content of moral rights remains a complex legal question

218 Copyright and human rights requiring distinctive solutions in different jurisdictions, and at the international level. However, it is clear that moral rights within a human rights framework are likely to differ substantially in form, content, and spirit from the narrow corner which they currently occupy in an international framework for copyright regulation dominated by commercial concerns. For example, a right of integrity that is based on human rights in creation and culture is likely to be broader than the formulation in the Berne Convention: it may apply to any potential alteration of work, without imposing a burden on the author to prove that his or her reputation has been adversely affected. A “human right of attribution” might provide explicit protection for anonymity, or the protection of pseudonyms, which, as in the Siniavski–Daniel trial, a government might wish to lift in order to impose criminal sanctions on the creator. A human rights approach to moral interests might also mean that, as in the Russian Draft Civil Code, any “interested person” should be able to assert moral rights after the death of the author. This provision seems to recognize that the protection of moral rights should be a social concern – although the criteria for determining who is an “interested person” will certainly have an impact on the implementation of this right.

Moral rights and human rights The presence of authors’ personal interests in international human rights discourse provides an opportunity to enrich the legal models for their protection. Due to formal limitations affecting both human rights law and intellectual property rights, this connection remains virtually unexplored. In relation to authors’ personal interests, at least, a closer consideration of the nature and purpose of moral rights should make a degree of rapprochement possible. However, the effective development of a human rights model of authors’ moral rights depends additionally on the clarification of a deeper issue: the conceptual compatibility of moral rights doctrine with the philosophy and rationale supporting human rights. The edifice of international human rights law is constructed on two basic assumptions. The first is the “fundamental” nature of human rights; they are the epitome of “natural” rights, in the sense that they arise out of our “fundamental” human nature. The second premise flows naturally from the first: human rights, since they reflect our fundamental human nature, are “universally” applicable. Whatever the social context in which an individual may live, his or her fundamental human rights must be recognized and protected. At the same time, in order to qualify as a fundamental human right, one must be able to demonstrate that the right in question is linked to our “fundamental” nature as human beings, and is therefore equally valid in a variety of diverse social contexts. The development of international human rights law along these lines seems inevitable. Human rights law is part of a long-established tradition in

Copyright and human rights 219 Western thought that attempts to provide a philosophical foundation for the just treatment of individuals in society based on a deeper understanding of our place in the universe. Thinkers as diverse as Rousseau, Hegel, and Locke have attempted to resolve the basic problem of what constitutes “human nature,” and how it is both preserved and transformed through the socialization of man.52 Twentieth-century history exposed as never before the extent to which Western culture could become brutalized, and brought a new intensity to questions of human nature and human dignity.53 It is for this reason that the modern concept of human rights, though it has a long philosophical pedigree, is truly a child of the post-World War II era. Its legal foundations can be traced to the post-war trials of German “war criminals” at Nuremberg, where, for the first time in international law, a state was held responsible for the mistreatment of its own citizens, and military personnel faced judgment for their conduct in the line of duty.54 While it is not difficult to understand how human rights law developed as the protection of “fundamental” and “universal” values, the language of universality has greatly impeded the subsequent development of human rights. It has led to inconsistencies and failures, both in theory and in practice. Two examples will serve to illustrate the gravity of these concerns. A notable conceptual inconsistency arises under human rights law in the distinction between political and economic “rights.” Civil rights and political freedoms are part of the “first generation” of human rights, and their protection forms the core of human rights statutes in the Western world. Economic rights are part of the second generation of “welfare” rights: the difficulty of guaranteeing the practical enforcement of these rights has interfered with their legal development in most Western countries. However, economic rights are clearly at least as “fundamental” as political rights: how can the right to food be less important than the right to freedom of speech? When we consider the humanitarian law dealing with refugees, the differentiation of political and economic rights acquires sinister undertones. While a political refugee is generally entitled to seek asylum in a Western country, an economic refugee is not considered to be a refugee at all. It would hardly be an exaggeration to say that a person who seeks to migrate to another country for economic reasons is scorned by the international community, and has no recourse to international law to protect him or her from deportation.55 Yet, if people seek to migrate to another country to improve the protection of their economic rights, are they not doing what is normal and natural, and indeed, according to international human rights principles, what they should be entitled to do? The language of universality has led to practical failures to confront overt violations of human rights in the international community. Practices that almost certainly should be deemed contrary to international human rights law are tolerated on the grounds that they represent the cultural traditions of different countries, peoples or religions. In this kind of discourse, “culture” becomes the overriding value, and attempts to improve “cultural”

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behaviors on human rights grounds carry an unacceptable flavor of “Western imperialism.” Yet, how can the international community tolerate, for example, the physical abuse and violent repression of women on the grounds of culture or religion?56 And how can this all-accepting and uncritical view of cultural traditions, itself, be healthy or desirable for cultural growth, particularly in underprivileged or politically oppressed regions? This situation suggests that there is something fundamentally wrong with the way we conceptualize and articulate human rights norms. The problem of “fundamental” and “universal” values also presents an impediment to the recognition of authors’ rights as human rights interests. In particular, the doctrine of moral rights is inconsistent with the language of universal rights in two important respects. First, in current historical scholarship, moral rights are generally associated with the birth of Western European Romanticism, and they are believed to be a product of the cultural and intellectual environment of nineteenth-century Europe.57 In this sense, the concept of moral rights may be a culturally specific doctrine, with limited applicability to new cultural contexts, especially those countries and cultures that differ widely from the Western European model, including those of Eastern Europe, the CIS, and Russia. Second, since moral rights deal with artistic creativity and culture, it will be difficult for them to claim a status as “fundamental” rights. After all, creativity and culture are “luxuries”: it is usually assumed that they can only be pursued and enjoyed once the “basic” needs of human beings have been satisfied. These conceptual arguments must be addressed by looking at the validity of the premises on which they are based. It is perhaps not surprising that the clues to resolving them may be found, not primarily in legal scholarship, but in anthropological literature. In an illuminating discussion on the substantive content of human rights norms, Marie-Bénédicte Dembour points out: The expression “human rights” is . . . ambiguous with regard to the meaning of the term “right” which it contains. Although it sometimes refers to enforceable legal rights, it arguably refers more often to moral rights which have not found their way in[to] legally binding provisions, but hopefully will. . . . In my view, human rights are (predominantly) extralegal not because they correspond to “natural” moral rights but because they serve to articulate political claims which make sense in a particular social context.58 Dembour contends that asserting the “universality” of human rights norms may not be the key to understanding what they actually signify. Indeed, as her discussion emphasizes, there is something about the very concept of a “right” that distinguishes it both from the possibility of realization outside a specific legal framework, and from the idea of “natural” law

Copyright and human rights 221 that exists apart from any specific legal framework. A “right” is a legal construct. What, then, is a human “right” that exists apart from law? Dembour suggests that the language of human rights is, above all, a tool of empowerment. Indeed, in their search for a means to fight against repression, Soviet dissidents first turned to the language of the law for help. On Soviet “Constitution Day,” December 5, 1965, Aleksandr Esenin-Volpin organized a demonstration in which he held up a placard declaiming, “Respect the Constitution.”59 Human rights law allows humanitarian interests to be expressed in such a way that an awareness of their importance is raised. Dembour cites the example of a “right to credit,” which, in the context in which it is articulated, can be shown to represent humanitarian concerns. Moreover, she emphasizes the aspirational aspect of human rights, which may in itself make an important contribution to the realization of more humane conditions of life. She argues: What interests me . . . [about] the Grameen Bank [a bank in Bangladesh which only lends to the poor] is not so much the unusual conditions under which . . . [it] works . . . as the fact that the man behind it, Professor Muhammad Yunus, uses the language of human rights to describe the idea behind the successful project. He is quoted as saying that the Bank thinks that credit should not be the privilege of the fortunate few, and that it sees credit as a human right. Referring to human rights in this particular context makes sense. . . . [H]uman rights are first and foremost political aspirations. They embody claims for a more egalitarian world, and these claims draw their strength and legitimacy precisely from the fact that they are cast in the language of “human rights.”60 Dembour’s ambivalence about human rights is at least partially a reflection of her anthropological background, which leads her to be deeply hesitant about the very idea of a fundamental “human nature” underlying a universalist approach to human rights.61 From a legal point of view, while recognizing the limitations of a universalist model of human rights, it may not be feasible to abandon altogether the hope of achieving a coherent conceptual rationale for human rights protection. This is not so much the case because legal thinking prefers to deal with precise issues rather than ambiguous ones, as because law inevitably involves an element of coercion. Human rights may represent the political language of self-assertion. When this language is ultimately translated into a legal norm, however, its significance is altered. It becomes a way of protecting one interest against infringement by another, and in doing so, it may have far-reaching consequences for society. Since legal norms involve coercion, there must be a sound policy justification for the legalization of a human rights interest. In relation to moral rights, the idea of creative authors making a political claim for the recognition of their rights on humanitarian grounds is easy to

222 Copyright and human rights accept in terms of a struggle for the recognition of their “human rights.” When we consider the cultural concepts built into the doctrine of moral rights, however, it becomes apparent that the introduction of human rightsbased protection for these rights along “universalist” lines may have unintended, negative consequences for cultural diversity. By offering legal status and protection to individual creation and creativity, moral rights may implicitly discourage other cultural patterns. The doctrine may be hostile to group or community involvement with the arts, and it may simply be unable to protect certain kinds of artistic or cultural works. For example, moral rights are not ordinarily applicable to anonymous works of folklore; however, these kinds of works may have a much greater importance in other cultures, including those of Russia, Eastern Europe, and the CIS, than they would in the West.62 Indeed, they may be predominant features of minority cultures that, in any case, suffer from prejudice and neglect, such as those of Eastern European Romany people. In this case, moral rights can become an additional tool of repression.63 Similar problems may be posed by the concept of originality underlying moral rights doctrine. What would the strict application of Western criteria of originality mean in a culture where reusing or adapting pre-existing works may be central to the creative process? For example, William Alford’s analysis of copyright law in the Chinese context suggests that the connotations of copying in China are totally different from what they are in the West.64 India provides another example of a culture where tradition has seen the adaptation of literary works from one language to another as an important artistic activity, and, of course, an important source of cultural cohesion in this vast and diverse land.65 In Russia, the importance of translation in building a common notion of Russian culture is reflected in the extreme reluctance of the Russian and, later, Soviet government to restrict translation rights.66 Indeed, it is worth noting that modern concepts of originality, like authorship, are relatively new even to the Western world, which, as recently as the Renaissance, had a more flexible approach to creativity. These arguments raise legitimate concerns about the justice of developing the author’s moral right as a human right. However, a practical investigation of where moral rights stand internationally suggests that fears like these are largely unfounded. Of any aspect of copyright law, moral rights have undoubtedly achieved the widest international acceptance. In particular, they enjoy virtually universal recognition in developing countries, which have historically resisted Western copyright law on the grounds of culture and tradition. They were also recognized in the legislation of socialist countries, as a way of privileging authors over copyright owners, and have been retained in most post-socialist legislation. Developing countries have seen moral rights as a way of bringing muchneeded prestige and protection to national creativity, especially after colonial experiences.67 Legislators and, especially, judges in developing countries have often developed innovative ways of dealing with moral rights, shaping

Copyright and human rights 223 their legal treatment to reflect different cultural needs and priorities. Moral rights have become applicable to works of folklore;68 they can apply to any form of the mistreatment of a work, whether or not an author’s reputation is damaged;69 they can protect an artwork against destruction;70 and they can be vindicated by members of the general public.71 For socialist countries, acceptance of moral rights in developing countries, who share many of their economic and cultural concerns, may inspire their legislators and judges. The question of whether creative expression represents a “fundamental” human value is one that is much more difficult to assess on the basis of empirical evidence. Any consideration of this issue must be undertaken in a spirit of humility: the complexity of legal regulation dealing with creative expression presents a most stark contrast with the limits on our knowledge about the phenomenon of creativity itself. The creative process remains poorly understood, and it is difficult to define the meaning and importance of culture in human life and society. The mystery of artistic creation lies at the heart of copyright protection. It may therefore be reasonable to turn to the true “experts” on creative matters, authors and artists, and consider the nature of their involvement with their work. Why did creative writers continue to write under the oppressive Soviet regime? Was it out of a sense of duty to their oppressed societies, an extraordinary idea in itself? Was it out of personal need? Was their perception that they had no alternative, whether for professional or personal reasons? Whatever the answers to these questions may be, the fact remains that many writers were prepared to risk everything, including life itself, in order to continue writing. A letter to Stalin from Yevgeny Zamyatin, the Russian pioneer of satire, provides an extraordinarily moving illustration of what Baudelaire may have meant when he referred to a “besoin d’art,” a “nécessité de poésie.”72 The incident is recounted by Hosking: In 1931 Zamyatin wrote directly to Stalin, declaring that for him being deprived of the opportunity to write was equivalent to “the death penalty.” He admitted “that I have the very inconvenient habit of saying not what is expedient, but what seems to me the truth. In particular, I have never made a secret of my attitude towards literary servility, careerism and apostasy: I have always thought, and still think, that they are demeaning both for the writer and for the revolution.” He asked to be allowed to emigrate in order to continue writing. Stalin granted him an exit visa.73 The attitudes of authors towards their own creative work suggests that, for them, there is something quite essential about their activity, and that its importance goes beyond purely professional considerations. A great deal has been written about the pros and cons of legal protection for authors’ rights, but very little of this literature seems to look at the phenomenon of authorship from the author’s perspective. An interesting addition to this line of

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discussion is developed in a fascinating study by Ellen Dissanayake, which considers human creativity from the perspective of evolutionary biology. Dissanayake concludes that art, far from being a luxury, is a fundamental human need. Her contention is all the more striking in view of her tremendous scepticism about modern artistic trends. She argues: Yet acquaintance with the arts in other times and other places reminds us that they have been overwhelmingly integral to people’s lives. Far from being peripheral, dysfunctional, trivial, or illusory, the arts have been part of human beings’ most serious and vital concerns. If they are not so today, we should perhaps look for the reason not simply in some flawed metaphysical status of the concept of art but rather in the way we live. . . . I am convinced that contemporary art and contemporary life can best be regarded not from the perspective of philosophy, sociology, history, anthropology, psychology, or psychoanalysis – in their modern or postmodern forms – but within the long view of human biological evolution. . . . My readers should note that I am not arguing that biological understanding automatically rules out the other perspectives I mentioned above. It does, however, precede these and provides a broader justification than other views for reclaiming the arts, humanizing them, giving them once more the relevance they originally possessed in human existence.74 Though controversial, Dissanayake’s thesis provides an invaluable perspective on the arts. The persistence of artistic creation even in the most adverse circumstances – or perhaps, especially then – suggests that human necessity is somehow at issue. It is apparent that moral rights can lay claim to the protection of human interests that are, in all relevant respects, both universal and fundamental. What is equally important, they represent an aspiration toward more humane conditions of social life. Moral rights protect the creativity of authors and artists; they also signify a political and social commitment to the protection of culture. Indeed, it is hardly necessary to look at the historical situation of authoritarian regimes like Soviet Russia to understand the importance of articulating these aspirations. A consideration of more recently oppressive societies, whether in Nigeria, Afghanistan, or elsewhere, supports the same view. Moreover, though its government has embarked upon democratization, the present situation of Russia still reveals anew the prospect of oppression in many forms – through organized crime, big business, and the globalization of culture. These factors inevitably remind us of the precious fragility of creative freedom.

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Moral rights and culture Much scholarship on moral rights is concerned with their role in protecting the reputation of an author. This emphasis is a natural reflection of the way in which moral rights are typically drafted: the right of integrity is considered to be the moral right with greatest practical significance, and it is usually limited, as in the international model provided by Article 6bis of the Berne Convention, to actions that prejudice the “honour or reputation” of the author. However, this interpretation of moral rights theory is unnecessarily narrow. The reputation of the author can as well be protected by defamation law – a point alluded to by Pierre Recht in his interesting, if rather unsympathetic, analysis of droit moral75 – and does not really account for the development of a specialized doctrine of moral rights. Moreover, the fact that the most important moral right is directly concerned with the treatment of artworks – the effect of the treatment on the author’s reputation acting as a legal device limiting the reach of the right – makes the emphasis on reputation seem slightly artificial. On closer examination, it is clear that moral rights reflect social attitudes about creativity and creative work. The connection between an author and his or her work represents a socially important relationship, and it has therefore come to enjoy protection through this specialized branch of law. Moral rights contribute, each in its own way, to the individual author, and to the status of his or her work. However, moral rights also make a larger contribution to culture, one that tends to pass unremarked. Moral rights contribute to a public interest in culture in at least three, important ways: the generation of respect for creativity, which leads to the creation of culture and encourages the maintenance of cultural heritage; the preservation of the existing cultural patrimony; and respect for historical truth.76 The public interest in culture that moral rights protect finds expression in the provisions of the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights; they appear in the form of rights in culture, and public access to culture.77 The contribution of the right of integrity to culture is perhaps the most obvious of all the moral rights, and is worthy of close consideration. It is clear that the protection of the integrity of creative works contributes to the general status of the cultural domain. In many countries, works of individual authorship constitute an important part of the cultural heritage. By protecting existing works of art, the right of integrity can thereby help to maintain cultural heritage. Its contribution to maintaining the quality of the cultural domain, from which current authors who are presently active draw their knowledge and inspiration, also encourages creativity. As it is recognized in international copyright law, however, the integrity right is subject to a number of limitations. In Article 6bis of the Berne Convention, the integrity right only allows authors to protest against changes to

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their work that may affect their “honour or reputation” – in other words, their personal or professional standing. This legal limitation may unduly restrict the reach of the right of integrity, since it would impose a burden on the author to prove that his or her reputation has been negatively affected, before the artwork could be protected. An integrity right that was independent of the author’s reputation would place the burden of proof on the person dealing with the artwork to show that his or her actions were not damaging to culture. This kind of integrity right could have much broader repercussions for culture, and for this reason, it is favored by a number of jurisdictions that are concerned about the status of their cultural heritage. These include developing countries as diverse as Mali and India.78 This formulation of the integrity right was also historically favored by Russia, which placed great importance on the “right of inviolability of the work,” and Russian moral rights legislation has become significantly more conservative in preferring the Berne standard.79 A second limitation on the right of integrity arises out of the fact that, in the formula of Article 6bis, it cannot protect a work of art from outright destruction. The logic of this restriction is that a work which no longer exists cannot affect its author’s reputation negatively.80 It is true that the destruction of a work may damage the author’s reputation by reducing the quantity and quality of his or her body of work as a whole, but this argument has not been widely persuasive.81 This, too, is a limitation that restricts the potential contribution of the right of integrity to culture. The contribution of the attribution right to cultural heritage is subtler, but no less important. The right of attribution supports an accurate view of cultural history: by recognizing the true author of a work, a truthful understanding of history becomes possible. A cultural environment that is correctly attuned to historical fact will be more compatible with creativity and development. The importance of the attribution right in preserving historical truth becomes clearly apparent when we consider the contribution of creative authors to the maintenance of truth and history in Soviet Russia. History must preserve a record of the writings of Soviet-era authors, which contain truths about history that, in a regime specializing in the creation of “memory holes,” may not be available in any other, credible form. Russian copyright history also serves to illustrate the importance of the right of disclosure for culture. Without the recognition of a right to publish, the development of culture could be utterly stifled. The outcry among Russian intellectuals surrounding membership in the UCC was a direct result of this concern: they feared that Russian literature would become unpublishable and unavailable worldwide as a result of Soviet membership in this international union. Their fears were due to provisions in Soviet copyright law that would allow the government to undertake a compulsory purchase of an author’s work, giving the right to control copyright in the work and, since the state would be the owner of copyright, making it impossible in practice for the author to vindicate his or her moral

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right of first publication. Respect for a creator’s right to publish his or her work is an essential pre-condition for ensuring the availability of important works of culture to the public, and to the community of intellectuals whose ability to make a contribution to society depends on their own access to culture. The exercise of these moral rights depends on the initiative of the author of the work, the person who may well have the strongest motivation to intervene on its behalf. However, it is not at all clear that the cultural interests protected by moral rights lose their value when the author dies. If anything, moral rights interests may actually acquire greater urgency when the author is no longer present to clarify doubts about his or her work, or to protect it from damage. The work endures beyond the author’s time. The issue of protecting its integrity therefore persists, and becomes part of the general need to protect the integrity of cultural heritage. According to international legal convention, the integrity right may be considered to serve the primary purpose of protecting a living author’s reputation, and offering protection to the integrity of his or her work as a purely secondary function. However, upon the death of the author, at the very least, this order of priorities should be reassessed. In order to realize fully the cultural benefits to be gained from protecting authors’ personal interests, the issue of what happens to moral rights after the death of the author must be considered. During the period of copyright protection post mortem auctoris, the author’s heirs are usually charged with the responsibility of protecting his or her moral rights. However, the exercise of moral rights by the author’s descendants may not always produce the most desirable results for culture. For example, descendants may wish to suppress knowledge about certain aspects of the author’s life or work for a number of reasons, including privacy and, less sympathetically, propriety, or an intent to exploit the information later on. Solutions to these problems are suggested by the provisions in the Draft Civil Code of Russia: allowing the author to designate a person who will be responsible for exercising his or her moral rights after his or her death, or, more controversially, making them the responsibility of the state. Moral rights in the public domain present a similar problem. Should the moral rights of the author continue to be protected in relation to works that have fallen into the public domain? This question leads to the additional difficulty of whether moral rights are relevant to works that automatically fall into the public domain, such as so-called works of “folklore,” or cultural property.83 In fact, moral rights, and the right of integrity in particular, may make an important contribution to the preservation of cultural heritage that is part of the public domain. One solution to the integrity issue in public domain works is to create a moral right that can be vindicated by any “interested” member of the public on behalf of the author – whether he or she is known or unknown, an individual creator or a community. The definition of who will have locus standi to bring such claim must be broad enough to

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make the right meaningful in the eyes of the public, but narrow enough to prevent “busybodies” from embarking upon wasteful litigation. Public domain measures involving moral rights can work in conjunction with other legal and administrative provisions for safeguarding culture. By entrusting “interested persons” to assert them, as in the Draft Civil Code provisions on copyright in the Russian Federation,84 they may also further the broader cause of public education about culture. Moral rights in the public domain may be of special value in developing and oppressed societies, where the obstacles to respecting and valuing culture are, in a sense, at the very heart of development problems.85 Unfortunately, many of these measures remain speculative, as they represent relatively unusual features of moral rights legislation, and are largely untested in court proceedings. However, recognition of this aspect of moral rights doctrine – the importance of protecting the personality interests of authors for culture and development, as a whole – helps to clarify why these rights should be understood as humanitarian interests, rather than exclusively individual or commercial concerns.

Moral rights and creative freedom Having considered the complex issues at stake in a human rights model of moral rights, it now remains to deal with the problem in its narrowest, most fundamental, and final dimension: moral rights as a form of protection for the individual right of the author. A study of moral rights in Soviet Russia shows a clear incongruity at the intuitive level between the protection of authors’ moral rights and the repression of creative expression. This intuitive malaise is borne out in moral rights theory, which is premised upon a privileged relationship between creator and work, and the social importance of maintaining the integrity of this relationship. If this relationship can be vindicated against private interests, potentially even curtailing the free expression of members of the public who use or exploit creative works, it would seem to be important enough to offer it an appropriate level of protection from the arbitrary interference of the state. An initial approach to the relationship between moral rights and free expression immediately raises the specter of an opposition between copyright and freedom of expression. As discussed above, moral rights may, indeed, have the effect of imposing restrictions on public access to information. Nevertheless, it is a mistake to suggest that they oppose freedom of speech values. Not only are moral rights compatible with freedom of speech, but, as this discussion will seek to demonstrate, they should actually be understood, in their own right, as a legal instrument for the recognition and protection of free expression. In order to understand the close relationship between authors’ moral rights and free expression, it is necessary to consider copyright from the perspective of the author. Indeed, in the debates surrounding copyright

Copyright and human rights 229 policy, the absence of individual authors is striking. Rather, copyright, as is generally the case in relation to intellectual property rights, has come to be perceived primarily as a property right that serves the interests of corporate owners. This is the case for two reasons. First, copyright has gained prominence as a form of legal protection for new communications and information technologies, whose creation and development is often associated with corporate investment and team labor. Second, the view of authorship as being composed of groups of people, possibly working in a business environment, rather than an independent, individual creator, probably reflects a growing social reality. At least in Western countries, the entertainment “industries” and, ultimately, the arts, often seem to be infiltrated by a corporate presence, at the level of funding and beyond. The widespread and growing understanding of copyright as a form of corporate property is also reflected in the relative neglect of moral rights in international copyright developments. Moral rights are, by definition, rights of personal authorship: as a rule, they cannot be exercised by corporations, bought by them, transferred or sold to them.86 In a regulatory environment that is defined by technology and corporate involvement, copyright is typically analyzed from the perspective of social policy, rather than individual rights. Copyright is a form of protection for the investment of corporations into innovation; it also acts as the main system of incentives for innovative and creative activity. When individual-rights interests are discussed within a copyright context, it is usually to show how copyright acts to their detriment. As Jeremy Waldron observes: [I]n our legal culture, the defense of intellectual property is seldom cast in purely individualistic terms. Officially, the justification is supposed to have more to do with the social good than with the individual natural rights of authors. The U.S. Constitution empowers Congress “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.” The clause emphasizes that copyright is purely a matter of positive law; it is to be a creature of statute, in contrast to the rights which are recognized in the Bill of Rights. Moreover the clause insists that the positive law of intellectual property is incipient to a specific policy goal: it is a means to an end.87 Concerning freedom of expression, in particular, the usual view is that it is limited by copyright, because copyright restricts what can be done with creative works. In particular, moral rights may limit how a creative work is displayed, used, or even criticized. Most obviously, moral rights may potentially clash with parody, an art form in its own right, but one that depends on using original material and satirizing original works in ways that may not always find the approval of the author.

230 Copyright and human rights However, the fact that moral rights may interfere with parody is not an especially strong reason to conclude that they interfere with free expression values, overall. For example, defamation law may also interfere with parody, and indeed, with the free expression of opinions in a much wider sense. Why is it acceptable to protect an individual through defamation law, potentially at the expense of free speech, while it is not acceptable to protect a creative work, or an author whose livelihood may be ruined if his or her reputation is destroyed? The real difficulty is not that authors’ rights and free expression are incompatible: rather, there is a fundamental lack of clarity, both about what freedom of expression means, and about the purpose of legal protection for authors’ rights. If a clearer understanding of the relationship between freedom of expression and authors’ rights could be achieved, it might become possible to resolve collisions between these two domains. Guiding principles of public policy could help to determine which interests should prevail in different circumstances. Freedom of expression is a very important value in democratic societies: the idea that an individual has the right to express his or her thoughts and opinions freely is at the heart of our political system. It is also the essence of our society and culture, making diversity of expression not only a reality of social life, but an ideal of what our culture aspires to be. However, freedom of expression does not mean that “anything” can, or should, be tolerated. Rather, even in the freest society, there is a sense of balancing different kinds of expression. The idea of socially important expression – in contrast to the idea of socially useful or socially valuable expression – defines both what is allowed and what is prohibited in free societies. For example, in the United States, the jurisprudence of the Supreme Court would define socially important expression in terms of protected categories of speech.88 Authorship rights are designed to protect creative works, a socially important form of expression. Moral rights protect creative works by preserving a special relationship between an author and his or her work that allows an author to undertake legal action for its protection, and on his or her own behalf, as its creator. He or she is legally entitled to seek the protection of the work from damage. Arguments that the right of the author interferes with freedom of expression are based on the false notion that creative work is by nature a “public good,” freely available to all. Whatever theory of authorship one may choose to espouse, it remains a matter of fact that works come into existence only because of authors’ existence, and their investment of themselves, their labor and their life, into the work. When a member of the public “uses” the work, his or her actions constitute the treatment meted out to someone else’s work – “free expression” that may have a profound, personal impact on the reputation, work, and psyche of the author. On the other hand, authors, too, can potentially exercise their moral rights for less than noble motives of censorship – for example, in the case of works of parody, or in circumstances where they want to avoid the appearance of unfavorable publicity. In circumstances like these, the author’s moral

Copyright and human rights 231 right could actually harm cultural heritage, rather than protecting it. Rather than making this argument a reason to avoid exploring the benefits of moral rights for culture, it may be better to generate special legislative provisions dealing with parody, and to allow courts to mediate in the relationship between author and parodist with a view to achieving an acceptable balance of social interests. For example, French legislation creates a specific exemption for parody, which seems to serve the interests of free speech adequately.89 Moral rights protect the author’s ability to see the creative process through to its desired end, by publishing the work, by putting his or her name to it, and by preserving it from distortion, mutilation, or modification. Without the substantial protection of these interests, authors will be unable to achieve the fulfilment of their need, as those who profess a creative vocation, to express themselves and their best abilities to their society, through their work. In this way, the moral right of the author is closely associated with his or her need for, and right to, free creative expression. At the same time, the social importance of creative work must be recognized. The public has a strong and deeply ingrained interest in the preservation and growth of culture. From the perspective of both the author and society, therefore, there is a clear basis on which creative work is entitled to protection as a socially important type of human expression. Of course, this does not mean that moral rights are entitled to absolute protection, any more than any other right in a free society. Insofar as they are associated with creative expression, however, they merit an adequate and appropriate standard of protection. This means that legislative protection should be granted to the basic rights of disclosure – including withdrawal – attribution, and integrity, and that judges should be empowered to use these rights to protect authors from both private and public censorship. At a minimum, the legal protection of moral rights in free societies should reflect an awareness of their importance for the human rights of authors and, through them, a recognition of their contribution to the creative and cultural rights of all human beings.

The true politics of moral rights Considering the range of humanitarian concerns implicated in moral rights doctrine – issues involving both individual creative rights and the public interest in culture – it is apparent that recognition of moral rights will be an important part of the legal framework in societies that aspire to creative freedom. Indeed, the connection between moral rights and creative freedom is perhaps most clearly apparent when we look at the situation of moral rights in politically oppressive environments. A study of moral rights in the Soviet Union, which could once claim to be the world’s most fully realized totalitarian society, shows that moral rights are fundamentally incompatible with ideological oppression. Respect for authors’ rights to choose the

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conditions in which they release their work to the public, to maintain the attribution of their work to themselves by name – or to the protection of a pseudonym or anonymity – and to protect their work from harm, all imply a deep deference towards individual expression. In particular, respect for moral rights arises out of a deeper regard for free creative expression as a socially important form of human speech. In a society that cannot tolerate ideological diversity and freedom of the imagination, moral rights will not be respected. They may be protected for those authors who successfully manage to walk the tightrope between political acceptance and dissent – and for those who do not try – but such severe limitations on the circumstances in which moral rights will be recognized, protected and enforced begs the question of whether such “rights” are, de jure, moral rights at all. The moral right of the author should remain his or her personal prerogative, to avoid the danger, as in the Shostakovich case, of being pressured into asserting it for political reasons. After his or her death, it should fall to appropriate agencies to protect the moral right of the author; the assertion of moral rights should perhaps not be entrusted exclusively to the personal heirs of the author, who may not be in the best position to vindicate these rights with the public interest in mind, but also, to “interested” members of the public, or appropriate cultural agencies. Since moral rights are part of copyright law, they typically fall within the domain of private law, which is supposed to regulate relationships among private entities, and not public law that deals with the relationship between the state and individuals. However, copyright law is a hybrid area that includes both private and public elements, and these hybrid qualities are especially pronounced in the area of moral rights. The protection of authors’ moral rights involves the creation of a relationship of legal privilege between the author and his or her work: it may be protected against infringement even at the expense of other, important social interests, such as public access to knowledge and information. The legal protection of moral rights affirms the importance of this relationship, of the creative activity that it represents, and of the cultural sphere, to which it contributes. In view of these rationales underlying moral rights doctrine, it seems conceptually inconsistent to argue in favor of protecting authors’ personal rights from infringement by private parties, while allowing the state to interfere with them on an indiscriminate or arbitrary basis. Of course, it is true that the state is charged with larger duties to the public which are not normally associated with private entities, and which might require it to undertake action for the protection of public security.90 However, in relation to authors’ moral rights, as with all rights that are recognized in free societies, the action of the state must be constrained, by custom and by law. The threshold at which moral rights can be set aside by the state should be defined in careful legal terms, and it should not be set so low that the integrity of the doctrine is compromised. Quite simply, a meaningful framework for the protection of moral rights must be based on

Copyright and human rights 233 respect for fundamental human rights, and for the principle of the rule of law.

Conclusion Despite their presence in copyright law, primarily an area of commercial regulation, moral rights have far-reaching implications for creativity, culture, and freedom. These aspects of authors’ moral rights transcend the conventional limits of copyright law, and should be recognized as involving an important humanitarian dimension. It is difficult to frame moral rights precisely in the language of human rights law. This limitation is as much a product of confusion and absence of clarity in the human rights arena – to some extent, an inevitable feature of human rights discourse – as a lack of vision about moral rights themselves. However, it is possible to identify and analyze a number of key respects in which moral rights are closely related to human rights interests. Doing so leads to a deeper understanding of the concepts underlying this aspect of copyright law and what they may signify in practice for creative freedom. A human rights approach to copyright may raise nearly as many questions as it answers about the future of this concept. Moral rights, a personal and intimate doctrine, present a contrast to our global and technological society. Nevertheless, human rights may point the way toward a more comprehensive and intellectually fulfilling vision of copyright for the international legal community. The language of human rights has its limitations; but, if moral rights are enmeshed within this web of words, their contribution to restraining the abuse of creative freedom may be greatly enhanced. The revolutionary power of words should not be underestimated. It is an idea for which Russian writers and others like them have been prepared to make great and irrevocable sacrifices.

Conclusion Copyright and culture in transition

What is copyright? In the Digital Age, this apparently straightforward question somehow defies a simple answer. It is different things to different people. For companies and business people who are involved in the businesses of entertainment or innovation, it represents an opportunity for money making. For governments, it is an intricate web of legal and political exigencies. For scholars and lawyers, it is an exciting new area of legal and conceptual change that is unsurpassed in its intellectual dynamism. For the public using and enjoying copyright works, it is at best, a nuisance – at worst, an infringement of their natural rights and activities, their engagement with culture in all its forms. For free speech activists, it is an intolerable impediment to the realization of free thought and expression. For authors, the significance of copyright is especially complex. It is a complicated branch of the law, perhaps mystifying, which somehow surrounds their activities and even purports to regulate them. It is an imposition on their ability to partake of a creative tradition.1 Yet it is also their champion – the preserver of their right to create against all opponents, even the most powerful commercial interests. What is troubling about the situation of modern copyright is not so much this diversity of perspectives on the law, which is but a natural reflection of the multi-faceted social reality embodied in the framework of copyright principles. Rather, there is a disturbing lack of consensus on an appropriate role for copyright in a global and technological society. Uncertainty about copyright, its values and its systems, has become impressively widespread. The fundamental question of how copyright can regain public confidence, and arrive at a new and credible equilibrium among the interests involved, will determine its future. How can copyright achieve the muchvaunted, much-needed, and utterly misunderstood ideal of “harmonization” – not only among the diverse legal systems of different jurisdictions, but among the diversity of social interests whose perspectives are represented within the copyright system? The difficulty confronting copyright is not primarily legal in nature; it is emphatically a cultural problem. What is

Conclusion 235 copyright’s role in the cultural transformation that has captured the imagination of the human race through the technologies of the Digital Age? While the exploration of this fascinating question is clearly in its earliest stages, certain signposts already indicate the path that lies ahead. The tensions caused by copyright reflect the incompatibility of traditional copyright models with the world of the Digital Age. The concepts of authorship, ownership, and publication – the personalities of creator, publisher, and public – are in the midst of transformation. The monolithic cultural models on which modern copyright is built seem ill-equipped to accommodate the diversity of the global community, whether in the technological realm or in the cultural sphere. Similarly, the economic variety of the modern copyright arena is poorly served by the dominance of a single view of copyright, essentially achieved through politics. In the search for new approaches to copyright, the international copyright community will be well advised to open itself to new ideas – whether they are a product of technological change in the world’s advanced countries, economic need in the poorest, or cultural transformation in societies in transition. Indeed, in the current environment, the idea of the “transition” refuses to stay secluded behind the Iron Curtain of days past – within the confines of the countries of Central and Eastern Europe who explored, endured, and ultimately outlasted Communism. In truth, the Transition affects us all. It is the reality, not of any interest as narrow as mere law or politics, but of culture as a whole, which defines and places in context all of our specialized knowledge about the world. It is in this environment that post-socialist countries are involved, among other things, in revising and modernizing their laws dealing with cultural transformation – including the branch of law most directly implicated in technological and global change, copyright. The intense inner conflict at the heart of copyright reform in post-socialist countries is broadly illustrated by the case of Russia. The international community urges Russia to enact a copyright regime that will bring the country into conformity with the requirements of international economic life, as embodied in the agreements and practices constituting the World Trade Organization. However, Russia’s efforts to achieve this goal have met with little better than middling success. Rather than establishing an effective new system for the implementation and enforcement of copyright, the Russian reform process has witnessed a gradual crumbling of the credibility of the law mirroring the disintegration of the idea of copyright at the international level. The future of Russian copyright remains to be determined, but the success of the law will most likely draw upon a more expansive approach to reform. Russia must reconsider its history, and its place in a post-Communist world.2 As in other aspects of law reform, the success of a new copyright system will depend on Russia’s ability to develop a trajectory for reform that integrates the lessons of a difficult past. By no mere coincidence, these particular lessons may prove to be strangely relevant to the experience of the international

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community as a whole. In a sense, Russians have learned about the possibilities of copyright through their history as an oppressed culture. The international community now faces the threat of a new kind of cultural oppression, brought about, in part, by the misapplication and abuse of copyright principles. Among the accumulated lessons of Russia’s past is the idea that copyright concepts can, and should, help to support the broader cause of free thought and expression – creative freedom. One way of approaching this possibility is to emphasize aspects of copyright that focus on creative and cultural life. Foremost among these, perhaps, is the moral right of the author. A consideration of the provisions on authors’ moral rights in Russia’s various draft provisions for a new Civil Code, currently pending review, shows that reformers are interested in improving protection for moral rights beyond the present standard. Indeed, it is noteworthy that moral rights in the Copyright Act of 1993 are less ambitious than either the corresponding provisions in the drafts, or the measures in the 1991 Fundamentals of Civil Legislation, the first post-Communist legislation on authors’ rights. The pattern of Russian reform suggests that reformers have consistently wanted to set a high standard for the protection of moral rights. However, there are significant political obstacles to the adoption of a higher level of protection. While some of these arise out of Russia’s domestic concerns, most of them are generated by the requirements of the international copyright arena. Russian copyright reform is torn between domestic and international pressures. In no area is this more strongly reflected than the moral right of the author, where international controversy is replayed in the relative microcosm of the Russian scene. The scaling back of moral rights protection between the 1991 Fundamentals and the 1993 Copyright Act reflects the pressure to conform to an internationally accepted standard of protection. The international position on moral rights is somewhat ambiguous: participation in the international copyright arena, which is now defined by membership in the TRIPs Agreement, requires countries to protect the moral rights of attribution and integrity, in conformity with Article 6bis of the Berne Convention. However, these rights are not subject to the disputesettlement and enforcement measures in TRIPs, with the result that moral rights are effectively excluded from the TRIPs system. The roots of this, extremely cautious, approach to moral rights are most likely to be found in the copyright policy of the United States. In the negotiation and adoption of the TRIPs Agreement, the United States has assumed an unprecedented leadership role in international copyright matters.3 American copyright industries – notably, film and computer software – have long been concerned about the implications of moral rights, whether at the domestic or the international level. In contrast to other areas of copyright, where the United States has generally encouraged the improvement of standards, a weak standard of protection for moral rights has been preferred. In consequence, the US government has chosen to pursue a policy of limiting moral rights both at home and abroad.4

Conclusion 237 The restrictive international approach to moral rights, as reflected in the TRIPs Agreement, has translated into more limited protection than that initially envisioned by Russian reformers. It is likely that the intensive involvement of American experts in Russian copyright reform – intended, in part, to further Russia’s bid for membership in the WTO – has been an important factor inhibiting recognition of the moral rights of authors in Russian law. Indeed, a closer consideration of the state of Russian law itself brings even stronger support to the view that international pressure, especially from the Americans, has imposed unwanted limitations on moral rights in Russia’s Copyright Act. In spite of its apparent willingness to lower its standard of protection, Russia appears to have maintained surreptitiously the possibility of greater protection for moral rights in its legal system. In its enactment of the 1993 Copyright Act, the Russian government repealed the provisions on copyright in the 1991 Fundamentals – yet it did not simultaneously repeal the earlier provisions of the 1964 RSFSR Civil Code.5 Where they are in conflict with the new law, the old provisions are effectively invalid.6 Where the old provisions complement the new ones, however, such a conflict does not arise. Therefore, a complete picture of authors’ rights in Russia can only be gained by considering the coexistence of Communist and post-Communist laws, and looking at the interaction of the old with the new. The importance of moral rights for Russian reformers almost certainly reflects their awareness of the difficult situation endured by authors in the Communist era. Both intuitively and logically, they are responding to Russia’s “transitional” legal problem, of how to remedy past injustices through present-day reform. Analysis of the current copyright framework reveals provisions that are directly related to Communist persecution – most deeply symbolic of all, the renewal of copyright term in the works of authors who were “rehabilitated” by post-Communist leaders.7 However, the general improvement of copyright standards, and, in particular, the importance placed on personal rights that were treated with a degree of suspicion by the Communists, is also an attempt to rehabilitate the concept of authors’ rights from its degraded status in the Communist era.8 The intuition of Russian reformers about the importance of authors’ moral rights in post-Communist society is also forward looking: it amounts to a kind of recognition of the contribution that moral rights can make to a newly democratic society. A consideration of the theory underlying moral rights and the rationales supporting human rights law shows that these two concepts of law are based on closely related ideals concerning freedom of thought and expression. The moral rights of authors reflect the special needs of a unique class of expression: creative work. Freedom of expression is widely recognized as a fundamental human right – indeed, in its essence, it is a form of freedom from fear of persecution, and as such, it seems quite essential to a fully realized human existence. However, the significance of freedom of expression for authors and artists is

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special, and deserves to be elevated above its meaning in ordinary life. For the creators of artistic and intellectual works, freedom of expression has profound professional and personal connotations. Without freedom to imagine and create literary or artistic works, it would be near-impossible for creators to exercise their profession. Judging from the observations of creative people themselves, the inability to exercise their profession in freedom from fear of persecution leads to devastating personal, as well as professional, consequences. Inevitably, the loss is one that is felt by society as a whole: the creative individual whose main means of contributing to society is through his or her creative work may be unable to contribute anything else of equal value, leading to the waste of human and cultural potential. The nature of the creative professions is such that the professional activities of writers and artists constantly subject them to the danger of persecution for what they have expressed in the form of a work of art. The expression of the thoughts and ideas of the creator is central to the practice of these professions – the mind of the author provides the raw material for all literary and artistic work. At the same time, this expression is consistently subject to evaluation according to criteria of social acceptability. When these criteria become extremely restrictive, as in Soviet Russia, it becomes practically impossible for an author to create in freedom. For these reasons, it is especially important that censorship against creative expression be restrained by law and custom. Censorship should not become so powerful as to inhibit or prevent the exercise of the creative professions, or so invasive that the contribution of writers and artists to society remains unrealized. The special importance of freedom of expression for authors and artists is not reflected in the law of human rights. Human rights instruments, including constitutional laws, provide broad, general protection for freedom of expression that is relevant to society at large. If we want to discover a source of specialized legal recognition for the interests of authors and artists, however, we must turn to copyright law, and the doctrine of moral rights. Moral rights protect authors’ right to determine when they are ready to disclose a work to the public; to be associated with their work, or to dissociate their name from it; and to protect their work from harm. These interests reflect the intense, personal relationship of creators with their own work, and the especially high price that they stand to pay for interference with it. It is true that the protection of these special interests may at times result in the curtailment of other important social interests – for example, the freedom of expression of non-authors, as in the case of parodies or works of criticism. The author’s moral right is not an absolute right. However, it must be granted its rightful place in the complex systems for balancing rights and interests represented by the legal systems of the world. Thinking about the author’s moral right as an “author’s human right” brings a new dimension to our understanding of the doctrine. A human rights concept of the moral right may have practical implications of various kinds. It may entitle moral rights to a place in constitutional instruments,

Conclusion 239 and it may mean that judicial interpretation of these rights should occur through constitutional courts. Moral rights principles may help to guide judges in disputes between creative authors and the state, providing guidelines about when and how the application of official censorship will be appropriate in a democratic society. A human rights model may generally help to guide judges towards stronger interpretations of moral rights in the case of disputes. A human rights concept may also make an invaluable contribution to moral rights in the international copyright arena. Moral rights are treated with tremendous suspicion and hesitation in international copyright law: in addition to their exclusion from the TRIPs Agreement, they have not been successfully included in any process of international copyright harmonization, whether at the European Union, WIPO, or elsewhere. The only exception to this trend is the introduction of an international moral right for performers in the WIPO Performances and Phonograms Treaty, which has not helped, however, to resolve any of the general controversies in this area.9 The question of whether moral rights should be fully included in the international copyright system is a separate issue, and one that will be very complex to resolve. What is clear, however, is that the failure to harmonize moral rights at the international level is an unmistakable symptom of confusion – confusion at the conceptual level, about the purpose and meaning of these rights in modern copyright systems, and in practical terms, about the economic and social consequences of a powerful and widely enforceable moral right. A human rights perspective on moral rights can help to clarify this situation: moral rights are intended to protect authors and society from the consequences of censorship, whatever form it may assume, and it is therefore important to make the social commitment required to uphold these rights. A human rights model is also relevant to another issue that has yet to receive due consideration from the international copyright community: the impact of the Digital Revolution on creative authorship. The development of unprecedented new technologies for creating and disseminating works of the mind has profound implications for creativity and culture. In the world of digital technology, both phenomena are in a state of transition and transformation. The extent of technology’s impact on creative expression has yet to be grasped. As in the time of Einstein and Heisenberg, the meaning of time and distance for the human psyche has been altered in some fundamental way. Instantaneous communication of vast amounts of information is possible to and from the most remote corners of the globe. Literary works, digitized sound and images, broadcasts in unfamiliar languages, films and photographs, and, ultimately, an inexhaustible variety of undefined forms of new creative expression, are all the subjects of global communication. Moral rights are closely implicated in these technological, social, and cultural developments. They are traditionally associated with the culture of Western European Romanticism, and the doctrine closely reflects the

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concepts of the age: individual genius, the work as a self-contained literary, musical or artistic document, an indissoluble relationship between the author and his or her own work, and, equally important, a hierarchical relationship between the author and his or her public, mediated by the work.10 In the Digital Age all of these premises, in one form or another, are called into question. The implementation and enforcement of authors’ moral rights has become problematic; in addition, the validity of moral rights concepts, based on the idea of a personal and unbreakable connection between the author and his or her work, has also come into question. A distinct area of concern arises in relation to the application of copyright principles to works whose main purpose is technological rather than artistic, such as computer programs, leading to the awkward question of what should be done about the moral rights that are ordinarily protected as part of copyright. These difficulties have led some observers to argue that moral rights have become irrelevant. Yet, if anything, the recognition of authors’ moral interests has become more important now than ever before. What is true, rather, is that traditional ideas of implementing and enforcing copyright may not apply. The future enforcement of moral rights will depend, not on coercive power, but on the knowledge, understanding, and education of the public at large. Indeed, moral rights should seek to be realized through the desire of the public; they should reflect the public desire to support the integrity of its own cultural patrimony. This reality should not obscure the fact that authors in the Digital Age are both privileged and uniquely vulnerable. Their status is in need of both clarification and affirmation, something that the doctrine of moral rights can help to achieve. As these examples show, there are many reasons why the doctrine of moral rights deserves closer examination in the Digital Age. A fresh approach to moral rights should attempt to clarify the purpose of these rights, the legal functions that they accomplish, and their practical importance, whether for authors and artists, or for cultural and technological industries. By a fitting irony, the international copyright arena may well be the most appropriate forum for beginning to resolve some of the fundamental issues surrounding the personal rights of authors, and initiate the exploration of a new concept of copyright. The controversy surrounding moral rights in international copyright law reflects the contradictions inherent in the development of global copyright standards. It is difficult to reconcile the economic focus of international copyright regulation, emphasizing trade in culture, with the characteristic qualities of creative expression, its non-commercial, local, and personal dimensions. Governments, in their eagerness to promote the economics of culture, appear increasingly forgetful of what creative expression truly means. Although the arts stand to benefit in many ways from the digital revolution, the circumstances of creative expression in the new international economy remain ambiguous. Conflict about moral rights on the international scene has found expres-

Conclusion 241 sion in many forms, but invariably, it reflects a fundamental opposition between the commercial and the personal dimensions of authorship rights. A resolution of this conflict will depend on discovering new ways of thinking about moral rights – neither as an impediment to the realization of economic rights, nor as a secondary order of rights, a mere sideshow to the economic privileges created for authors and owners of creative works by copyright. These perceptions of moral rights cannot do justice to what the idea of moral rights has to offer to authors, and to society. It is the role of moral rights to affirm the importance of human creativity in a world that is increasingly driven by technology and commerce on a global and impersonal scale. This opportunity should be recognized to be of great value to the international community, and, in the rush to promote the globalization of copyright industries, it should not be allowed to fall by the wayside. The Digital Age has brought new technical possibilities to creative expression, and, not unlike other periods of technological development in human history, it has also generated opportunities for new forms of creative expression.11 For example, technologies that have become as basic as digital recording have revolutionized the art of recorded music, while computer technologies have generated new kinds of “multimedia” works.12 Information and communications technology also bring the arts to a larger audience than ever before – though it is not entirely clear that an audience which is larger in sheer numbers translates into a more substantial intellectual community. By its very nature, the Digital Age has paradoxical consequences for intellectual creation. The Internet brings authors and audiences an opportunity for extensive communication and contact. However, as “users” of creative works are able to intervene in them directly through the manipulation of digital technology, with or without the consent of the original author, this developing relationship falls inevitably under the shadow of latent hostility. While technology seems to threaten creativity by bringing new dimensions of vagueness and confusion to traditional concepts of authorship and the creative work, it also presents exciting possibilities for new kinds of creative expression. This ambivalent situation relates to culture on a much larger scale. Technology presents a threat to culture worldwide by enforcing ever-greater homogeneity, as, for example, in the spread of the English language as the dominant language of the Internet. At the same time, it provides new ways of making the knowledge and expression of diverse cultures more widely accessible than ever before.13 The growth of a global society, bound together by technology, raises fundamental questions about the role of art and culture in this new environment, and in particular, the changing status of the individual author or artist. It is apparent that human creativity in the era of information technology has entered a period of great uncertainty. As technology has become an important source of worldwide economic growth, intellectual work, which

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gives technology its raison d’être, has enjoyed a surge of recognition. Above all, the arts have come to renewed prominence in the Digital Age because creative expression, along with other forms of intangible knowledge, provides the basis for economic growth in this new era. Apart from its other functions, art has now become the “raw material,” and artists, the “content providers,” for the digital revolution – a situation that writers, artists, and thinkers cannot fail to note. At some level, creative expression is certain to find itself in an ambivalent position, and at odds with the economic imperative of globalization. How compatible are the needs of the new economy with the values – whether aesthetic, intellectual, personal, or moral – that animate creative expression? How does the idea of art as “the lifelong construction of a state of wonder and serenity” fit with the rapid transfer and absorption of information in the digital world?14 To what extent does contemporary creativity continue to reflect this mysterious ideal of the role of art in human life, or has it, in turn, been irrevocably transformed by the combined impact of new technology and social forces?15 Global changes – technological and cultural transformation – have created a new environment for creative expression. They raise new issues concerning the interests of authors in their own work, the preservation of cultural heritage, and the role of the law in shaping, and being shaped by, human creativity. If it is to remain effective and vital, copyright itself must respond creatively to this transition, and renew its relevance. In its potential to affirm a non-commercial and humanistic vision of creativity and culture, copyright grasps an important opportunity. The concept of a moral right may help to realize this potential. Moral rights can sound a new note in the pursuit of a global harmony. But will they guide the existing cacophony of sounds towards a more pleasing alternative? This question about law is in truth a question about our cultural future. Can creative and personal authorship hold its own in the vast and impersonal universe of digital technology? Can the public work together with authors in the service of their shared interests? And if so, how can the moral rights of authors play a supporting role?

Appendix 1 Russian copyright timeline

1828 – copyright debuts as five articles in a censorship statute issued by the Tsar 1840s – extension of copyright from literary works to musical and artistic works 1857 – revisions to copyright law at the insistence of Pushkin’s widow; extension of copyright term to life of the author and 50 years after the author’s death 1887 – copyright is incorporated into the Civil Code as a property-based right 1911 – Russia’s first modern copyright legislation, based on systematic reforms, including the study of German copyright law; authors’ rights protected as sui generis rights

1917 – Russian Revolution 1918–22 – Bolshevik decrees on copyright, including nationalization of the works of authors, living and deceased 1922 – reintroduction of a property-based concept of copyright in accordance with the New Economic Policy (NEP) 1925 – first Soviet legislation on copyright; a model law to be followed by each of the Soviet republics; in significant respects, a covert return to the principles of 1911 1928 – adoption of a new law based on revision of the 1925 act; remains Soviet copyright legislation in force for more than three decades 1961 – major reforms to Soviet copyright legislation; Soviet Fundamentals of Civil Legislation; the first explicit recognition of an author’s “moral right,” though the exercise of neither the moral nor the economic rights of authors is “exclusively” reserved to authors 1964 – Soviet Fundamentals of Civil Legislation implemented in the RSFSR Civil Code 1973 – Soviet Union joins the Universal Copyright Convention (UCC); barring bilateral agreements, its first membership in an international copyright convention

244 Appendix 1: Russian copyright timeline 1976 – Soviet reforms to the Fundamentals of Civil Legislation of 1961, to conform to certain requirements of the UCC

1989 – Fall of the Wall 1991 – Soviet reforms to the Fundamentals of Civil Legislation, greatly reforming, expanding, and modernizing the treatment of copyright; unprecedented recognition for the rights of authors, including moral rights

1991 – Collapse of the Soviet Union 1992 – entry into force of the copyright provisions of the last Soviet Civil Code in the Russian Federation 1993 – adoption of the first post-Soviet legislation on copyright; replaces the 1991 Fundamentals and overrules incompatible provisions from past legislation 1995 – Russia joins the Berne Convention (and amends its Copyright Act accordingly) 2004 – amendments to Russian Copyright Act based on the WIPO Internet Treaties

Appendix 2 Table of statutes

Russian Law Ustav o Tsenzure [Censorship Statute], Appendix, Polozhenie o Pravakh Sochinitelei [Law on Creators’ Rights], Articles 135–9, April 22, 1828 (as amended 1830), Polnoe Sobranie Zakonov Rossiiskoi Imperii (Sob II) [Second Complete Collection of the Laws of the Russian Empire], Sanktpeterburg 1830, Vol. III, Item Nos 1979–80. Russian Civil Code (Svod Zakonov Rossiskoi Imperii), Polnoe Sobranie Zakonov Rossiiskoi Imperii (Sob II) [Second Complete Collection of the Laws of the Russian Empire], 1887, Volume X, Part 1, Section 420, Civil Laws. Russian Copyright Law of March 20, 1911, Polnoe Sobranie Zakonov Rossiiskoi Imperii (Sob III) [Third Complete Collection of Laws of the Russian Empire], Sanktpeterburg 1914, Vol. XXXI, Item No. 34, 935. Incorporated into the Civil Code (Svod Zakonov) as Sections 695 (1)–695 (15) of the Civil Laws (Volume X, Part 1, 1914 edn); Sobranie Uzakonenii i Rasporyazhenii Pravitel’stva [Collection of Regulations and Government Decrees], March 30, 1911, No. 61, Item 560. Copyright Act, USSR Laws 1925, No. 67 (January 30, 1925). Copyright Act, USSR Laws 1928, No. 246 (May 16, 1928). Law of the RSFSR on the Issuance of the Criminal Code of the RSFSR, VVS RSFSR, 1960, No. 40, Item 591 (October 27, 1960). Law of the RSFSR on the Issuance of the Code of Criminal Procedure of the RSFSR, VVS RSFSR, 1960, No. 40, Item 592. Fundamentals of Civil Legislation of the Union of Soviet Socialist Republics and the Union Republics, c. IV, VVS SSSR, 1961, No. 50, Item 525; reprinted in English in Legislative Acts of the USSR, Moscow: Progress Publishers, 1981, p. 137.* Sdobnikov, Y. (trans.), Soviet Civil Legislation and Procedure: Official Texts and Commentaries, Moscow: Foreign Languages Publishing House, 1962. RSFSR Civil Code of 1964, VVS RSFSR, 1964, No. 24.* Fundamentals of Civil Legislation of the USSR and the Republics, c. IV, Copyright, VSND i VS SSSR, 1991, No. 26, Item 773 (invalidated by

246 Appendix 2: table of statutes Resolution of the Supreme Soviet of the Russian Federation No. 5352-1 of July 9, 1993); reprinted, Moscow: De-Jure Press, 1991 [Russian only].* Russian Federation Law on the Legal Protection of Computer Programs and Databases, Law No. 3523-1 of September 23, 1992. Amended by: Federal Law No. 177-FL of December 24, 2002. Russian Federation Law on Copyright and Neighboring Rights (Zakon Rossiiskoi Federatsii “Ob avtorskom prave i smezhnykh pravakh”), Law No. 5351-1 of July 9, 1993, VSND i VS RF, 1993, No. 32, Item 1242; Rossiiskaia gazeta, August 3, 1993. Available in English translation, Russian Patent and Trademark Office, online: www.fips.ru/avpen/docs.htm [updated through legislative amendments of July 19, 1995]. Amended by: Federal Law No. 110-F3 of July 19, 1995, Rossiiskaia gazeta July 26, 1995. Federal Law No. 72-F3 of July 20, 2004. Constitution of the Russian Federation, December 12, 1993, Rossiiskaiai gazeta December 25, 1993, online: www.constitution.ru/en/10003000-01.htm.* Draft Versions of the Intellectual Property Provisions of the Civil Code of the Russian Federation: Federal Law Draft No. 84675-3, Introduced by State Duma Deputy, V. Komissarov, Chair of the State Duma Committee for Information Policy, April 23, 2001, online: http://legislature.ru/monitor/amendgk/846753.html [Russian only]. Private Law Research Centre, November 30, 2001; English translation by O.M. Kozyr and E.V. Luchits. Russian version only available online: www.internet-law.ru/law/projects/gk4i.htm.

International Law Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886, 1161 UNTS 3 (as revised at Paris on July 24, 1971 and amended in 1979), World Intellectual Property Organization (WIPO) online: www.wipo.int/treaties/ip/berne/index.html [Berne Convention]. Universal Declaration of Human Rights, GA Res 217 (III), UN GAOR, 3d Sess. Supp. No. 13, UN Doc A/810 (1948). Universal Copyright Convention, 943 UNTS 178 (1952 Geneva text, as amended at Paris on July 24, 1971) [UCC]. International Covenant on Economic, Social and Cultural Rights, December 16, 1966, 993 UNTS 3 (entered into force January 3, 1976). International Covenant on Civil and Political Rights, December 19, 1966, 999 UNTS 171 (entered into force March 23, 1976). Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C to the Marrakesh Agreement Establishing the World Trade Organization, April

Appendix 2: table of statutes 247 15, 1994, 33 ILM 1197 (entered into force January 1, 1995), WTO Homepage (Legal Texts), online: www.wto.org/english/tratop_e/trips_e/ t_agm0_e.htm [TRIPs Agreement]. Understanding on Rules and Procedures Governing the Settlement of Disputes, Annex 2 to the Agreement Establishing the World Trade Organization, April 15, 1994 (entered into force January 1, 1995), online: WTO Homepage (Legal Texts) www.wto.org/wto/legal/finalact.htm. WIPO Copyright Treaty (December 20, 1996), 36 ILM 65 (entered into force March 20, 2002), WIPO online: www.wipo.int/treaties/en/ip/wct/ [WCT]. WIPO Performances and Phonograms Treaty (December 20, 1996), 36 ILM 76 (entered into force May 20, 2002), WIPO online: www.wipo.int/ treaties/en/ip/wppt/ [WPPT].

Key to Russian abbreviations: VVS SSSR

Vedomosti Verkhovnogo Soveta SSSR (Gazette of the USSR Supreme Soviet) VSND i VS SSSR Vedemosti S’ezda narodnykh deputatov SSSR i Verkhovnogo Soveta SSSR (Gazette of the People’s Representatives of the USSR) [continuation of VVS SSSR] VVS RSFSR Vedomosti Verkhovnogo Soveta RSFSR (Gazette of the RSFSR Supreme Soviet) VSND i VS RSFSR/RF Vedemosti S’ezda narodnykh deputatov RSFSR/RF i Verkhovnogo Soveta RSFSR ((Register of the People’s Representatives of the RSFSR/RF) [continuation of VVS RSFSR] *Available in English translation on Russian legal database, Garant. A helpful bibliographical listing of Russian law reports may be found in M. Elst and K. Malfliet (eds), Intellectual Property in the Russian Federation: A System in Transition, Brussels: Bruylant, 1994.

Notes

Introduction 1 It is telling that Indian economist Amartya Sen does not hesitate to use the terms “freedom” and “development” interchangeably. See A. Sen, Development as Freedom, New York: Anchor Books, 2000 [originally published by Alfred A. Knopf, New York, 1999]. 2 U. Mattei, “Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems,” AJCL 45, 1997, 5, p. 7. 3 Lord Wedderburn of Charlton (ed.), Otto Kahn-Freund: Selected Writings, London: Stevens, 1978, c. 12, “On Uses and Misuses of Comparative Law.” 4 These include the minority traditions found within Western cultures themselves. See James Tunney’s interesting comments on the “meeting of the new and old” in the context of aboriginal peoples and their relationship with the “Digital Age”: J. Tunney, “EU, IP, Indigenous People and the Digital Age: Intersecting Circles?,” EIPR 20 (9), 1998, 335. 5 The relationship is explained in the Bharata Shastra: see M.T. Sundara Rajan, “Moral Rights in the Digital Age: New Possibilities for the Democratization of Culture,” Intl Rev L, Comp and Tech 16 (2), 2002, 187. 6 Other countries that have experienced especially intense problems are Albania, Belarus, and Romania, the poorest of the post-socialist countries. Nevertheless, wild instability remains characteristic of the Russian situation. 7 The phrase coined by Ellen Dissanayake, homo aestheticus, interestingly reflects her arguments about culture as an essential part of human existence, and no mere luxury. E. Dissanayake, Homo Aestheticus: Where Art Comes From and Why, 2nd edn, Seattle: University of Washington Press, 1995. 1 Copyright: the legal face of globalization 1 J. Bhagwati, In Defense of Globalization, New York: Oxford University Press, 2004. N. Klein, No Logo: Taking Aim at the Brand Bullies, Toronto: Knopf Canada, 2000. 2 The term was perhaps coined by Irish writer Oliver Goldsmith, who gave this title to a series of essays published between 1760 and 1762. See the entry in the Columbia Encyclopedia (6th edn), New York: Columbia University Press, 2001–04, online: www.bartleby.com/65/go/Goldsmit.html. 3 The terminology of the “Digital Age” is preferentially adopted in this work to signify the time, place, and nature of the transformation initiated by information and communications technology. The term and its significance receive an interesting analysis in J. Tunney, “EU, IP, Indigenous People and the Digital Age: Intersecting Circles?,” EIPR 20 (9), 1998, 335. Tunney’s emphasis on the

Notes 249 connections between modes of thought in ancient cultural traditions and the impact of new technology on the Western psyche is striking. 4 H.L.A. Hart, The Concept of Law, Oxford: Clarendon Press, 1961. 5 Professor Colin Tapper (Magdalen College, Oxford), comments in private correspondence. 6 C. Tapper, “Criminality and Copyright,” in D. Vaver and L. Bently (eds), Intellectual Property in the New Millennium: Essays in Honour of William R. Cornish, Cambridge: Cambridge University Press, 2004, c. 19, p. 268. L. Ray Patterson emphasizes, appropriately, that copyright was not a product of censorship and press control, as has been sometimes assumed. Censorship was a government policy unrelated to property concepts. . . . In short, copyright was not created because of censorship, nor would the absence of censorship have prevented its creation, but censorship did aid private persons, publishers and printers, in developing copyright in their own interest with no interference from the courts and little from the government. The early censorship regulations thus serve as a prelude to the development of copyright.

7

8

9

10 11

Patterson captures the essence of copyright as an unwitting tool of censorship – an observation that is worth reconsidering in the Digital Age. See L.R. Patterson, Copyright in Historical Perspective, Nashville, TN: Vanderbilt University Press, 1968, p. 21. Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886, 1161 UNTS 3 (as revised at Paris on July 24, 1971 and amended in 1979), World Intellectual Property Organization (WIPO) online: www.wipo.int/treaties/ip/berne/index.html [Berne Convention]. Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C to the Marrakesh Agreement Establishing the World Trade Organization, April 15, 1994, 33 ILM 1197 (entered into force January 1, 1995), WTO Homepage (Legal Texts), online: www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm [TRIPs Agreement]. Note that all member countries were allowed a transition period of one year, so that the effective date of entry into force was January 1, 1996: TRIPs Agreement, Article 65.1. However, the TRIPs Agreement does codify copyright norms in relation to some areas of new technology, including computer programs and databases, and rental rights in these. See TRIPs Agreement, Arts 10.1 and 10.2, and 11. Rochelle Cooper Dreyfuss and Andreas Lowenfeld are even stronger in their assessment of TRIPs: they argue that completion of the Uruguay Round was a miracle, a package deal with so large an agenda that no state or group of states, and no professional community, could fully grasp the significance of everything that was finally subsumed within the new General Agreement on Tariffs and Trade (GATT). They go on to identify the inclusion of intellectual property in the WTO as one of “two major breakthroughs” achieved by the system. See R.C. Dreyfuss and A.F. Lowenfeld, “Two Achievements of the Uruguay Round: Putting TRIPs and Dispute Settlement Together,” Va J Intl L, 1997, 275, pp. 276–7. M. Woodmansee, “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author’,” Eighteenth-Century Studies 17, 1984, 425. See the interesting discussion in C.M. Horton, “Protecting Biodiversity and Cultural Diversity under Intellectual Property Law: Toward a New International System,” J Env L and Lit 10, 1995, 1. The issue is also a theme of

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R. Coombe, “Intellectual Property, Human Rights and Sovereignty: New Dilemmas in International Law Posed by the Recognition of Indigenous Knowledge and Conservation of Biodiversity,” Ind J Global Legal Stud, 1998, 59. One cannot fail to note the rather bitter irony that, prior to globalization, the richness of cultural and ideological diversity was in any case not widely available to an intellectual or cultural community on the global scale. 12 He observes:

13

14

15 16

It is however a feature of technological protection that it is often vulnerable to technological counter-measures, especially when the protective technology is incorporated in marketed products. Thus no sooner had the industry devised a scheme of encryption to prevent the copying of DVDs containing copyright works, than hackers had published on the Internet code for programs to subvert them. (Tapper, 2004, p. 274) See Carl Dahlhaus’ description of the historical understanding of harmony in “Harmony,” part 1, “Historical Definitions,” S. Sadie and J. Tyrrell (eds), New Grove Dictionary of Music and Musicians, 2nd edn, Oxford: Oxford University Press, 2001; he comments further, “harmony considered as a structural principle is just as much an intrinsic part of ancient and medieval music as it is of the tonal system of modern times. The two-note consonance constituted the foundation of the old tonal system, the three-note consonance that of the new.” To satisfy musicians, it may be worth noting that the closest thing to two identical notes making “harmony” is an octave – the sounding of a note with the tone that, in scientific terms, is exactly twice the frequency of the original. The listener would hear this as “the same note” sounded above or below the original note. In his entry on the octave in the New Grove Dictionary of Music, William Drabkin clarifies its nature: To Western and most non-Western musicians, two notes an octave apart are in a sense alike, being different only in their relative registers and often seeming to blend into one another. This acoustical phenomenon has made the division of the frequency spectrum into octaves fundamental to both the understanding and the notation of music. The ancient Greeks, who recognized this phenomenon, called the octave harmonia, later diapaso¯n; Ptolemy, writing in the 2nd century, distinguished the octave from the other perfect intervals, calling it homopho¯nia (the 5th and 4th were called sympho¯nia). The use of the term “musical language” is applied here in the sense of a musical genre – for example, the different “musical languages” of jazz or classical music. Technically, however, genres often share the same musical language – classic jazz makes use of the same musical language, based on harmony, as Western classical music. On the other hand, Indian classical music is based on a “modal” language, which does not use the concept of harmony as it is usually understood in Western music. Modal music was the dominant form of medieval Europe, and it was largely replaced by harmonic systems based on the relative pitch of notes by the mid-seventeenth century – J.S. Bach’s “Well-Tempered Clavier” was a response to this transformation. Modal music might be familiar to modern listeners in the West through experimental works like Eric Satie’s “Gnossiennes” of “Gymnopédies,” or modal jazz like Miles Davis’ “Milestones.” For an excellent summary of the issues, see Catherine Schmidt-Jones’ Web pages on “Connexions,” online: http://cnx.rice.edu/content/m11639/latest/#s22. A point emphasized by C. Tapper, in private correspondence. The Statute of Anne of 1709–10 (8 Anne, c. 19), though not a copyright law in the modern sense, is traditionally considered to be the first UK copyright

Notes 251

17

18

19 20

21

statute: it introduced the innovation of protecting copyright as an author’s right, for the first time in British law. In the course of the eighteenth century, the English courts also developed some interesting cases on copyright, including authors’ non-commercial interests: see M. Rose, Authors and Owners: The Invention of Copyright, Cambridge, MA: Harvard University Press, 1993, pp. 67–129 (his interesting discussion ranges over three chapters). On the notion of “moral” rights in the UK copyright tradition, see the two seminal cases of Millar v. Taylor (1769), 4 Burr 2303, 98 Eng Rep 201 (KB), which recognized a perpetual copyright based in a natural rights approach, and Donaldson v. Becket (1774), 4 Burr 2408, 1 Eng Rep 837 (HL), which reversed this decision a mere five years later. William Patry draws attention to the significance of this decision for American copyright tradition: it allowed the US Supreme Court to limit American copyright law to a purely statutory scope, fundamentally rejecting the idea of copyright as a natural right of the author. See W.F. Patry, Copyright Law and Practice (Bureau of National Affairs 1994, 2000), online: http://digital-lawonline.info/patry/patry1.html. For example, his situation receives cursory treatment on the Internet: The Victorian Web, Literature, History and Culture in the Age of Victoria, online: www.victorianweb.org/authors/dickens/pva/pva76.html, www.jhtl.org/BookReviews/2004-05/Horbaczewski.pdf. See also F. Kaplan, Dickens: A Biography, New York: Morrow, 1988, p. 91, who comments in passing on Dickens’ support for the improvement of copyright protection in the UK and abroad. The movement was originally directed towards literary works, and later came to include artistic works; see S. Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886–1986, Centre for Commercial Law Studies, London: Queen Mary College, Kluwer, 1987, para. 2.9. This situation receives a detailed treatment in Ricketson (n. 18) c. 1; for a diagram of bilateral conventions in force as of 1886, see Ricketson, p. 38. See Ricketson (n. 18), paras 2.7–2.9. The acronym of “ALAI,” by which the Association is commonly known, is derived from its French name, the Association literaire et artistique internationale, as it came to be known in 1883, when its membership was extended to artists. Emile Zola, the celebrated French writer, was its first president. Turgenev was present at the literary meeting organized by the French government as part of the Universal Exhibition of 1878 in Paris, at which many of the foundations for the Berne Convention were laid. These included the ideas of authorship rights as proprietary rights, the possibility of perpetual legal protection for authors, and the idea of national treatment. Ricketson mentions that the Association appointed a Committee of Honour in 1879, which included two extraordinary Russian authors, Dostoevsky and Tolstoy. In the context of copyright law, whose actual content is determined by national statutes, national treatment means that a work by an author from any country which is a member of the Berne Convention will be treated on par with works by the nationals of the country where the legal matter arises. Given the considerable variations of copyright protection among different countries, even within the Berne Union, it is worth noting that national treatment does not mean equal treatment for all works in all jurisdictions, regardless of nationality. The question of national treatment receives an interesting update in ITAR-TASS Russian News Agency v. Russian Kurier, 153 F3d 82, 47 USPQ2d 1810, 26 Media L Rep 2217 (August 27, 1998), where the American court grapples with the issue of which national law should be applied in situations of inter-jurisdictional copyright conflicts. The revisions are detailed by Ricketson (n. 18), c. 3. It is worth noting the introduction of moral rights for authors, which were adopted at the Rome Conference of 1928: Ricketson para. 3.28.

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22 See M. Nimmer, “Implications of the Prospective Revisions of the Berne Convention and the United States Copyright Law,” Stan L Rev 19, 1967, 499, p. 499; he comments on Berne’s status as “one of the earliest and in some ways most successful ventures into world law.” 23 Membership became effective on March 1, 1989. See Berne Notification No. 121, WIPO online: www.wipo.int/edocs/notdocs/en/berne/treaty_berne_121. html. It should be duly noted, however, that the Berne Convention was not America’s first foray into international copyright: it was instrumental in developing the Universal Copyright Convention, 943 UNTS 178 (UCC) (1952 Geneva text, as amended at Paris on July 24, 1971) [UCC], of which it has been a member since 1954. 24 Ricketson describes the founding of WIPO and the earlier institutions which it replaced: see Ricketson (n. 18), para. 3.65. 25 Ricketson (n. 18), paras 3.49–68. 26 For a discussion of the participation of developing countries in the Berne Union and the problems that arose during the 1967 Stockholm conference, see the detailed treatment in Ricketson (n. 18), paras 11.1–48. 27 The idea also enjoyed some resurgence in the period surrounding the adoption of TRIPs: see the comments in R.L. Gana, “Has Creativity Died in the Third World? Some Implications of the Internationalization of Intellectual Property,” Denv J Intl L and Poly 24, 1995, 109, pp. 121–3. Jorg Reinbothe and Silke von Lewinski point out that the “perceived ‘risk’ of a shift of international lawmaking in the field of author’s rights and neighboring rights from WIPO to GATT (later WTO),” was an important factor contributing to WIPO’s assumption of a mandate to legislate on digital issues. J. Reinbothe and S. von Lewinski, “The WIPO Treaties 1996: Ready to Come into Force,” EIPR 24 (4), 2002, 199; the article is a precursor to a book-length study, J. Reinbothe and S. von Lewinski, The WIPO Treaties 1996: The WIPO Copyright Treaty and The WIPO Performances and Phonograms Treaty – Commentary and Legal Analysis, London: Butterworths, 2002. 28 For example, see D. Gervais, “The Internationalization Of Intellectual Property: New Challenges from the Very Old and the Very New,” Fordham IP, Media and Ent LJ 12, 2002, 929, pp. 955–76. 29 The prevalence of bloc-voting in WIPO, as in the United Nations system at large, prevented major changes to the Berne system and presented a potential source of problems for the United States in the drive to modernize its intellectual property legislation. See Dreyfuss and Lowenfeld (n. 9), pp. 294–5: in their view, “WIPO has tended to operate through coordinated group voting rather than through genuine consensus building. For at least the last 15 years, politicization of deliberations in WIPO has interfered with its law making efforts.” In contrast, Gana sees the history of WIPO more favorably, arguing that the institution represents “a certain level of real consensus.” See R.L. Gana, “Has Creativity Died in the Third World? Some Implications of the Internationalisation of Intellectual Property,” Denv J Intl L and Poly 24, 1995, 109, p. 121. 30 For a detailed discussion of these issues, see R.L. Gana, “Prospects for Developing Countries Under the TRIPs Agreement,” Vand J Transnatl L 29, 1996, 735, pp. 739–42; and R.M. Gadbaw and R.E. Gwynn, “Intellectual Property Rights in the New GATT Round,” in T.J. Richards and R.M. Gadbaw (eds), Intellectual Property Rights: Global Consensus, Global Conflict? Boulder, CO: Westview Press, 1988, 38, p. 48. 31 WTO terminology on trade sanctions is, “the suspension of trade concessions.” Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), Annex 2 to the Agreement Establishing the World Trade Organization (n. 8), Arts 2, 22 (“Suspension of Concessions”). It should be noted that, under Article

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32 33

34 35

36

37 38

39

40 41

42

64.3 of the TRIPs Agreement, the Council for TRIPs may also have a role to play in dispute settlement; but the implications of this provision remain unclear. See Dreyfuss and Lowenfeld (n. 9). Digital Millennium Copyright Act, Pub L No. 105–304, 112 Stat 2860 (October 28, 1998); the DMCA criminalizes interference with “anti-circumvention measures” and “digital rights management” information, which helps to track the provenance of copies of the work. Under the Berne Convention, computer programs and, eventually, databases were protected under Article 2.1, which, by the traditional method of copyright law, considered them to be analogous to “literary and artistic” works. S. Fraser, “Berne, CFTA, NAFTA and GATT: The Implications of Copyright Droit Moral And Cultural Exemptions in International Trade Law,” Hastings Comm and Ent LJ 18, 1996, 287 emphasizes the conflict between the US, France, and Canada, in relation to film. See Dreyfuss and Lowenfeld (n. 9). A series of essays from India confirms the ambivalence of developing countries towards TRIPs negotiations: for example, see K.R.G. Nair and A. Kumar, Intellectual Property Rights, UDCCS Seminar Papers Series No. 1, New Delhi: Allied Publishers, 1994, p. 11. A current list of WTO members can be found on the organization’s web site, online: www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm. See M.J. Trebilcock and R. Howse, The Regulation of International Trade, London: Routledge, 1995, pp. 301–22: they trace the post-war evolution of theories of development. One of the ironies of the demise of socialism in Eastern Europe, which does not escape their observation, is the current international predominance, verging on exclusivity, of market-based economics, and therefore, of trade-based models of development. Understanding on Rules and Procedures Governing the Settlement of Disputes, Annex 2 to the Agreement Establishing the World Trade Organization (above), online: www.wto.org/wto/legal/finalact.htm [DSU]. In its submissions, India pointed out that developing countries’ understanding of TRIPs requirements should be weighed in the interpretation of the TRIPs Agreement under the DSU, but the panel did not respond to this argument. See India – Patent Protection for Pharmaceutical and Agricultural Chemical Products (Complaint by the United States) (1997), WTO Doc. WT/DS50/R (Panel Report) para. 6.17, online: www.wto. org/english/tratop_e/dispu_e/distab_e.htm. The case is cursorily summarized in M.J. Adelman and S. Baldia, “Prospects and Limits of the Patent Provision in the Trips Agreement: the Case of India,” Vand J Transnatl L 29, 1996, 507, pp. 525–9. This information is summarized by M. Ficsor, “The Past, Present and Future of Copyright in the European Socialist Countries,” RIDA 118, 1983, 33, p. 57 in a useful chart. Russia was among the first countries to become interested in the Berne Convention, and the Tsar even organized a conference to discuss Russia’s involvement in international copyright matters in 1906: see Ricketson (n. 18) para. 3.9 and accompanying notes. Notable differences between Berne and the UCC include the permissibility of formalities under the UCC – such as the requirement that copyright be registered, a mainstay of the US copyright system – and the relatively shorter period of protection required by the UCC. The UCC does not recognize moral rights, and it makes some provision for the possibility of compulsory licensing for the purpose of translation of works in developing countries. The period of transition has been set at five years for developing and transitional countries, and 11 years for least-developed countries. With regard to product patent protection, developing countries are generally allowed a ten-year

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transition period. See Part VI of the TRIPs Agreement on Transitional Arrangements. For a consideration of some of the issues arising as these transitional periods expire, see T.N. Samahon, “TRIPs Copyright Dispute Settlement after the Transition and Moratorium: Nonviolation and Situation Complaints against Developing Countries,” L and Poly in Intl Bus, Spring 2000, 1051. 43 See Part VI of the TRIPs Agreement on “Transitional Arrangements.” 44 See Ricketson (n. 18), paras 11.1–4; 11.7. Ricketson feels that: While developing nations did not emerge as an identifiable bloc within the Berne Union until after 1945, from the earliest time the Convention had to take account of the relative differences and levels of development of its members. In this regard, the Convention was a progressive instrument, which was seen as evolving steadily towards a high and comprehensive level of protection for authors. . . . [I]t is . . . true to say that each revision of the Convention saw a steady increase in the level of protection required, and this made it an instrument that is increasingly less congenial to the interests of developing countries. (Ricketson, para. 11.4) 45 Adopted in 1967, later revised successfully in the 1971 Paris revision conference: see Ricketson (n. 18) paras 3.49–68, on the Stockholm Protocol. But see paras 3.64 and 11.34–106, especially para. 11.106: the provisions of the Stockholm Protocol were subject to major revisions at the Paris conference of 1971. At that time, they were greatly watered down, and few countries have actually taken advantage of them. However, Ricketson argues that their purpose and achievement is something more subtle – the achievement of a more congenial environment for cooperation on intellectual property matters between developed-world authors and developing-country governments – and that the Paris approach has actually been quite successful in establishing a new environment for international copyright transactions and negotiations. 46 For example, see the comments in Trebilcock and Howse (n. 38). 47 For example, see the interesting discussion of the “traditional rationales” supporting patent protection, with an assessment of their validity for developing countries, in E. Henderson, “TRIPs and the Third World: the Example of Pharmaceutical Patents in India,” EIPR 19 (11), 1997, 651, pp. 654–7; see also A.S. Oddi, “The International Patent System and Third World Development: Reality or Myth,” Duke LJ 5, 1987, 831. 48 Online: www.fsf.org/. 49 For example, see the political explanation of US attitudes towards piracy in Russia and China, two of the world’s top “problem countries,” in C. Neigel, “Piracy in Russia and China: A Different US Reaction,” L and Contemp Probs 63, 2000, 179. 50 See A. Watson, Roman Law and Comparative Law, Athens: The University of Georgia Press, 1991, especially c. 17 and c. 19. He explores the interesting question of Roman law influence on the development of modern European private law, and in particular, the civil codes. 51 The process is illustrated in an article by T.S. Krishnamurti, “Copyright – Another View,” Bull Copyrt Socy USA 15 (3), 1968, 217. See also Ricketson (n. 18), para. 11.7, on India’s growing role in international copyright during the 1960s. 52 W.P. Alford, To Steal a Book Is an Elegant Offense: Intellectual Property Law in Chinese Civilization, Studies in East Asian Law, Harvard University, Stanford, CT: Stanford University Press, 1995. 53 Tunney (n. 3). 54 The question of US influence in the creation of the WIPO Internet Treaties is an interesting issue; in the post-TRIPs world, the relationship between the Amer-

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56

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58

59 60 61

62

ican copyright lobby and WIPO is a close one. See P. Samuelson, “The U.S. Digital Agenda at WIPO,” Va J Intl L 37, 1997, 369. China acceded to WTO membership in 2001. Intellectual property remains a significant thorn in its side: China, with Russia, is currently considered to be one of the world’s worst nations for copyright piracy. See the comments by Neigel (n. 49). See also the update on the website of the US Embassy in Japan: “China Has Made Progress on WTO Commitments, But Problems Remain,” 2005, online: tokyo.usembassy.gov/e/p/tp-2004121503.html. North American Free Trade Agreement, December 17, 1992, 32 ILM 289 (entered into force January, 1 1994), Chapter XVII on Intellectual Property; Office of NAFTA and Inter-American Affairs, online: www.mac.doc.gov/nafta/naftatext. html [NAFTA]. The area of pharmaceuticals, and Canada’s uncomfortably utilitarian approach to drug prices, has long been a matter of disapproval in the United States. It has led to Canada’s inclusion, alongside countries like Azerbaijan, Uruguay, Bulgaria, and Thailand, in the US Trade Representative’s “Special 301” Watch List countries in violation of their intellectual property obligations. See, online: www.ustr.gov/Document_Library/Reports_Publications/2004/2004_Special_ 301/2004_Special_301_Report_Watch_List.html. See also the recent comments of the Pharmaceutical Research and Manufacturers Association (PhRMA), online: www.phrma.org/mediaroom/press/releases/03.05.2004.989.cfm (May 3, 2004). For a list of regional organizations in the developing world that have, or are building, intellectual property agreements see the WIPO Guide to Intellectual Property Worldwide, online: www.wipo.int/about-ip/en/ipworldwide/abbrev. htm. Africa boasts two such groupings, while the Association of South East Asian Nations has developed the ASEAN Framework Agreement on Intellectual Property Cooperation; the Andean Community also has developed measures on intellectual property, online: www.comunidadandina.org/ingles/politics/ intelec.htm. The WIPO page has links to these organizations. Intellectual property protection was not explicitly provided for in the treaty establishing the South American Common Market (Mercado Común del Sur, or MERCOSUR), a multilateral trade accord between the United States and a number of South American countries, but the development of a framework for intellectual property protection is understood to be part of this trade regime. See W.S. Vicente, “Questionable Victory for Coerced Argentine Pharmaceutical Patent Legislation,” U Pa J Intl Econ L 19, 1998, 1101, pp. 1111–12; see also M.J. Anderson, A.J.P. Ellard and N. Shafran, “Intellectual Property Protection in the Americas: The Barriers Are Being Removed,” J Proprietary Rts 4 (4), 1992, 2, p. 6 who point out that, “[a]lthough a uniform industrial property law is not explicitly in the treaty, it is an expected result; it is recognized as necessary to give effect to the treaty’s elimination of inter-regional barriers to trade goods and services.” Unfortunately, these processes are too new to offer much substance to international regulation in this field. See n. 56. See the discussion surrounding this issue in D. Vaver, “Canada’s Intellectual Property Framework: A Comparative Overview,” IPJ 17, Feb. 2004, 125. For a useful summary of the situation surrounding EU membership, including a list of current member states, countries being considered for accession, aspirant countries, and other states, see the EU website: http://europa.eu.int/abc/governments/index_en.htm. See, for example, the coverage of the European constitutional crisis in The Economist magazine, May 2005. For ongoing coverage see BBC News Online,

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64

65 66

67

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including C. Morris, “EU Leaders Play Down Expansion,” June 13, 2005: http://news.bbc.co.uk/1/hi/world/europe/4088296.stm, and links. WCT and WPPT. WIPO Copyright Treaty, online: www.wipo.int/treaties/ en/ip/wct/; WIPO Performances and Phonograms Treaty, online: www.wipo. int/treaties/en/ip/wppt/. The WCT entered into force in March 2002, the WPPT in May of the same year. Council Directive 87/54/EEC on the legal protection of topographies of semiconductor products (16/12/1986) OJ L024/36, Council Directive 91/250/EEC of May 14, 1991 on the legal protection of computer programs (17/05/1991), OJ L122/42; Council Directive 92/100/EEC of November 19, 1992 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (27/11/1992), OJ L346/61; Council Directive 93/83/EEC of September 27, 1993 on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (06/10/1993), OJ L248/15; Council Directive 93/98/EEC of October 29, 1993 harmonizing the term of protection of copyright and certain related rights (24/11/1993), OJ L290/9; Directive 96/9/EEC of the European Parliament and of the Council of March 11, 1996 on the legal protection of databases (27/03/1996), OJ L77/20, and Directive 2001/29/EEC of the European Parliament and of the Council of May 22, 2001 on the harmonization of certain aspects of copyright and related rights in the information society (22/06/2001), OJ L167/10; Directive 2001/84/EC of the European Parliament and of the Council on the resale right for the benefit of the author of an original work of art (27/09/2001), OJ L272/32, Directive 2004/48/EC of the European Parliament and of the Council on the enforcement of intellectual property right (29/04/2004), OJ L195/16. Online: http://europa.eu.int/comm/internal_market/ copyright/documents/documents_en.htm. The situation is briefly described from a bureaucratic point of view by the WTO, online: www.wto.org/english/thewto_e/whatis_e/tif_e/org3_e.htm. Copyright, and intellectual property more generally, is considered a key aspect of the “internal market” on which all EU economic policy is built. See A.A. Caviedes, “International Copyright Law: Should the European Union Dictate Its Development?,” Boston U Intl LJ 16, 1998, 165, pp. 210–11. See M.T. Sundara Rajan, “Moral Rights and Copyright Harmonization: Prospects for an ‘International Moral Right’?,” paper presented at the Annual Conference of the British and Irish Law, Education, and Technology Association (BILETA), April 2002, Free University Amsterdam (an updated version of the paper is currently pending submission to the European Intellectual Property Review). Political differences among the member countries of the EU have interfered with the harmonization of this aspect of copyright law, so that it is, as yet, very far from being integrated into the harmonization scheme. The EU’s longstanding concerns about this area and the dangers of leaving it outside the harmonization process are discussed in Commission of the European Communities Green Paper on Copyright and Related Rights in the Information Society, 19.07.1995, COM (95) 382 final, VII. It is to be expected that another attempt may soon be made. For example, see the comments on Russia’s desire and prospects for WTO accession in “Vladimir Putin’s long, hard haul,” Special Report in The Economist, May 18–24, 2002, 24, p. 25. The article points out that Russia is unlikely to succeed in its bid for WTO membership “before the middle of the decade.” The only possible exceptions to this situation might be the post-socialist countries which have been hoping to join the EU, for whom conformity with European legislation is an equal priority. For example, see the discussion of the EU influence on transitional countries in S. von Lewinski, “Copyright in Central and Eastern

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70 71 72

73 74 75 76

77

78

79

80

81

82

Europe: An Intellectual Property Metamorphosis,” Fordham IP, Media and Ent LJ 8 (I), 1997, 39, pp. 45–51. Nevertheless, the prospect of EU accession has at times seemed chimeric to many Central and Eastern European countries, as accession paradoxically seems to grow more elusive with the passage of time. The true predecessor to WIPO was BIRPI (Bureaux Internationaux Réunis pour la Protection de la Propriété Intellectuelle), founded in 1893 by a merger of two independent agencies overseeing the Berne Convention and the Paris Convention for the Protection of Industrial Property, respectively. See Ricketson (n. 18), para. 13.1. For example, see Article 68 of the TRIPs Agreement (n. 8). An Agreement on cooperation between the WTO and WIPO was concluded on December 22, 1995, and is available on the WTO website, online: www. wto.org/english/tratop_e/trips_e/wtowip_e.htm. WIPO’s focus on bringing greater simplicity to international intellectual property regulation is apparent in the discussion of its mandate on its website: http://www.wipo.org/about-wipo/en/index.html?wipo_content_frame ⫽/about-wipo/en/gib.htm. See n. 63; Reinbothe and von Lewinski (n. 27). For example, see Article 8 of the WIPO Copyright Treaty (n. 63). Reinbothe and von Lewinski (n. 27), p. 208. Included in 1996, the Treaties were scheduled to come into effect only after a minimum number of signatories had committed themselves to accession. This was achieved in 2002. See WIPO press releases on entry into force, online: www.wipo.int/wilma/pressinfo-en/200202/msg00003.html. Thirty signatories were required for each, with Honduras completing the WCT (see online: http://usinfo.org/usia/usinfo.state.gov/topical/econ/ipr/gabondec6.htm), and Gabon the final WPPT signatory. See DMCA (n. 33). It is not clear whether the DMCA was the inspiration behind the WIPO provisions on anti-circumvention technologies, or if, as a result of US influence, the WIPO process mirrored the DMCA. See Samuelson (n. 54). The main international instrument for performers’ rights is the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, October 26, 1961, WIPO Treaties and Contracting Parties, online: http://www.wipo.int/treaties/en/ip/rome/trtdocs_wo024.html, at Art. 14. The language of the Treaty exactly mirrors Article 6bis in the context of audio performances; is important to note, though, that the moral right for performers does not extend to “audiovisual” performances, namely, performances used in films. It is worth noting that films have provided some of the most fertile ground for moral rights litigation, and there are a number of celebrated international cases involving moral rights in “audiovisual” works. At least one of these, the Shostakovich case, involved moral rights in sound recordings, and therefore, potentially, musical performances. Dmitry Shostakovich et al. v. Twentieth CenturyFox Film Corporation, 196 Misc 67; 80 NYS 2d 575, 77 USPQ 647 (June 7, 1948). See discussion Chapter 5, notes 65–70 and accompanying text. Art. 9.1 of TRIPs states: “Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom.” In effect, the provision excludes moral rights for the WTO dispute-settlement process, so that these rights, in contrast to other aspects of copyright law, are not “enforceable” within the TRIPs system. The American approach to moral rights and its interplay with the WIPO – Performances and Phonograms Treaty receives a detailed treatment in

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M.T. Sundara Rajan, “The ‘New Listener’ and the Virtual Performer: The Need for a New Approach to Performers’ Rights,” in M. Geist (ed.), In the Public Interest: The Future of Canadian Copyright Law, Toronto: Irwin Law/Creative Commons, 2005, 309. 83 See n. 63. 84 Interestingly, a number of post-socialist jurisdictions have ratified the Internet Treaties. For example, members of the Internet Treaties include the Czech Republic, Bulgaria, and Hungary; CIS members are Belarus, Kyrgyzstan, Ukraine, and the Republic of Moldova. A list of contracting parties to the two treaties may be found on the WIPO website, online: http://www.wipo.int/ treaties/en/. The Russian Federation remains a notable exception, but it has included moral rights for performers in its copyright law, suggesting that it is seriously interested in future membership: Art. 37 of the Russian Federation Law on Copyright and Neighboring Rights (Zakon Rossiiskoi Federatsii “Ob avtorskom prave i smezhnykh pravakh”), Law No. 5351-1 of July 9, 1993, VSND i VS RF, 1993, No. 32, Item 1242; Rossiiskaia gazeta, August 3, 1993. Available in English translation, Russian Patent and Trademark Office, online: www. fips.ru/avpen/docs.htm [updated through legislative amendments of July 19, 1995]. Amended by Federal Law No. 110-F3 of 19 July 1995, Rossiiskaia gazeta July 26, 1995; and Federal Law No. 72-F3 of July 20, 2004. 2 Copyright and freedom in the “Digital Age” 1 “The sharp edge of a razor is difficult to pass over; thus the wise say the path (to the Self ) is hard.” From Max Muller’s translation of the Katha Upanishad, which became well known in the West as the epigraph to Somerset Maugham’s classic novel, The Razor’s Edge. See F. Max Muller, The Upanishads, Whitefish, MT: Kessinger Publishing, 2004 (originally published by Oxford: Oxford University Press, 1900); and W. Somerset Maugham, The Razor’s Edge, New York: Vintage International, 2003 (originally published by New York: Doubleday, 1944). 2 Of course, the system is also based on the idea that the publisher bears most of the risks associated with the commercial failure, especially in the case of unknown authors, and makes a contribution to the quality of the finished work through the process of editing. However, the balance between risk and benefit may be skewed, and also varies greatly across industries – for example, the circumstances of the book publishing, recorded music, and film industries are all different. For an interesting perspective on the role of publishers in developing countries, see N. Kumar, “Cultural Imperialism and Third World Publishing,” Copyright 17, 1983. 3 The terminology of “non-commercial” interests seems more suitable: the rights seek to protect the personal interests of authors and their work, and through them, the general interests of the public in the preservation of its own cultural heritage. See M.T. Sundara Rajan, “Moral Rights and the Protection of Cultural Heritage: Amar Nath Sehgal v. Union of India,” Intl J Cult Prop 10 (1), 2001, 79. However, moral rights can have serious economic consequences; and indeed, their potential economic impact on copyright transactions is very likely among the most important reasons why they are so controversial. Some of these possibilities are discussed in H. Hansmann and M. Santilli, “Authors’ and Artists’ Moral Rights: A Comparative Legal and Economic Analysis,” J Legal Stud 26, 1997, 95. 4 For example, they are at the heart of French law: see E.W. Ploman and L.C. Hamilton, Copyright: Intellectual Property in the Information Age, London: Routledge and Kegan Paul, 1980, p. 108. This view is not free of controversy, however, and Alain Strowel feels that they are not as important in French law as

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6

7

8 9 10

11 12

13

is generally assumed to be the case: see A. Strowel, Droit d’auteur et copyright: Divergences et convergences, Etude de droit comparé, Brussels: Bruylant, 1993, pp. 81–171. The question of moral rights as a possible justification for common-law copyright is examined in an article by Stephen Breyer; he is skeptical, but his arguments require reassessment in the current technological context. See S. Breyer, “The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies and Computer Programs,” Harv L Rev 84 (2), 1970, 281. The quality of mind reflected in the practices of that age is beautifully described by Marshall McLuhan in The Gutenberg Galaxy: The Making of Typographic Man, Toronto: University of Toronto Press, 1962, p. 106. “Probably any medieval person would be puzzled at our idea of looking through something. He would assume that the reality looked through at us, and that by contemplation we bathed in the divine light, rather than looked at it.” The quote is included in the treatment of the subject on a website called “The Electronic Labyrinth,” maintained by Canadian authors Christopher Keep, Tim McLaughlin, and Robin Parmar, and which is dedicated to the exploration of new creative ideas through the “hyperlink,” online: www.iath.virginia.edu/elab/ hfl0263.html. The rise of the print medium can be traced from the establishment of Caxton’s printing press in 1476, and the spread of this technology throughout Europe. See the comments in B. Kaplan, An Unhurried View of Copyright, James S. Carpenter Lectures, 1966, New York: Columbia University Press, 1967, pp. 2–4 and L.R. Patterson, Copyright in Historical Perspective, Nashville, TN: Vanderbilt University Press, 1968, pp. 20–2. David Vaver expresses the inherent paradox in copyright protection as the proposition that “ideas are free as the air,” but copyright restricts our ability to use them. D. Vaver, Intellectual Property Law, Essentials of Canadian Law Series, Toronto: Irwin Law, 1997, p. 1. For example, see the discussion of early press censorship in England in Patterson (n. 6), c. 2. I am indebted to Professor Colin Tapper for drawing my attention to this point in private correspondence. See, for example, the comments in J. Ralite, “Vers un droit d’auteur sans auteurs,” Le Monde diplomatique, March 1998, 5, p. 6. An English version of the article is available: B. Wilson (trans.), “Are authors about to lose their rights?” Special issue on “The Dangers of the Multilateral Agreement on Investment,” Le Monde diplomatique, online: http://mondediplo.com/1998/03/09maira. M. Ralite is Senator and Mayor of Aubervilliers, and President of the Etats généraux de la culture. The issue receives a detailed consideration in J.C. Ginsburg, “Four Reasons and a Paradox: The Manifest Superiority of Copyright over Sui Generis Protection of Computer Software,” Colum L Rev 94, 1994, 2559. The position is supported by Richard Stallman and his “Free Software Foundation,” founded in 1985: see www.fsf.org/. The free availability of programming “code” is the essence of the movement, but its aims are broader: see “A Brief History of the Free/Open Source Software Movement,” online: www.openknowledge. org/writing/open-source/scb/brief-open-source-history. html. Patent protection depends on a lengthy and complex application process, and the granting of the patent leads to a relatively short period when the monopoly can be enjoyed – no more than 20 years. In contrast, copyright protection is automatically available upon the creation of a work, and it has historically enjoyed an extended period of protection for the lifetime of the author and 50 years after his or her death. With the leadership of the European Union, the international standard has now been extended to the lifetime of the author and

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16

17

18

19 20

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70 years after his or her death. The salient points of patent protection are concisely summarized in Vaver (n. 7), pp. 113–72. The idea of making software patentable in Europe was pursued through the introduction of a Software Patents Directive, following up on earlier directives issued by the European Union in the area of copyright law, including the copyright directive on software. The Software Patents Directive faced intense public opposition, and, following a vote by the European Parliament to reject the draft proposed by the European Commission, the project has been shelved for the time being. See Council Directive 91/250/EEC of May 14, 1991 on the legal protection of computer programs (17/05/1991), OJ L122/42; “Software patent bill thrown out,” BBC News Online, July 6, 2005: http://news.bbc.co.uk/2/hi/ technology/4655955.stm. L. Sherriff, “EU Parliament bins software patent bill,” The Register Online, July 6, 2005: www.theregister.co.uk/2005/07/06/ eu_bins_swpat/. In the United States, the idea of business method patents was first approved in State Street Bank & Trust Co v Signature Fin Group, Inc 149 F3d 1368 (Fed Cir 1998). The status of software patenting in the EU and US is helpfully compared by R. Bray, “The European Union ‘Software Patents’ Directive: What Is It? Why Is It? Where Are We Now?,” Duke L and Tech Rev, 2005, 11. The development of digital music, and in particular, the role of DJs, was among the themes of a recent radio program by the Canadian Broadcasting Corporation (CBC): “The Wire: The Impact of Electricity on Music,” online: www.cbc.ca/thewire (broadcast February 2005, re-broadcast July 2005), produced by Paolo Pietropaolo. The digital collection of St Petersburg’s “Hermitage” Art Gallery is one example of a venerable institution from a “transitional” country embracing technology, online: www.hermitagemuseum. org/fcgibin/db2www/browse.mac/category?selLang⫽English. The first motion picture actually dates from 1895. It is interesting to note that the role of film in international copyright is a conservative one; notably, the idea of moral rights in film is strongly resisted by the world’s most influential film lobby, Hollywood. For a detailed discussion of the issues involved in Hollywood’s political rejection of moral rights, see S. Fraser, “Berne, CFTA, NAFTA & GATT: The Implications of Copyright Droit Moral and Cultural Exemptions in International Trade Law,” Hastings Comm and Ent LJ 18, 1996, 287, and the interesting comments by D. Nimmer, “Conventional Copyright: A Morality Play,” Ent L Rev 3, 1992, 94. For a consideration of similar issues in an altogether different arena, see the interesting discussion of the creative possibilities inherent in user manipulation of computer games – known simply as “mods” – in Z. Rosen, “Mod, Man, and Law: A Reexamination of the Law of Computer Game Modifications,” Chi-Kent J IP 4, 2005, 196. Rosen argues that copyright law is significantly out of date in its approach, and provides an overview and critique of relevant US case law. Canadian pianist Glenn Gould was a noted pioneer in the exploration of new possibilities brought to music by digital technology. See G. Payzant, Glenn Gould: Music and Mind, 1st edn, Toronto: Van Nostrand Reinhold, 1978; note that subsequent editions of the book have expanded treatment of some aspects of Gould’s thought, and reduced others. The theme receives treatment from a legal perspective in M.T. Sundara Rajan, “Moral Rights in the Digital Age: New Possibilities for the Democratization of Culture,” Intl Rev L, Comp and Tech 16 (2), 2002, 32. For example, there is the anti-copyright, or “Copyleft” movement. See n. 12 above, and, in particular, the definition in The GNU Operating System, online: www.gnu.org/copyleft/copyleft.html. In some areas, the EU has moved ahead of the United States and usurped leader-

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22 23 24

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27 28

ship on certain issues. A notable example is copyright term, where the EU level of protection has been extended to the lifetime of the author and 70 years after his or her death: Council Directive 93/98/EEC of October 29, 1993 harmonizing the term of protection of copyright and certain related rights (24/11/1993), OJ L290/9, Article 1. Due to legal and political objections in the US, the prospect of extending copyright term to this level has been highly controversial, with the US Supreme Court finally indicating that Constitutional provisions will not be an obstacle: see Eldred v. Ashcroft, 537 US 186 (2003). The Constitution of the United States, Article I, Section 8, Clause 8 provides that the purpose of copyright protection is to “promote the Progress of Science and useful Arts.” The implications of this clause are discussed in S. Fraser, “The Conflict between the First Amendment and Copyright Law and its Impact on the Internet,” Cardozo A and Ent LJ 16, 1998, 1. The role of the US in the development of the WIPO Internet Treaties is discussed by P. Samuelson, “The U.S. Digital Agenda at WIPO,” Va J Intl L 37, 1997, 369. It has subsequently been mired in controversy over its influence on a new Broadcasting Treaty that WIPO is developing. The Broadcasting Treaty seeks to guarantee to broadcasters the right to retain control of their signals for 50 years, and in the process, implements controversial provisions on “anticircumvention” technology that mirror recent US law. See W.J. Grossman, “Broadcast Treaty Battle Rages On,” Wired News Online, August 28, 2004: www.wired.com/news/culture/0,1284,64696,00.html. Discussions for the proposed Treaty eventually ended in disorder, but WIPO is pursuing the agenda cautiously: see “WIPO Broadcasting Treaty Discussions End in Controversy, Confusion,” IP Watch Online, November 22, 2005: www.ip-watch.org/ weblog/index.php?p⫽10&res⫽1024&print⫽0; updated news on its current round of “consultations” may be found in “WIPO Takes Broadcasting Treaty Negotiation Outside Geneva,” IP Watch Online, updated July 6, 2005: www.ip-watch.org/weblog/index.php?p⫽72&res⫽1024_ff&print⫽0. IP Justice has compiled an interesting list of “Top 10 Reasons” to reject the proposed Treaty; see online: www.ipjustice.org/WIPO/top10reasons.shtml. Annex 1C to the Marrakech Agreement Establishing the World Trade Organization April 15 1994, (1994) 33 ILM 1197 (entered into force January 1, 1995), online: www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm. 8 Anne, c. 19. Ustav o Tsenzure [Censorship Statute], Appendix, Polozhenie o Pravakh Sochinitelei [Law on Creators’ Rights], Articles 135–9, April 22, 1828 (as amended 1830), Polnoe Sobranie Zakonov Rossiiskoi Imperii (Sob II) [Second Complete Collection of the Laws of the Russian Empire], Sanktpeterburg 1830, Vol. III, Item Nos 1979–80. In his seminal study, Patterson describes the founding of the Stationers’ Company under Queen Mary’s reign; the Stationers’ charter stated that it was granted by the sovereign “to provide a suitable remedy against seditious and heretical material printed by schismatical persons,” but Patterson observes that “[t]he charter itself . . . is dominated by the idea of suppressing prohibited books, and Mary’s motive in granting it, . . . was to obtain an effective agency for censorship.” See Patterson (n. 6), pp. 28–9. Patterson’s study describes how, not only the sovereign, but also publishers, in the form of the Stationers’ Company, attempted to exploit the legal status of the author to extend their own prerogatives. See Patterson (n. 6), c. 8 (especially pp. 168–79). Patterson (n. 6), p. 42, c. 4, traces the Stationers’ copyright from, most probably, either 1518 or 1542. Kaplan (n. 6), p. 13; see his analysis at pp. 13–16.

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29 Millar v. Taylor (1769), 4 Burr 2303, 98 Eng Rep 201 (KB), and Donaldson v. Becket (1774), 4 Burr 2408, 98 Eng Rep 257 (HL). Both cases arose out of the poems of James Thomson, including “The Seasons,” published by Scottish bookseller Alexander Donaldson. See Patterson (n. 6), pp. 168–79. See also the discussion in Chapter 1, n. 16 and accompanying text. 30 See the discussion in Patterson (n. 6), pp. 168–72. 31 Moral rights were first adopted at the 1928 Rome revision conference; they were subsequently improved upon at the Brussels Conference of 1948 and amended once again in the Stockholm Conference of 1967. See S. Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886–1986, Centre for Commercial Law Studies, Queen Mary College, London: Kluwer, 1987, paras 8.93–8.101. 32 See Ricketson (n. 31), paras 8.93–94. For English lawyers, and those based in the common-law tradition, there is an inherent tension between legal rights, which are enforceable by the state, and morality, which involves unenforceable issues of principle. 33 For example, the decision of the Recording Industry Association of America (RIAA) to sue individual consumers having access to works via the Internet for private and non-commercial use has been highly controversial: see, for example, D. Cohn, “The New Wave Of Downloading,” Wired News Online, July 6, 2005: www.wired.com/news/business/0,1367,68100,00.html, and “RIAA Fires New Round of Volleys,” Wired News Online, September 30, 2004: www.wired.com/news/digiwood/0,1412,65162,00.html. Wired News provides ongoing updates of the situation; see online: www.wired.com. Encouraged by the success of the RIAA in settling its lawsuits – claimed by the RIAA as a moral vindication of its position – the British Phonographic Industry has followed suit in the UK: see “Music industry extends piracy war,” BBC News Online, April 14, 2005: http://news.bbc.co.uk/1/hi/entertainment/music/ 4436223.stm. It is worth noting, however, that the British cases have focused on individuals involved in “uploading” files onto the Internet, and file-sharing, rather than “downloading” music for their personal use. See M.T. Sundara Rajan, “The Artist in a Global Village: Harmonization and Arts Law in the UK,” Media and Arts Law Review 10 (2), 2005. 34 The movement is led by a number of scholars and academics in the United States, including Lawrence Lessig, professor of law at Stanford University, perhaps its most vocal proponent. It has sparked sister movements in a number of other countries. 35 For a detailed explanation of its approach, including the licensing aspect, see Creative Commons, online: http://creativecommons.org/about/history and http://creativecommons.org/about/licenses/. 36 The use of licences for these purposes has long been a touchstone of copyright policy in developing countries: see Ricketson (n. 31), paras 11.60–11.106. 37 For example, something akin to moral rights seems to be featured in the “attribution license” offered by the Creative Commons movement, online: http://creativecommons.org/about/licenses/. 38 Some of these aspects of copyright’s international expansion are considered in M.T. Sundara Rajan, “The Implications of International Copyright Law for Cultural Diversity Policies,” in T. Bennett, Differing Diversities – Cultural Policy and Cultural Diversity, Strasbourg: Cultural Policy and Action Department, Council of Europe, 2001. 39 “Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.” 40 Canada is something of an exception to this rule: see D. Vaver, Copyright Law, Essentials of Canadian Law Series, Toronto: Irwin Law, 2000, pp. 63–5.

Notes 263 41 See R.J. Coombe, “Intellectual Property, Human Rights and Sovereignty: New Dilemmas in International Law Posed by the Recognition of Indigenous Knowledge and Conservation of Biodiversity,” Ind J Global Legal Stud, 1998, 59. 42 Referring to North American aboriginal peoples as representatives of “nonWestern” cultures is, of course, geographically inaccurate, and is only intended to capture the contrast between aboriginal cultures and the idea of Western culture. 43 This may be overcome by relying on the place of publication of the work to provide it with national status: for example, see the Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886, 1161 UNTS 3 (as revised at Paris on July 24, 1971 and amended in 1979), World Intellectual Property Organization (WIPO) online: www.wipo.int/treaties/ip/berne/index. html [Berne Convention], Art. 5 (4). 44 See the interesting discussion of the elements of free speech, with a focus on their relationship to copyright, in E. Barendt, “Copyright and Free Speech Theory,” in J. Griffiths and U. Suthersanen (eds), Copyright and Free Speech: Comparative and International Analyses, Oxford: Oxford University Press, 2005, c. 2, especially paras 2.13–2.28. 45 For example, see the discussion in S. Strömholm, “Droit Moral – The International and Comparative Scene from a Scandinavian Viewpoint,” IIC 14 (1), 1983, 1, pp. 16–22. 46 This writer was introduced to the two terms by A. Rakhmilovich, “The Constitutional Court of the Russian Federation: Recent Cases on Protecting the Freedom of Thought and Speech and Related Matters,” Rev Cent and E Eur L 22 (2), 1996, 129, p. 133. 47 “There is one thing stronger than all the armies in the world; and that is an idea whose time has come.” In Nation, April 15, 1943. See Oxford Dictionaries (Dictionary of Quotations), online: www.askoxford.com. 48 Statistics on the proportion of people in a number of countries with access to the Internet are provided by Internet World Stats: Usage and Population Statistics, online: www.internetworldstats.com/top10.htm#rate and the New Media Review, online: www.etcnewmedia.com/review/default.asp?SectionID⫽10. See also, online: www.internetworldstats.com/blog.htm#300904. K.K. Campbell’s column on the Internet for the Toronto Star also provides an interesting perspective, but the statistics are now out of date; see “ ‘We’re Number 2! We’re Number 2!’ Canada ranks just behind Sweden in percentage of population online,” K.K.Campbells Net.column, January 27, 2000, online: www. kkc.net/toronto-star/2000/0127/. 49 For example, see Internet Usage Statistics for Africa online: www.internetworldstats.com/stats1.htm. It is possible to link to statistics for individual African countries, with highs showing in the former French territories of Mauritius and the Seychelles, and the French protectorate of Reunion; they are followed by South Africa, Tunisia, Egypt, and, somewhat surprisingly, Cape Verde. 50 Examples of digital art galleries are too numerous to cite. Concert halls have some presence on the Internet, but this is an area to develop: see n. 15 above. 51 Payzant (n. 18), pp. 26–32. 52 M.T. Sundara Rajan (n. 18). Of course, the idea is nothing new in principle: technological changes have brought new creative possibilities to civilization throughout history. 53 See Eldred v. Ashcroft (n. 20), and the Copyright Term Extension Act, S 505, P.L. 105–298, 11 Stat. 2827 (October 27, 1998) [codified at 17 USC § 301–4 (2000)] [Sonny Bono Copyright Term Extension Act]. 54 See A. Dietz, “Term of Protection in Copyright Law and Paying Public Domain: A New German Initiative,” EIPR 22 (11), 2000, 506.

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55 For example, see the interesting discussions in J. Rapoza, “Grokster’s Lingering Effects,” eWEEK.COM: Enterprise News and Reviews Online, July 25, 2005: www.eweek.com/article2/0,1895,1838488,00.asp and M. Grebb, “Bill: Copyright Power to People,” Wired News Online, October 4, 2002: http://wiredvig.wired.com/news/politics/0,1283,55569,00.html, on the introduction, in the United States, of a “fair use” bill to protect users’ rights in the digital environment. The bill, the Digital Media Consumers’ Rights Act, H.R. 107, was first introduced in 2002 by Representative Rick Boucher. 56 Feist Publications v. Rural Telephone Service Co., 111 S Ct 1282 (1991). It is worth noting, however, that the idea of authorship rights as natural rights was explored previously in the United States, in a landmark decision involving authors’ moral rights: Dmitry Shostakovich et al. v. Twentieth Century-Fox Film Corporation, 196 Misc 67; 80 NYS 2d 575, 77 USPQ 647 (June 7, 1948). Interestingly, the implications of this aspect of the judgment are rarely discussed. For a detailed analysis of the case, see Chapter 5, notes 62–8 and accompanying text. The influence of Feist has been strongly felt throughout the common-law world; in Canada, it has led to some discomfort, with the Canadian Supreme Court attempting to reconcile the new and higher standard of originality with a labororiented approach by arguing that the two are, in fact, one and the same. See CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 SCR 339, 236 DLR (4th) 395. Interestingly, the movement towards more complex originality requirements often appears as the “Europeanization” of common-law copyright, since the concept of creative originality has traditionally informed the civilian systems of authors’ rights in Continental Europe. For commentaries on these contrasting views, see S. Ricketson, “The Concept of Originality in AngloAustralian Copyright Law,” J Copyrt Socy USA 32, 1992, 265, and G. Schricker, “Farewell to the ‘Level of Creativity’ (Schöpfungshöhe) in German Copyright Law,” IIC 26 (1), 1995, 41. 57 See Digital Millennium Copyright Act, Pub L No. 105–304, 112 Stat 2860 (October 28, 1998), s. 1202 [DMCA]. For an overview of the legislation, see “The Digital Millennium Copyright Act of 1998” United States Copyright Office, online: www.copyright.gov/legislation/dmca.pdf. 58 WIPO Copyright Treaty, December 20, 1996, 36 ILM 65 (entered into force March 20, 2002) [WCT], online: www.wipo.int/treaties/en/ip/wct/; WIPO Performances and Phonograms Treaty, December 20, 1996, 36 ILM 76 (entered into force May 20, 2002) [WPPT], online: www.wipo.int/treaties/en/ ip/wppt/. See WCT Arts 11,12, 14; WPPT Arts 18, 19, 23. 59 See n. 10 above. 60 For example, see the UK Copyright, Designs and Patents Act 1988, c. 48, s. 11 (2); the Canadian Copyright Act, RSC 1985, c. C-42, s. 13 (3); and the United States Copyright Act, USC Title 17, § 201 (b). 61 The study by Hansmann and Santilli (n. 3) is a notable exception. 62 The term, “grey” is also used by intellectual property lawyers to designate the copying outside borders and re-importation of copyright works – perhaps not illegal within the strictest sense of the term, but potentially incompatible with the spirit and purpose of the law. 63 India – Patent Protection for Pharmaceutical and Agricultural Chemical Products (Complaint by the United States) (1997), WTO Doc WT/DS50/R (Panel Report); WT/DS50/AB/R (December 19, 1997). The Appeal decision, along with a summary of developments from the initiation of the dispute to the present, is available on the website of the WTO, online: www.wto.org/english/ tratop_e/dispu_e/cases_e/ds50_e.htm. 64 See Chapter I, n. 55 and accompanying text. 65 See R.C. Dreyfuss and A.F. Lowenfeld, “Two Achievements of the Uruguay

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Round: Putting TRIPs and Dispute Settlement Together,” Va J Intl L, 1997, 275, p. 280 comment on the “uneasy” juxtaposition of the vocabulary of intellectual property rights with international trade. For the trade community, “liberalization” means the removal of barriers to trade, but in intellectual property, trade liberalization is synonymous with increasing intellectual property standards. Here, the author tries to restore the original meaning of liberalization, meaning greater openness and fewer barriers, in relation to intellectual property rights. See n. 29 above and accompanying text. Ellen Dissanayake considers the controversial question of the “besoin d’art,” as Baudelaire might express it, from an unusual perspective – that offered by evolutionary biology. See E. Dissanayake, Homo Aestheticus: Where Art Comes From and Why (2nd edn), Seattle: University of Washington Press, 1995. Baudelaire addresses the theme in his Conseils aux jeunes litterateurs (L’Esprit public, April 15, 1846), available online: www.bmlisieux.com/litterature/baudelaire/conseils.htm. On the adoption of the UK provisions, see W.R. Cornish, “Moral Rights under the 1988 Act,” EIPR 11 (12), 1989, 449; on Australia, see E. Adeney, “Defining the Shape of Australia’s Moral Rights: A Review of the New Laws,” IPQ 4, 2001, 291; and on the US, D. Nimmer (n. 16). Canada is unique, having had moral rights legislation since 1931, when it was the first common-law country to introduce them; but the legislation remains virtually unchanged, and there has only been one case of successful litigation on moral rights in the history of Canadian copyright. See D. Vaver, “Authors’ Moral Rights in Canada” IIC 14, 1983, 329, pp. 370–1; Snow v. The Eaton Centre Ltd. (1982), 70 CPR (2d) 105 (Ont HC). Article 5 of WPPT (n. 58). Notably, the enactment of a performer’s moral right in common-law countries may result in the legal and conceptually untenable situation where the rights enjoyed by performers actually exceed those of “authors.” See the discussion in M.T. Sundara Rajan, “The ‘New Listener’ and the Virtual Performer: The Need for a New Approach to Performers’ Rights,” in M. Geist (ed.), In the Public Interest: The Future of Canadian Copyright Law, Toronto: Irwin Law/Creative Commons, 2005, 309. Sundara Rajan (n. 3). The rights of attribution and integrity are protected in Article 6bis of the Berne Convention (n. 43). The issue of moral rights in new technologies remains under-researched: for example, see M.T. Sundara Rajan, “Moral Rights in Information Technology: A New Kind of ‘Personal Right’?,” IJLIT 12 (1), 2004, 32. The potential problems in allowing moral rights to apply to computer programs as “literary works” has led at least one jurisdiction, India, to make computer programs ineligible for moral rights protection. See section 57 of the Indian Copyright Act; this provision was most likely a consequence of judicial consideration of the issue in Statart Software Pvt Ltd v. Karan Khanna. The case is described in detail by P. Anand, “The Concept of Moral Rights under Indian Copyright Law,” Copyright World 27, 1993, 35, pp. 36–7. Interestingly, in its law on computer programs, the Russian Federation has moved in the opposite direction, granting to the creators of both programs and databases a moral right that is legally indistinguishable from the conventional protections known as the moral right of the author. See Russian Federation Law on the Legal Protection of Computer Programs and Databases, Law No. 3523-1 of September 23, 1992; amended by Federal Law No. 177-FL of December 24, 2002. For an English translation, see Russian Patent and Trademark Office, online: www.fips.ru/avpen/pr_db.htm. This issue is discussed further in Chapter 7, notes 136–9.

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74 The treatment of waivers in a number of common-law jurisdictions, including Canada, the United States, the United Kingdom, India, and Nigeria, is considered by G. Dworkin, “The Moral Rights of the Author: Moral Rights and the Common-law Countries,” Columbia-VLA J L and Arts, Spring/Summer 1995, 229, pp. 244–5, 256–7, 261–4. The significance of waivers is also discussed by Fraser (n. 20), pp. 290–6. 75 Although the Berne Convention was amended in 1979, the 1971 version, adopted at the Paris Conference, is the latest revision of the Convention to become internationally accepted. It should be noted that WIPO also generated a Copyright Treaty in 1996, but this is a special agreement within the meaning of Article 20 of the Berne Convention, which allows member countries to agree upon measures to improve copyright standards beyond the provisions of Berne. There is also a statement on relations between WIPO and the WTO: see WIPO, online: www.wipo.org. 76 The Constitution of the United States, Article I, Section 8, Clause 8: the purpose of copyright protection is to “promote the Progress of Science and useful Arts.” The implications of the provision are discussed in Fraser (n. 20). 77 These arguments are discussed in detail by Fraser (n. 20); see also N.C. Suhl, “Moral Rights Protection in the United States under the Berne Convention: A Fictional Work?,” Fordham IP, Media and Ent LJ 12, 2002, 1203, pp. 1213–15 for a summary of the Constitutional aspects of American copyright. 78 Suhl (n. 77) 1215; she also emphasizes the narrowness of the circumstances in which the VARA can actually be invoked. Nimmer discusses the strange situation surrounding American accession to the Berne Convention, when the United States claimed to include adequate protection for moral rights through its common law, but passed the VARA: see Nimmer (n. 16). It should be noted that the Lanham Act also offered protection to moral rights, particularly the attribution right, as a form of consumer protection and truth-in-marketing: see Suhl (n. 77), pp. 1216–22. 79 Eldred v. Ashcroft, 123 SCt 769, 789 (January 15, 2003). 80 See the discussion in N.W. Netanel, “Copyright and the First Amendment: What Eldred Misses – and Portends,” in J. Griffiths and U. Suthersanen (eds), Copyright and Free Speech: Comparative and International Analyses, Oxford: Oxford University Press, 2005, 127. 81 See, for example, the landmark US decision in Shostakovich (n. 56). However, the judge in Shostakovich was commenting on the lack of development of moral right of the author in American legislation and jurisprudence, as well as noting certain inherent difficulties in interpreting or applying these rights. 82 Code de la propriété intellectuelle, Art. L-122.5 (4), CELOG: Centre d’expertises informatique, online: www.celog.fr/cpi/lv1_tt2.htm [CPI]. 83 See nn. 12 and 19 above. 84 In the case of film, the question of authorship and who would have the right to assert moral rights is potentially problematic. For example, see Nimmer (n. 16) p. 95. The point is also made by Fraser (n. 20), pp. 311–20. 85 The bitter debate between the US and European Union countries over the possibility of including audiovisual works is summarized by Samuelson (n. 21), pp. 369, 371–2. The role of the US film industry in international copyright negotiations is dealt with by Nimmer (n. 16) and Fraser (n. 20). 86 The issues surrounding the harmonization of moral rights standards are detailed in a 1995 Green Paper prepared by the European Commission. What is striking is that the issue appears to have remained at a standstill since then. See Commission of the European Communities “Green Paper: Copyright and Related Rights and Information Society,” (19.07.1995) COM(95)382 final, Section VII: Moral Rights, 65.

Notes 267 87 For example, see the seminal study of moral rights in historical context by M. Woodmansee, “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author’,” Eighteenth-Century Studies 17, 1984, 425. 88 See E.W. Ploman and L.C. Hamilton (n. 4), pp. 22–5. Ploman and Hamilton cite Claude Masouyé, who tries to explain the appeal of copyright and moral rights for developing countries in terms of their association with the ideals of “cultural progress” and “national prestige.” Despite the fact that it was published two decades ago, Ploman and Hamilton’s work remains an important survey of copyright in the developing world. 89 The history of moral rights in India, well developed in legislation and now supported by a strongly activist judiciary in spite of some hesitations at the level of the central government, is a case in point. For example, see the recent case of Amar Nath Sehgal v. Union of India (21.02.2005), CS(OS) No. 2074/1992, affirming Suit No. 2074 (Delhi HC), (1994) 19 Indl Prop L Rep 160. 90 For example, see C. Prins, “Emile Zola Receives an Answer: The Soviet Union is to Join the Berne Convention,” EIPR 7, 1991, 238, pp. 238–42. As he points out, the Soviet Union’s failure to adhere to the Berne Convention was viewed by Soviet authors as enforced isolation from the world of international literature. From another point of view, the contrasting perspective of the government, which was ostensibly concerned about paying royalties to foreign authors, represents a common development problem in international copyright. 91 See Patterson (n. 6) p. 43, who observes that “the same fundamental ideas of copyright that were transmitted to this country [the United States, from England] in the eighteenth century still prevail.” See also William Patry’s discussion of copyright history, W.F. Patry, Copyright Law and Practice, Washington: Bureau of National Affairs 1994, 2000, online: http://digital-law-online. info/patry/patry2.html. 3 Copyright law in transition 1 After the fall of the Berlin Wall in 1989 and the dissolution of the Soviet Union in 1991, it is tempting to refer to the “end of socialism” per se. However, socialist government continues to be alive and well in Cuba and China – in the latter case, with major implications for the world of intellectual property regulation. 2 Copyright provides an example of this process. The need for new copyright legislation was recognized in the Soviet Union as early as 1990, in the context of the Agreement on Trade Relations between the United States and the Soviet Union. However, a new Copyright Law was not actually adopted until 1993; not only has it been the subject of subsequent amendments, but the framework for copyright protection is also undergoing a radical new series of reforms in the hands of the Private Law Research Center under the Office of the Russian President. The evolution of copyright in the last days of the Soviet Union is described by C. Prins, “Emile Zola Receives an Answer: The Soviet Union Is to Join the Berne Convention,” EIPR 7, 1991, 238, pp. 242–7. See also Russian Federation Law on Copyright and Neighboring Rights (Zakon Rossiiskoi Federatsii “Ob avtorskom prave i smezhnykh pravakh”), Law No. 5351-1 of July 9, 1993, VSND i VS RF, 1993, No. 32, Item 1242; Rossiiskaia gazeta, August 3, 1993. Available in English translation, Russian Patent and Trademark Office, online: www.fips.ru/avpen/docs.htm [updated through legislative amendments of July 19, 1995]. Amended by Federal Law No. 110-F3 of July 19, 1995, Rossiiskaia gazeta July 26, 1995; and Federal Law No. 72-F3 of July 20, 2004. The 2004 amendments are available in the Russian original via links from the website of the Coalition for Intellectual Property Rights; the site also contains a great deal of useful information regarding Russian intellectual property reform. See

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Coalition for Intellectual Property Rights, Moscow Team, Russian Legislative Update, August 17, 2004, online: www.cipr.org/news/pressreport/legal_ alert_81704.htm#download. The primary purpose of the 2004 legislation is to bring Russian law into conformity with the WIPO Internet Treaties; it includes, strange to Russian ears, a new right of “making available.” A recent attempt at revising the law appears to be the Draft of Federal Law No. 42061. See G.M. Danilenko, “International Law in the Russian Legal System,” Proceedings of the 91st Annual Meeting of the American Society of International Law, 1997, 295. These two periods of reform also involve overlapping and intersecting concerns. Nevertheless, this author would argue that it is important to be aware of the progressive nature of the reform process, as the general movement from public to private law and back again is an overarching trend, and reflects the dynamics of legal culture in the transition. Indeed, the distinction between public and private law, often problematic, is particularly unclear in the socialist context: see G.M. Danilenko and W. Burnham, Law and Legal System of the Russian Federation, Parker School of Foreign and Comparative Law, Columbia University, New York: Juris Publishing, 1999, pp. 1–10. Arato provides a critique of the initial tendency towards “constitutionalism”: see A. Arato, “Dilemmas Arising from the Power to Create Constitutions in Eastern Europe,” in M. Rosenfeld (ed.), Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives, Durham, NC: Duke University Press, 1994, p. 165. Revisions of intellectual property law were recognized as an immediate concern after the breakdown of the Soviet Union, coinciding with the beginning of the Uruguay Round of trade talks which would eventually lead to the adoption of the TRIPs Agreement. See S. Fraser, “Berne, CFTA, NAFTA & GATT: The Implications of Copyright Droit Moral and Cultural Exemptions in International Trade Law,” Hastings Comm and Ent LJ 18, 1996, 287, pp. 311–16. However, it was 1993 before a new Copyright Act had come into force, and copyright law has been the subject of ongoing re-assessment ever since. Agreement on TradeRelated Aspects of Intellectual Property Rights, Annex 1C to the Marrakesh Agreement Establishing the World Trade Organization, April 15, 1994, 33 ILM 1197 (entered into force January 1, 1995), WTO Homepage (Legal Texts), online: www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm [TRIPs Agreement]. The legal structure of the WTO is based on a series of agreements governing different aspects of international trade, of which TRIPs is one. For a country to become a WTO member, adherence to all the basic agreements is required. In a sense, the agreement which holds all the others together is the Understanding on Rules and Procedures Governing the Settlement of Disputes, Annex 2 to the Agreement Establishing the World Trade Organization (above), online: www.wto. org/wto/legal/finalact.htm [DSU]. TRIPs and the DSU are explicitly identified as the most important elements of the trade regime by R.C. Dreyfuss and A.F. Lowenfeld, “Two Achievements of the Uruguay Round: Putting TRIPs and Dispute Settlement Together,” Va J Intl L, 1997, 275. The isolation of socialist legal systems from Western and international law was, of course, as much due to the moral barrier of socialist legal philosophy as the physical barrier of the Berlin Wall between West and East. The special features of socialist legal concepts are usefully summarized by Danilenko and Burnham (n. 4), pp. 1–10. T.N. Samahon, “TRIPs Copyright Dispute Settlement after the Transition and Moratorium: Nonviolation and Situation Complaints against Developing Countries,” L and Poly in Intl Bus, Spring 2000, p. 1051 observes that “most losses result from an absence of ‘on the ground’ enforcement.” This assessment of intellectual property problems in less-developed jurisdictions has even found its

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way into the news media. For example, writing on piracy, a writer for the Economist magazine argues: “Lack of legislation is not the problem. China, for instance, passed new laws on intellectual property in July [2001]. These should bring it into line with standards set by the World Trade Organization, which is to accept China as a member on November 10th. . . . Generally speaking, though, laws are not enforced.” See “Counterfeiting in Asia: Phonies galore” in The Economist, November 10–16, 2001. These concerns increasingly enjoy the attention of international scholars; noteworthy examples are E. Henderson, “TRIPs and the Third World: The Example of Pharmaceutical Patents in India,” EIPR 19 (11), 1997, 651; R.A. Sherwood, “The TRIPS Agreement: Implications for Developing Countries,” IDEA: J L & Tech 37, 1997, 491; and N. Kumar, “Cultural Imperialism and Third World Publishing,” Copyright, 1983, 17, a unique older study from a developing country. For example, a survey of socialist political parties in Eastern European countries during the mid-1990s is provided by R.W. Fontaine, “Red Phoenix Rising? Dealing with the Communist Resurgence in Eastern Europe,” June 1996, Cato Policy Analysis Number 255, online: www.cato.org/pubs/pas/pa-255. html. The historical experience of Russia provides the most pronounced example of the latter situation, where government policy went so far as to attempt to rewrite history. For example, composer Dmitry Shostakovich was at first hailed as a hero of “socialist realism,” only to be vilified for his opera, “Lady Macbeth of the Mtsensk District,” disliked by Stalin for its avant-garde qualities. The episode is described in detail by S. Fitzpatrick, The Cultural Front: Power and Culture in Revolutionary Russia, Ithaca, NY: Cornell University Press, 1992, pp. 183–215. See the discussion in Chapter 5, n. 89 and accompanying text. For example, see the revised Soviet copyright legislation of 1961, which, in line with Western European practice, makes provision for copyright in the Civil Codes of the Socialist Republics, and included references to authors’ moral rights. See 1961 USSR Fundamentals, Art. 98 on the “rights of the author,” and RSFSR Civil Code, Part IV, Arts 480 and 481 on the protection of the “inviolability” of a work and the name of the author. Fundamentals of Civil Legislation of the Union of Soviet Socialist Republics and the Union Republics, c. IV, VVS SSSR, 1961, No. 50, Item 525; and RSFSR Civil Code of 1964, VVS RSFSR, 1964, No. 24. Both pieces of legislation are available in English translation on Garant; an English version also appears in Appendices A and B of M.A. Newcity, Copyright Law in the Soviet Union, New York: Praeger Special Studies, 1978, p. 181. A surprising number of post-socialist countries have joined the WIPO Internet Treaties: for a current list of member countries, see the WIPO website, online: www.wipo.int/treaties/en/. American influence, though, is only one explanation; the desire for modernization in these countries should not be underestimated, with Russia being eager to capitalize on its historical reputation for technological excellence. Lithuania, Latvia, Estonia, Poland, Slovakia, the Czech Republic, Hungary, Slovenia, Malta, and Cyprus joined the EU in 2004: see the list of new member countries on the European Union website, EU DG – Enlargement, online: http://europa.eu.int/comm/enlargement/intro/index_en.htm. This site also provides detailed links to information on current candidate countries and a variety of enlargement-related issues. For an interesting note on the key issues involved in this round of accessions, see “European Commission Recommends 10 Countries For EU Membership in 2004,” September 10, 2002, online: www. arge28.com/dst_SZ_Details.asp?SNID⫽75. An update on Turkish accession proposals may be found in “Too big to handle? Turkey’s application to join the

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EU is causing anxiety on both sides,” in “Meet the neighbours: A survey of the EU’s eastern borders,” in The Economist, June 25, 2005, pp. 12–15. The Russian Federation actually concluded an “Agreement on Partnership and Cooperation” with the European Union on June 24, 1994: for details, see M. Elst, “The Interaction of European Community and Russian Copyright Law: A Matter of Partnership and Cooperation,” Rev Cent and E Eur L 22 (3), 1996, 267, pp. 276–85. Current prospects for relations between Russia and the EU are, however, chilly. See “A bearish outlook: The EU’s relations with Russia are bad and may get worse” in “Meet the neighbours” (n. 13), pp. 10–12. Law reform in Eastern Europe and certain other jurisdictions, particularly in its “American version,” receives an informative and helpful critique in J. DeLisle, “Lex Americana? United States Legal Assistance, American Medical Models, and Legal Change in the Post-Communist World and Beyond,” U Pa J Intl Econ L 20, Summer 1999, 179. See also G. Ajani, “By Chance and Prestige: Legal Transplants in Russia and Eastern Europe,” AJCL 43, 1995, 93. Universal Copyright Convention, 943 UNTS 178 (1952 Geneva text, as amended at Paris on July 24, 1971) [UCC], online: www.unesco.org/culture/laws/ copyright/html_eng/page1.shtml [UCC]. The UCC has been much less significant in the history of international copyright than the Berne Convention: see Prins (n. 2), pp. 241–2. Interestingly, the implications of Soviet membership in the UCC were hotly contested at the time, with Soviet and international groups representing authors protesting that the Soviet government would exploit the Convention to suppress further the writings of dissidents. See Newcity (n. 11), pp. 151–60; see also Levitsky’s comments on the presence of compulsory licensing provisions in Soviet copyright legislation, and his analysis of their practical significance: S.L. Levitsky, “The State As a Subject of Copyright in Soviet Law,” J Media L and Prac 1 (2), 1980, 137, pp. 141–2. See n. 16. The US effectively became a member of the Berne Convention in 1989, Russia in 1995. M. Ficsor, “The Past, Present and Future of Copyright in the European Socialist Countries,” RIDA 118, 1983, 33. His somewhat sceptical interpretation of the Berne Convention does, however, make sense from the perspective of a socialist legal scholar. Prins (n. 2), p. 232. He also cites similar concerns among the Soviet intelligentsia. It should be noted that, in the current copyright system, it still remains theoretically possible for states to discriminate between their own nationals and the nationals of other WTO countries. However, there is great political pressure under TRIPs to harmonize the treatment of national and international authors, which has led observers to comment on the relatively greater rigidity of the TRIPs system in relation to the earlier framework for international copyright under the Berne Convention. For example, Gana draws a distinction between “globalization” and “internationalization” of copyright law, distinguishing the TRIPs Agreement from the Berne Convention. See R.L. Gana, “Has Creativity Died in the Third World? Some Implications of the Internationalization of Intellectual Property,” Denv J Intl L and Poly 24, 1995, 109, p. 121. Ficsor (n. 18), p. 48. It is interesting that the first wave of Soviet dissent in the 1960s included an insistence that state officials should respect the letter of the law. For example, in a 1965 protest, Alexander Esenin-Volpin, the son of Russian poet Sergei Esenin, demonstrated his opposition to the government by displaying a sign that read “Respect the Constitution.” The incident is described in G. Hosking, A History of the Soviet Union 1971–1991, Final edn, London: Fontana Press, 1992, p. 417.

Notes 271 23 See the informative exhibit on Werner Heisenberg and the “uncertainty principle” on the website of the American Institute of Physics, online: www. aip.org/history/heisenberg/. 24 Ugo Mattei draws attention to the weaknesses inherent in these kinds of legal transplants: see U. Mattei, “Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems,” AJCL 45, 1997, 5. 25 Russian Federation Law on Copyright and Neighbouring Rights (n. 2). The circumstances in which the new law was developed, with particular attention to Western European influences on the law, are discussed by Elst (n. 14), pp. 267–85. 26 This would certainly have been the case in relation to the issues raised by modern technologies, including computer programs, databases, and the Internet. For example, one of the first US requests in Poland was that the country should extend copyright protection to computer programs: see S.P. Boylan, “United States–Poland Economic Treaty: A Blueprint for Intellectual Property Reform in Eastern Europe and the Developing World?,” Fla J Intl L 6, 1990, 101, pp. 107–11. 27 A.J. Schmidt, “Soviet Civil Law As Legal History: A Chapter or a Footnote?,” in G. Ginsburgs, D.D. Barry, and W.B. Simons (eds), The Revival of Private Law in Central Eastern Europe: Essays in Honor of FJM Feldbrugge, The Hague: Kluwer Law International, 1996, 45, p. 61. 28 It is interesting to consider whether religious law may additionally play a role in the once Islamic republics of Central Asia, where religion has increasingly resumed a position of social importance. Unfortunately, Islam in the region has come to be associated with extremist movements rather than pre-Soviet tradition, with Uzbekistan, Tadjikistan, Kazakhstan, and Chechnya affected. See the related discussions in R.C. Preston, “Islam in Russia under the Federal Law on Freedom of Conscience and on Religious Associations: Official Tolerance in an Intolerant Society,” Brigham Young U L Rev, 2001, 773. 29 The characteristics of the “socialist” legal system in Soviet Russia, and the peculiarities of civil law tradition in this context, are discussed by Danilenko and Burnham (n. 4), pp. 2–7. 30 See Schmidt (n. 27), pp. 56–8 (also citing Butler). 31 Alexander Esenin-Volpin’s insistence that the Constitution should be respected helped to bring about the empowerment of dissent. Hosking (n. 22), pp. 417–18. 32 See DeLisle (n. 15). 33 For example, see W.E. Butler, “Foreign Legal Assistance in the CIS: Lessons from the Early Years,” in G. Ginsburgs et al. (n. 27) 499, p. 509. 34 See the second Chorley lecture by comparative lawyer, Sir Otto Kahn-Freund, addressing “comparative law as a tool of law reform,” and the problems of legal “transplantation,” in particular. Lord Wedderburn of Charlton (ed.), Otto KahnFreund: Selected Writings, London: Stevens, 1978, c. 12 “On Uses and Misuses of Comparative Law,” especially pp. 294–305. 35 Mattei (n. 24), p. 7. 36 Problems with reform are described in detail by Butler (n. 33) 509. 37 Mattei (n. 24), p. 7. 38 Mattei (n. 24), p. 8. Interestingly, Danilenko and Burnham (n. 4), p. 1, recognize only “three major groups or families” until “recent revolutionary changes in Russia and Eastern Europe.” One wonders how they would propose to incorporate non-Western legal systems into their comparative scheme, and whether their analysis of current Russian law might not be impaired by substantially overlooking the legal systems and traditions in the developing world. 39 Mattei (n. 24), p. 12.

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40 J.-J. Rousseau, Du contrat social et autres oeuvres politiques, Introduction by Jean Ehrard, Paris: Garnier, 1975. 41 Professor Colin Tapper, in private correspondence. 42 See Mattei (n. 24), p. 5; he argues that “[t]his parochial attitude is extremely evident in modern American academia, as has traditionally been the case with French legal scholarship.” 43 For example, in relation to pharmaceutical patents in India, Henderson comments: “Perhaps the U.S. is not so much motivated by the economic benefit that India will supposedly gain, but by a concern that India is already benefiting at their expense.” Henderson (n. 8), p. 663. 44 See Article 9.1 of the TRIPs Agreement. This provision requires countries to adhere to the moral rights provisions of Article 6bis of the Berne Convention, but exempts them from the WTO dispute-settlement mechanism. 45 Butler (n. 33), p. 509. Through the Harmonization Directives, the European Union has also been an important influence on intellectual property reform: for example, the impact of the Copyright Harmonization Directives on Russian copyright law is discussed in detail by Elst (n. 14), pp. 285–324. Elst, pp. 276–85, also considers the influence of the Agreement on Partnership and Cooperation between the EU and Russia on Russian copyright. Interestingly, the Communists adopted a “social engineering” approach to law which could be a problem for policy-makers now, as they may be reluctant to fall into an obviously similar posture. For a discussion of “parental law” in Soviet legal theory, see Schmidt (n. 27), pp. 49–50, 57–62. 46 This point is raised in relation to developing countries by E.W. Ploman and L.C. Hamilton, Copyright: Intellectual Property in the Information Age, London: Routledge and Kegan Paul, 1980, p. 29. Writing in 1980, Ploman and Hamilton did not assign the same importance to this distinction in socialist countries. However, their discussion of socialist legal systems may suffer from certain unavoidable limitations. Prior to Gorbachev’s ascension to power in the Soviet Union in 1985, it was difficult for outsiders to assess the extent of economic collapse in the republics. With hindsight, it seems quite appropriate to consider the similarities between the challenges facing socialist systems and those in developing countries. 47 The complex relationship between Bolshevik “power” and “culture” in the early years of Soviet government is discussed by Fitzpatrick (n. 10), pp. 1–15. See also Hosking (n. 22), pp. 170, 179. 48 For a discussion of this situation in developing countries, see Ploman and Hamilton (n. 46), pp. 29–30. 49 The connection between economics and politics in developing countries is also controversial and poorly understood. One aspect of the pioneering work of Indian economist Amartya Sen is his emphasis on the positive relationship between democracy and development. For example, he points out that democratic government has helped India to manage economic crises more effectively than it might otherwise have done. For an introduction to Sen’s comprehensive approach to development, see A. Sen, “Radical Needs and Moderate Reforms,” in A. Sen and J. Dreze (eds), Indian Development: Selected Regional Perspectives, Delhi: Oxford University Press, 1997, pp. 1–32. 50 This distinction is useful in distinguishing post-socialist from developing countries, but slightly artificial: the poverty of developing countries, especially those that are large and rich in human and natural resources, is often due to political mismanagement, as well. 51 For example, see Boylan (n. 26), pp. 113–17. Boylan’s analysis is unpleasantly biased: although he draws a connection between the economic situations of postsocialist and developing countries, in his view, the transitional countries are

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victims of political oppression and therefore, deserving of special intellectual property measures, whereas “nations in the so-called developing world” implicitly are not. To date, it is not yet known whether higher intellectual property standards have in fact encouraged greater foreign investment. For example, the debate between developing and industrialized countries over the appropriate treatment of intellectual property rights in the developing world came to a head in the 1967 Stockholm revision conference of the Berne Convention. The way in which these issues were played out in the Stockholm Protocol on special provisions for developing countries is discussed in detail by S. Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886–1986, Centre for Commercial Law Studies, Queen Mary College, London: Kluwer, 1987, paras 11.16–48. For example, see N. N’diaye, “Influence du droit d’auteur sur le développement de la culture dans les pays en voie de développement,” RIDA 86, 1975, 59; T.S. Krishnamurti, “Copyright – Another View,” Bull Copyrt Socy USA 15 (3), 1968, 217; and C. Masouyé, “Décolonisation, indépendance et droit d’auteur,” RIDA 36, 1962, 85. Not surprisingly, these writers all have distinctive views on the relationship between human rights and culture as well. This point is implicit in Henderson’s discussion of patent rights and developing countries: see Henderson (n. 8), pp. 654–7. See also A.S. Oddi, “The International Patent System and Third World Development: Reality or Myth,” Duke LJ 5, 1987, 831. One of the few empirical studies on intellectual property rights in developing countries is R.T. Rapp and R.P. Rozek, “Benefits and Costs of IP Protection in Developing Countries,” J World Trade L 24 (5), 1990, 75. N’diaye (n. 53), p. 69. The problem that presented itself [to developing countries upon their independence from colonial powers] was to discover whether they ascribed to the same concept of humanity underlying human rights, and whether the requirements of development can be reconciled with the full recognition, in general, of the rights that are solemnly affirmed by all in their constitutions – and in particular, those relating to property. Thus, developing countries are often constrained to give priority to enterprises directed at achieving the development of society. In doing so, for the sake of establishing order and assuring development, some relegate to a second tier freedom and justice, in particular, freedom in the act of creation and justice in the remuneration of the author. [For the understanding of the Anglophone reader, I have preferred to translate the French, droits de l’homme as human rights, rather than using the archaic “rights of man.” For example, the Universal Declaration of Human Rights is known in French as the Declaration universelle des droits de l’homme.] It is interesting to note that, in Russia, international conventions to which Russia is a party are automatically integrated into Russian law and, in case of incompatibility, may even take precedence over Russian provisions: see C.L. Broadbent and A.M. McMillian, “Russia and the World Trade Organization: Will TRIPs Be a Stumbling Block to Accession?,” Duke J Comp and Intl L 8, 1998, 519, p. 534. The phenomenon of post-socialist constitutionalism is analysed by Arato (n. 4). See also the interesting theoretical discussion of “transitional constitutionalism” in R.G. Teitel, Transitional Justice, New York: Oxford University Press, 2000, pp. 192–206. Teitel’s analysis draws on the experiences of diverse transitional environments, including South Africa, South America, post-World War II Germany, and Eastern Europe.

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58 For a brief overview of the situation in Russia, see Danilenko and Burnham (n. 4), pp. 7–10. 59 For example, the Stalinist Constitution of the USSR provided extensive protections for human rights, but, of course, they were not respected by the government. The adoption of a new Russian Constitution in 1993 was a symbolic act that signified a new status for constitutional rights in Russian society. It marked Russia’s movement to a new legal culture, through unprecedented public involvement in the adoption of the Constitution by referendum, and in the legal status of the new document. See Danilenko and Burnham (n. 4), pp. 12–13; Constitution of the Russian Federation, December 12, 1993, Rossiiskaiai gazeta December 25, 1993, online: www.constitution.ru/en/10003000-01.htm. 60 Schmidt (n. 27), p. 59. The quotation from Lenin may be found in J.N. Hazard, Communists and Their Law, Chicago, IL: University of Chicago Press, 1969, 77. 61 A. Watson, Roman Law and Comparative Law, Athens: University of Georgia Press, 1991, p. 97. The quotation appears in Schmidt (n. 27), p. 59. 62 See F. Fukuyama, The End of History and the Last Man, New York: Free Press, 1992. 63 The blurring of the distinction between “law that is” and “law that ought to be,” identified by H.L.A. Hart as a characteristic feature of the post-World War II era, now seems to be complete. See H.L.A. Hart, “Positivism and the Separation of Law and Morals,” Harv L Rev 71, 1958, 593, pp. 595–606. It is no accident that the post-World War II debate about the connection between law and morality has been revived in the wake of socialism. The manipulation of law by the Nazis was later declared to be “illegal”; similarly, the oppressive law of Communist regimes is now considered to be devoid of legality. This fundamental problem is typical of “transitional” situations, and as such, it is emphasized by Teitel (n. 57), p. 15. 64 German reunification is a case in point: the former GDR continues to suffer serious economic difficulties, and extremist violence seems to be worsening in Eastern Germany. For an overview of the situation, see “Schröder’s Journey” in The Economist, August 26–September 1, 2000, and “Togetherness: A balance sheet,” in The Economist, September 28, 2000. 65 For example, see Teitel (n. 57), pp. 4–6. 66 The point is also noted by Teitel (n. 57), p. 204, and is central to her discussion. 67 The resurgence of Communist political parties and politicians in certain formerly socialist countries can perhaps be traced to this unresolved situation. The phenomenon is noted in “The left is back – in the centre” in The Economist, September 27, 2001, and “A new misery curtain” in The Economist, May 31, 2001. 68 The different experiences of the transition among different countries is partly a reflection of different cultural traditions. For example, a number of Central European countries, such as Poland and the Czech Republic, appear to have experienced less trauma and relatively greater success in achieving stability. See H. Izdebski, “General Survey of Developments in Eastern Europe in the Field of Law,” in G. Ginsburgs et al. (n. 27) 3, p. 3 and P. Karel, “Political, Economic, and Legal Aspects of the Association of the Czech Republic with the European Union,” Rev Cent and E Eur L 23 (3), 1997, 205, pp. 207–8 on the liberal past of the Czechs. 69 Teitel (n. 57), p. 6. 70 K. Pistor, “Supply and Demand for Law and Russia,” E Eur Const Rev 8 (4), 1999, 105, p. 106. 71 Teitel’s discussion traces the path of an earlier debate between legal theorists H.L.A. Hart and Lon Fuller about the legality of Nazi law. She argues that the problem does not involve “essential, universal attributes of the rule of law,” but “is particular to the transitional context.” See Teitel (n. 57), p. 15.

Notes 275 72 Ironically, a certain conceptual continuity with Marx’s view of progressive historical development through socialism is worth noting. 73 Hosking (n. 22), p. 408. 74 The culture of restrictiveness that continues to be characteristic of Russia’s approach to information is illustrated by the standoff between the Russian government and Chechnyan rebels who held theatre-goers hostage in a Moscow incident in 2002 that will be difficult to forget. Russian troops eventually stormed the theatre to release the hostages. Before they entered the theatre, however, they released a gas into the environment that was supposed to sedate the hostage-takers. In the event, a number of the hostages died from the effects of the gas. The Russian government greatly complicated matters by refusing to tell doctors caring for the hostages what kind of gas they had used. The information was finally released after several days, following intense pressure from the international community. The incident is described in “What is fentanyl?,” October 31, 2002, BBC News Online: http://news.bbc.co.uk/1/hi/ health/2380661.stm. 75 See Ploman and Hamilton (n. 46), p. 123; they observe, “[f]ollowing the socialist doctrine, an author’s right is not regarded as the equivalent of private property.” The adaptation of copyright to the political conditions of Soviet life is also examined by Newcity (n. 11), pp. 17–31. Interestingly, Soviet law did recognize a right of remuneration for creative work; Newcity argues that, after amendments permitting the alienation of material rights in 1973, the Soviet provision “suggests a substantive right of ownership akin to that enjoyed by copyright proprietors in the West” (p. 83). 76 For example, in Russia, information needs to be protected from corporate abuse and organized crime. The realities of business and crime in today’s Russia are described in “States within the state” and “Russia: A reconditioned model” in The Economist, “Survey on Russia,” July 19, 2001. 77 For a thought-provoking discussion of the policy objectives that copyright is traditionally supposed to accomplish, see Ploman and Hamilton (n. 46), pp. 22–30. 78 The humanistic element underlying copyright is reflected in the inclusion of authors’ rights in international instruments of human rights law. For example, see the Universal Declaration of Human Rights, December 10, 1948, UNGA Res 217 A(III)), Art. 27, and the International Covenant on Economic, Social and Cultural Rights, December 16, 1966, 993 UNTS 3 (entered into force January 3, 1976), Art. 15. 79 Boylan (n. 26), pp. 116–17 emphasizes the issue of foreign investment. 80 M.A. Hamilton, “The TRIPS Agreement: Imperialistic, Outdated, and Overprotective,” in A.D. Moore (ed.), Intellectual Property: Moral, Legal, and International Dilemmas, Lanham, MD: Rowman & Littlefield, 1997, 243, pp. 245, 247. 81 Hamilton (n. 80), p. 243. 82 For example, the Anglo-American distinction between authorship and ownership of copyright can create problems. Where works are created in situations of employment, the employer rather than the employee may control its use. In industrial society, the employer and owner of the work will often be a representative of corporate power. The weak position of the creator in these situations is noted by Ploman and Hamilton (n. 46), p. 27; they also trace the historical roots of the distinction, pp. 16–17. 83 The lack of involvement of developing countries in the TRIPs negotiations, and their relative inability to resist membership in the Agreement for economic reasons, are noted by Dreyfuss and Lowenfeld (n. 5), pp. 301–2. 84 For example, see B.S. Chimni, “Towards Technological Wastelands: A Critique

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of the Dunkel Text on TRIPs,” in K.R.G. Nair and A. Kumar (eds), Intellectual Property Rights, UDCCS Seminar Papers Series No. 1, New Delhi: Allied Publishers, 1994, 91, pp. 100–1. N.W. Netanel, “Asserting Copyright’s Democratic Principles in the Global Arena,” Vand L Rev 51, 1998, 217, p. 220. Netanel (n. 85), p. 222. The underlying value of individuality is especially emphasized by current scholarship that traces the development of modern copyright concepts to the rise of Western European Romanticism. For example, see M. Woodmansee, “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author’,” Eighteenth-Century Studies 17, 1984, 425. There are many moving examples of creative authors and artists who have resisted persecution, as there were in Communist regimes and in countries dominated by colonial rule. One recent example is Nigerian writer and activist Ken Saro-Wiwa, whose death at the hands of a corrupt Nigerian government in 1995 led to an international outcry. See “Symbolic funeral for Saro-Wiwa,” BBC News Online, April 25, 2000: http://news.bbc.co.uk/hi/english/world/africa/ newsid_725000/725009.stm. Indeed, it is important to note that moral rights, which protect authors’ personal interests in their work, may have serious economic implications. This is one of the main reasons why common-law countries, which have traditionally preferred to leave authors’ personal interests to the more informal mechanisms of tort law, have been reluctant to adopt moral rights legislation. The United States is a case in point: a powerful film industry lobby blocked the adoption of comprehensive moral rights legislation when the US joined the Berne Convention in 1989. For a discussion of the ambiguous American position on moral rights, see D. Nimmer, “Conventional Copyright: A Morality Play,” Ent L Rev 3, 1992, 94. Moral rights issues in Britain are considered in a similar light by W.R. Cornish, “Moral Rights under the 1988 Act,” EIPR 11 (12), 1989, 449, p. 449. A different balance between the commercial and cultural aspects of copyright is achieved in different legal systems, though they invariably coexist. For example, moral rights have traditionally been emphasized in the civil law systems of continental Europe, to the extent that they may be said to provide a conceptual foundation for copyright protection in these countries. To some extent, this is reflected even in the terminology for copyright – droit d’auteur in France, and Urheberrecht in Germany. See T.K. Dreier, “Authorship and New Technologies from the Viewpoint of Civil Law Traditions,” IIC 26 (6), 1995, 989, pp. 991–3, who points to the close connection between moral rights and authorship, especially in France.

4 Copyright and tyranny: the foundations of socialist copyright law * An early version of this research provided the basis of M.T. Sundara Rajan, “Copyright and Free Speech in Transition: The Russian Experience,” in J. Griffiths and U. Suthersanen (eds) Copyright and Free Speech: Comparative and International Analyses, Oxford: Oxford University Press, 2005, c. 13. The paper provides a survey of the themes in this chapter that some readers may find useful. 1 The idea of economic copyright has, however, consistently been a part of the civil law systems as well: for example, see S. Balganesh, “Copyright And Free Expression: Analyzing the Convergence of Conflicting Normative Frameworks,” Chi-Kent J IP 4, Fall 2004, 45, footnotes 127 and 128, and accompanying text.

Notes 277 2 Fundamentals of Civil Legislation of the USSR and the Republics, c. IV, Copyright, VSND i VS SSSR, 1991, No. 26, Item 773 (invalidated by Resolution of the Supreme Soviet of the Russian Federation No. 5352-1 of July 9, 1993); available in English translation on Garant. See E. Muravina, “Copyright Transactions in Russia. Part II. ‘Post-Glasnost Days’,” New Matter, Spring 1993, 25, p. 26. 3 M.T. Sundara Rajan, “Copyright and Free Speech in Transition: The Russian Experience,” in J. Griffiths and U. Suthersanen (eds), Copyright and Free Speech: Comparative and International Analyses, Oxford: Oxford University Press, 2005, c. 13. 4 This text follows Russian and civil law tradition in using the term “copyright” comprehensively, to designate both copyright and moral rights, and as a synonym for droit d’auteur, Urheberrecht, and avtorskoe pravo. The terminology of “moral rights” and “personal rights” has also been used interchangeably to designate legal protection for the extra-commercial interests of authors. 5 See E.W. Ploman and L.C. Hamilton, Copyright: Intellectual Property in the Information Age, London: Routledge and Kegan Paul, 1980, p. 11; and M.A. Newcity, Copyright Law in the Soviet Union, New York: Praeger Special Studies, 1978, p. 3: Newcity identifies England as “the birthplace of the copyright concept.” Strömholm’s interesting discussion of common-law copyright focuses on the issue of why moral rights have received such ambivalent treatment in this most established tradition of all: see S. Strömholm, Le droit moral de l’auteur en droit allemand, français et scandinave avec un aperçu de l’évolution internationale: Etude de droit comparé, Vol. 1, Première Partie: L’Evolution historique et le mouvement international, Stockholm: P.A. Norstedt and Söners Förlag, 1967, pp. 428–9 [but see the contrasting discussion in P. Drahos, A Philosophy of Intellectual Property, Aldershot: Ashgate, 1996, p. 28.] 6 Caxton’s press was founded in 1476, shortly after Gutenberg’s invention of the device in 1436: see Newcity (n. 5), pp. 3–5. 7 See Ploman and Hamilton (n. 5), pp. 9–11, and Newcity (n. 5), pp. 3–5. 8 The impact of natural rights theories of authorship on copyright, especially on the development of English common law, is considered by Drahos (n. 5), pp. 22–8; an overview of the issues can also be found in Ploman and Hamilton (n. 5), pp. 13–14. Newcity (n. 5), p. 4 alludes to the influence of Locke on freedom of the press, but John Milton was an earlier, and impassioned, advocate of free speech. See his celebrated “Areopagitica,” published in 1644: J. Milton, Areopagitica, with commentary by Sir Richard C. Jebb and supplementary material, New York: AMS Press, 1971. 9 See Article 17 of the Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886, 1161 UNTS 3 (as revised at Paris on July 24, 1971 and amended in 1979), World Intellectual Property Organization (WIPO) online: www.wipo.int/treaties/ip/berne/index.html [Berne Convention]; its significance is discussed by S. Ricketson, “The Boundaries of Copyright: Its Proper Limitations on Exception: International Conventions in Treaties,” IPQ 1, 1999, 56, pp. 73–7. Ricketson points out that Article 17 may also be used for the purpose of controlling “monopolistic and other anti-competitive practices.” It should be noted that such provisions are not without practical effect, even in democracies. For example, in the “Spycatcher” case, surrounding the publication of memoirs by a British Secret Service agent that alleged illegality and incompetence in the department, the government of the UK attempted to restrict publication on the grounds of breach of confidence. The case failed, but the House of Lords made the interesting observation that it may have been prepared to grant the Crown an “equitable copyright” in Peter Wright’s book: Attorney General v. Guardian Newspapers (No. 2), [1990] 1 AC 109 (HL). 10 Ricketson (n. 9), p. 75.

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11 For example, in the case of the United States, the First Amendment of the Constitution protects free speech; see The US Constitution Online: www. usconstitution.net/const.html#Am1. In the United Kingdom, where the structure of the Constitution is much more complex, freedom of speech can still be identified as a cornerstone of British democracy. 12 See Newcity (n. 5), pp. 4–6. 13 For example, see the succinct comments on the history of French and German censorship in Balganesh (n. 1), footnotes 124–30 and accompanying text. 14 The incident is described in M. Hayward, On Trial: The Soviet State Versus “Abram Tertz” and “Nikolai Arzhak,” New York: Harper and Row, 1967, pp. 31–2. Hayward mentions that the term “characteristic” is used by the correspondent of Komsomolskaya Pravda in an article on the Pushkin case that “coincidentally” appeared as the Siniavski–Daniel trial was nearing its end. The poem was called “The Gabrieliad,” and is described by Hayward, p. 31, as “a blasphemous epic in which Lucifer and the Archangel Gabriel compete for the favors of the Virgin Mary, with the result that there is some question as to the paternity of Jesus Christ.” A special government commission was actually established in 1828, the year of the censorship statute that also set out copyright principles for the first time, to “investigate authorship of the poem.” As for Dostoevsky, the consequences of his participation in idealist politics, including the terrible mock execution that he endured, are described in R. Pevear’s “Introduction” to F. Dostoevsky, The Brothers Karamazov, translated by R. Pevear and L. Volokhonsky, New York: Vintage Books, 1990. 15 Hosking refers to the contribution of literature to national identity as building “[a] version of Russia as ‘imagined community’ ”: see G. Hosking, Russia: People and Empire 1552–1917, Cambridge, MA: Harvard University Press, 1997, p. 286. 16 Quoted in G. Hosking, A History of the Soviet Union 1917–1991, Final edn, London: Fontana Press, 1992, p. 408. 17 S.E. Heuman, “Perspectives on Legal Culture in Prerevolutionary Russia,” in P. Beirne (ed.), Revolution in Law: Contributions to the Development of Soviet Legal Theory, 1917–1938, Armonk, NY: M.E. Sharpe, 1990, 3, p. 3. 18 See Heuman (n. 17), pp. 5–7. 19 An alternative was presented by the anarchists, who recognized that law in Russia had been “an instrument of ruling class oppression, the antithesis to human freedom.” See Heuman (n. 17), pp. 6–7; in different forms, the same idea inspired thinkers as distinguished and diverse as Mikhail Bakunin, Prince Kropotkin, and Leo Tolstoy. 20 Heuman (n. 17), p. 8. 21 Heuman (n. 17), p. 8, note omitted. She quotes from B.A. Kistiakovskii, “Prava cheloveka i grazhdanina,” Voprosy zhizni 1, Jan 1905, 121. 22 Heuman (n. 17), p. 5. 23 See Russian Copyright Law of March 20, 1911, Polnoe Sobranie Zakonov Rossiiskoi Imperii (Sob III) [Third Complete Collection of Laws of the Russian Empire], Sanktpeterburg 1914, Vol. XXXI, Item No. 34, 935, s. 2 [Copyright Act 1911]. 24 Copyright Act 1911 (n. 23), s. 11. 25 Copyright Act 1911 (n. 23), ss. 1, 13. 26 See the analysis of droit de créer in S. Strömholm, “Droit Moral – The International and Comparative Scene from a Scandinavian Viewpoint,” IIC 14 (1), 1983, 1, pp. 16–22. 27 See Newcity (n. 5), p. 8. 28 Nevertheless, a substantial lag of more than five years intervened between the recommendation of the Russian Ministry of Justice on the urgency of a new

Notes 279

29 30 31

32

33

34 35 36

copyright law, and the actual adoption of new legislation. See Newcity (n. 5), pp. 8–9. See the detailed analysis of this issue in Hosking (n. 15), pp. 286–311. For example, see the discussion in Ploman and Hamilton (n. 5), pp. 108–16. Code de la propriété intellectuelle, Art. L-122-5 (4), online: www.celog.fr/cpi/ lv1_tt2.htm [CPI]: see Ploman and Hamilton (n. 5), p. 108. According to Pontier et al., this continues to be the case in French law today: J.-M. Pontier, J.-C. Ricci and J. Bourdon, Droit de la culture, 2nd edn, Paris: Dalloz, 1996, para. 345. However, it is true that moral rights occupy relatively little place in the French Act, though this is in some measure due to the open-ended way in which they are formulated, and Strowel feels that they are not as important in French law as they are widely said to be: see his interesting consideration of this issue in A. Strowel, Droit d’auteur et copyright: Divergences et convergences, Etude de droit comparé, Brussels: Bruylant, 1993, pp. 81–171. Pierre Recht denounces it as a myth: see the discussion in P. Recht, Le Droit d’auteur, une nouvelle forme de propriété: histoire et théorie, Gembloux: Editions J. Duculot, 1969, p. 278. See Strömholm (n. 26), pp. 428–9. The UK adopted moral rights legislation for the first time in its history in amendments to the Copyright, Designs and Patents Act 1988, c. 48. While the provisions have great symbolic significance, their practical reach is disappointingly limited. The moral rights provisions are discussed in W.R. Cornish, “Moral Rights under the 1988 Act” EIPR 11 (12), 1989, 449; they receive a vivid critique in D. Vaver, “Moral Rights Yesterday, Today and Tomorrow,” IJLIT 7 (3), 1999, 270. Vaver builds an interesting “public interest case” for moral rights, justifying them in ways that are perhaps more compatible with common-law tradition – for example, based on truth-inmarketing and cultural preservation. The author’s right was recognized “implicitly, if not explicitly”: his right was essentially the right to sell his work to the Stationers’ Company, which would have the right to copy it. See Ploman and Hamilton (n. 5), pp. 11–13. In the Statute of Anne of 1710, the author’s property right only was codified, along with the right of the publisher, which was obtained by assignment from the author. Over time, the publishers did not hesitate to invoke authors’ rights in defense of their own interests: see the discussion in Ploman and Hamilton (n. 5), pp. 13–14. Colin Tapper points out, however, that the law could have been still more skewed towards publishers, but was restrained by the lobbying of Locke, perhaps the originator of natural rights theory in the English-speaking world (Tapper in private correspondence). Note also the points made by Balganesh (n. 1), footnotes 124–30 and accompanying text, on the role of Parisian publishers in the development of French copyright law. Pushkin’s widow sued for, and obtained, this right for Russian authors: see L.P. Rastorgoueff, “The New Law of Copyright in Russia,” J Socy Comp Leg XII (I), 1912, 302, p. 307. By 1879, the association had become the International Literary and Artistic Association (l’Association littéraire et artistique internationale), the name by which it continues to be known to the present day. Two streams of theory related to moral rights are usually distinguished: the “dualist” school, separating moral and economic rights into two distinct areas, is usually associated with the development of moral rights doctrine in France, while the “monist” school, regarding the two kinds of interests as two branches of a single right, is associated with Germany. The two ways of thinking lead to different terms of protection: in France, moral rights enjoy perpetual protection regardless of the term of protection for economic rights, while Germany provides an equal term of protection for both. This distinction is not entirely clear cut: see Strömholm (n. 26), pp. 10–12. He emphasizes that the modern

280

37 38

39

40 41

42

43

44 45

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understanding of moral rights is a mixture of “French practical solutions” with “German theorizing.” For example, see the discussion in Pontier et al. (n. 31), paras 344–5. See B. Karakis, “Moral Rights: French, United States and Soviet Compliance with Article 6bis of the Berne Convention,” Touro Intl L Rev 5, 1994, 105, pp. 133–4. Her assertion is based on Levitsky’s research; however, she goes on to state that “unlike . . . copyright, an author’s moral rights, could not be passed by inheritance” – a statement that is not consistently supported by the legislation. These rights are protected in France, traditionally the strongest moral rights jurisdiction in the world: see the CPI (n. 31), Arts L 121-1, L 121-4. Though the right against excessive criticism is not specifically mentioned in the Code, it appears to be part of French tradition, and can certainly be considered one aspect of the integrity right. Michaélidès-Nouaros argues that criticism must be done “avec sincérité [with sincerity]” and in “termes corrects [appropriate terms].” See G. Michaélidès-Nouaros, Le droit moral de l’auteur: Étude de droit français, de droit comparé et de droit international, Paris: Librairie Arthur Rousseau, 1935, para. 168. See n. 9. In keeping with international trends, moral rights provisions in Soviet Russia were concerned with these three rights, and they have remained the focus of recent post-Communist legislation on moral rights. See Russian Federation Law on Copyright and Neighboring Rights (Zakon Rossiiskoi Federatsii “Ob avtorskom prave i smezhnykh pravakh”), Law No. 5351-1 of July 9, 1993, VSND i VS RF, 1993, No. 32, Item 1242; Rossiiskaia gazeta, August 3, 1993. Available in English translation, Russian Patent and Trademark Office, online: www.fips.ru/avpen/ docs.htm [updated through legislative amendments of July 19, 1995]. Amended by Federal Law No. 110-F3 of July 19, 1995, Rossiiskaia gazeta July 26, 1995; and Federal Law No. 72-F3 of July 20, 2004. It should be noted that the version of the Law on the Internet site of the Russian Patent and Trademark Office is not fully up to date: it does not include amendments to the Law in 2004 that seek to bring it into conformity with the WIPO Internet Treaties. See also the provisions on moral rights in the latest version of the Draft Civil Code (November 30, 2001), which has been translated into English by O.M. Kozyr, the drafter of the Russian original, and E.V. Luchits. The document was provided to me by David Lametti of the Faculty of Law, McGill University, Montreal, and was available at McGill as part of the Faculty’s involvement in the provision of advice to Russia on reform of the Civil Code. The difficulties of investigating copyright and moral rights in Tsarist Russia should be duly noted. A number of factors, including the intervention of dramatic historical events, the Soviet government’s frequent attempts to “erase” pre-Communist history in Russia, and the chaotic and disorganized nature of the Tsarist legal regime itself, make it challenging to reconstruct accurately the copyright regime of the era. This analysis is based on the most comprehensive consideration possible in the circumstances of original documents, documents in translation, and contemporary and historical research by legal scholars. Ustav o Tsenzure [Censorship Statute], Appendix, Polozhenie o Pravakh Sochinitelei [Law on Creators’ Rights], Articles 135–9, April 22, 1828 (as amended 1830), Polnoe Sobranie Zakonov Rossiiskoi Imperii (Sob II) [Second Complete Collection of the Laws of the Russian Empire], Sanktpeterburg 1830, Vol. III, Item Nos 1979–80. Russian Copyright Law of March 20, 1911, Polnoe Sobranie Zakonov Rossiiskoi Imperii (Sob III) [Third Complete Collection of Laws of the Russian Empire], Sanktpeterburg 1914, Vol. XXXI, Item No. 34, 935. For example, see the points made by Strömholm (n. 26), p. 423, and the general

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46 47 48 49 50 51 52

53 54 55 56 57

58

59 60 61 62 63 64 65

66

discussion in the contemporary account of the law by Rastorgoueff (n. 34), pp. 305, 308. For example, see the discussion in S.L. Levitsky, “Continuity and Change in Soviet Copyright Law: A Legal Analysis,” Rev Soct L 6 (4), 1980, 425, p. 433. See n. 43. Russian Civil Code (Svod Zakonov Rossiskoi Imperii), Polnoe Sobranie Zakonov Rossiiskoi Imperii (Sob II) [Second Complete Collection of the Laws of the Russian Empire], 1887, Volume X, Part 1, Section 420, Civil Laws. See n. 23. The episode and its consequences are described in Hosking (n. 15), pp. 142–5. Newcity (n. 5), p. 6. Of course, common-law systems offer protection to authors’ personal interests by other legal methods, including tort law. This argument was long advanced by Britain to support its claim to be in conformity with Article 6bis of the Berne Convention on moral rights, and now, to an important extent, it is employed by the United States for the same reason: see the comments in Cornish (n. 32). See V. Gsovski, Soviet Civil Law: Private Rights and their Background under the Soviet Regime, in H.E. Yntema (ed.), Michigan Legal Studies Series, Ann Arbor: University of Michigan Law School, 1948, p. 606. See Levitsky (n. 46), p. 443: his analysis supports the view that moral rights were implicitly recognized, though he points to theoretical and practical obstacles to acknowledging them openly in Soviet copyright law. For example, censorship considerations were at the origin of copyright in the UK and France as well: see the discussion in Ploman and Hamilton (n. 5), p. 10. Rastorgoueff (n. 34), p. 302 calls it “the first law of the ‘rights of writers’.” See S. Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886–1986, Centre for Commercial Law Studies, Queen Mary College, London: Kluwer, 1987, para. 7.8 on international norms of copyright duration in the nineteenth century. For example, the UK granted protection in terms of the longest of either 42 years or seven years after the death of the author; France, Belgium, and Tunisia had already adopted today’s norm of 50 years after the lifetime of the author – now pushed, by the European Union, to life plus 70 years. Note also Ricketson’s interesting comments in para. 7.5, regarding the US tradition of a 28-year renewable term of protection for copyright – potentially among the shortest in the world. The right of disclosure, or first publication – le droit de divulgation in the original French expression – is explained, and its place in the doctrine of moral rights discussed, by C. Colombet, Grands principes du droit d’auteur et des droits voisins dans le monde: Approche de droit compare, 2nd edn, Paris: Litec/Unesco, 1992, pp. 42–3. This is a significant point of continuity throughout Russian and Soviet copyright law according to Levitsky (n. 46), p. 425, as well. For a history of Russia’s involvement in bilateral copyright arrangements, see Newcity (n. 5), pp. 10–15. See the discussion in Newcity (n. 5), pp. 32–45. As Newcity (n. 5), p. 7, points out, “an author’s rights in his works were proprietary in nature and could be assigned, devised, or otherwise transferred.” See Newcity (n. 5), p. 7, and Gsovski (n. 53), p. 607. Newcity (n. 5), p. 7. See n. 54; Gsovski (n. 53), p. 607 and Newcity (n. 5), pp. 7–8; the term of protection was extended by legislation of April 15, 1857. See discussion of Russia’s Draft Civil Code provisions of 2001, and current attempts to develop the idea of civil code provisions on copyright, in Chapter 8. See Newcity (n. 5), p. 8: copyright became part of the chapter on property law in the Civil Code.

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67 See n. 48. The translated provision appears in Gsovski (n. 53), p. 607. 68 For an assessment of the event, see A. Ascher, The Revolution of 1905: A Short History, Stanford, CT: Stanford University Press, 2004. 69 The case is discussed by Rastorgoueff (n. 34), p. 302; see also Newcity (n. 5), p. 8. A similar situation arose under UK law in the case of Re Dickens [1935] Ch 267 (CA); see the comments in D. Vaver, “Authors’ Moral Rights in Canada,” IIC 14, 1983, 329, pp. 346–7 and n. 88. 70 Newcity (n. 5), p. 8. 71 Rastorgoueff (n. 34), p. 303. 72 Copyright in these kinds of works includes an exclusive right of public performance; however, a composer may reserve this right to him- or herself if he or she indicates that he or she intends to do so on each copy of the musical work in question. Public performance for non-profit or charitable purposes is generally allowed, with some special provision regarding performance on holidays (Art. 50). 73 Copyright Act 1911 (n. 23), Art. 2. Gsovski (n. 53), p. 606 comments that copyright “was conceived [in the provisions of 1828] as the exclusive right of the author or translator to publication and sale of his work during his lifetime. . . . This principle of copyright as the right of the author (droit d’auteur, Urheberrecht) was maintained by the imperial laws and taken over by the soviet [sic] legislation when protection of copyright was restored under the Soviet regime [notes omitted].” 74 Article 20 of the Copyright Act (n. 23); trans. A. Kokcharov and M.T. Sundara Rajan. 75 Gsovski (n. 53), pp. 610–11. 76 See Levitsky (n. 46), p. 433: his discussion deals with the issue of individual rights of authorship in Russian copyright law in the context of the 1928 amendments. 77 Translated by A. Kokcharov and M.T. Sundara Rajan. Of course, the provision would presumably apply a fortiori to an unauthorized publisher as well, which would extend its reach to mistreatment of the work in unauthorized publications, but would still not address mistreatment of the authorized publication by “users” other than the publisher. 78 Strömholm (n. 26), p. 423: “The moral right [of the author] is not without a tradition in Russia. The law of 1911 recognized the right to respect . . . and affirmed the inseparability of the author’s right from the author and his own heirs.” 79 Amendments and modifications of existing law, Article V, Item 620. 80 See Rastorgoueff (n. 34), p. 308. Disguising authorship was explicitly recognized as one aspect of the attribution right in the Fundamentals of Civil Legislation of 1961, Article 98. An English translation of the copyright provisions is available in Newcity (n. 5), Appendix A, p. 182. 81 Gsovski (n. 53), p. 610 explains that, [a] Russian author or the author of a publication which appeared in Russia enjoyed the exclusive right of translation, provided he printed a reservation clause on the title page or in the preface. This right was protected for ten years provided he published the translation within five years after the publication of the original. In other words, provided that the author published the translation within five years, no one else was allowed to issue an unauthorized translation for a period of ten years from the time of publication. It should be noted that scholarly works were excepted from the principle of freedom of translation, as had already been established in Russian law of the nineteenth century.

Notes 283 82 It should be remembered, however, that the provision would not apply to foreign authors. 83 For a discussion of this issue, see M.T. Sundara Rajan, “Moral Rights in the Public Domain: Copyright Matters in the Works of Indian National Poet C. Subramania Bharati,” SJLS, 2001, 161, pp. 185–90. 84 Berlin Act 1908 (November 13, 1908), Art. 7. 85 Copyright Act of 1911, (n. 23), c. 46. 86 Regarding copyright issues prior to the nineteenth century, see the quick overview in Michael Newcity’s seminal study in the English language of Russian copyright law, which followed quickly upon the heels of Russia’s historic accession to the Universal Copyright Convention in 1976: Newcity (n. 5), pp. 4–9. 87 See Ricketson (n. 57), paras 2.7 and 2.9. 88 For details, see Gsovski (n. 53), pp. 608–9; he points out that, even if Tsarist Russia’s international obligations has not been thrown into doubt by the Revolution of 1917, all of Russia’s copyright treaties would have expired by August 1, 1918. 89 Copyright Act of 1911 (n. 23), s. 32. 90 See Arts 32 and 44 in the Copyright Act, respectively concerning the publication in Russia of literary and musical works published abroad, and the comments in Rastorgoueff (n. 34), p. 305, who notes that “the law does not give them full copyright.” 91 Arts 1 (1) and 1 (2), on the subsistence of copyright. The concerns have been raised by developing countries although, in improvised music and other areas, developed countries clearly have a great interest. 92 Newcity (n. 5), p. 9. 93 See Copyright Act of 1911 (n. 23) Arts 20 and 70. 94 Pyotr Chaadaev’s statement seems apt: “It is a great mistake to suppose that unlimited freedom is a necessary condition of intellectual development. . . . We blame the government for everything. But the government is merely doing its business – that is all. So let us do ours.” Quoted in G.A. Hosking, “The Institutionalization of Soviet Literature,” in G.A. Hosking and G.F. Cushing (eds), Perspectives on Literature and Society in Eastern and Western Europe, School of Slavonic and East European Studies, University of London: Macmillan Press, 1989, 55, p. 55. 5 Revolution and reform: the transformation of copyright under Communism 1 See Hosking’s discussion of the evolution of property rights from the Bolshevik period to the post-World War II era, in G. Hosking, A History of the Soviet Union 1917–1991, Final edn, London: Fontana Press, 1992, p. 214. 2 This process is described in Boris Pasternak’s now classic novel, Dr Zhivago, originally published by Italian publisher, Feltrinelli, in 1957. See B. Pasternak, Dr Zhivago, translated by Manya and Max Hayward, with an Introduction by J. Bayley, New York: Knopf, 1991. 3 See C. Prins, “Emile Zola Receives an Answer: The Soviet Union is to Join the Berne Convention,” EIPR 13 (7), 1991, 238, pp. 239–40. Prins indicates that this was accomplished through a Decree of December 29, 1917 – Decree on the State Publishing House (December 29, 1917), Decree of the All-Russia Central Executive Committee, Sobranie uzakonenii i rasporiazhenii roche-krestianskogo pravitel’stva RSFSR [Collection of Legislative Acts and Resolutions of the Workers’ and Peasants’ Government of the RSFSR] (1918), No. 14, item 201. However, this Decree establishes the nationalization of collections of books,

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5 6 7 8

9

10

Notes and makes provision for reprinting classic Russian works whose copyright has expired. One wonders if Prins means to refer to the Decree of the Council of People’s Commissars of November 26, 1918, On the Recognition of Scientific, Literary, Musical, and Artistic Works as State Property (November 26, 1918), Sobranie uzakonenii i rasporiazhenii roche-krestianskogo pravitel’stva RSFSR [Collection of Legislative Acts and Resolutions of the Workers’ and Peasants’ Government of the RSFSR] (1918), No. 86, item 900, or the Decree On Declaring a State Monopoly on the Publication of the Works of Certain Writers (January 18, 1923), Decree of the People’s Commissariat of Education of the RSFSR, Sobranie uzakonenii i rasporiazhenii roche-krestianskogo pravitel’stva RSFSR (1923), No. 16, item 213. English translations of the Decrees and other documents related to Soviet copyright law of the period may be found in P.B. Maggs (ed.), Soviet Statutes and Decisions, XIV (1) (Fall 1977), New York: M.E. Sharpe. Attention must be drawn to the remarkable publications in Volume XIV of this journal of translations, entirely devoted to the law of copyright and publishing. Included in this group of translated documents are not only key pieces of Soviet copyright legislation, but also excerpts of a number of judicial decisions on copyright matters, virtually unavailable elsewhere in English translation, and only with greatest difficulty in the Russian original. The volume is an invaluable resource for Western lawyers and scholars interested in investigating the history of copyright in Russia and the former Soviet Union. Decree of November 26, 1918 (n. 3); see Prins (n. 3), p. 240. Strictly speaking, the decree did not nationalize the works of living authors, but it gave to the early Soviet government the opportunity to nationalize works essentially at its discretion. Indeed, the breadth of these powers is astonishing, as the possibility of nationalization extended even to unpublished works, and could be exercised simply by a decree of the People’s Commissariat of Education that the work was the property of the Russian Socialist Federated Soviet Republic. Notwithstanding Prins’ citation of a Decree of 1917 as the source of the nationalizations of classic Russian works (see n. 3), the 1918 Decree applied the same method of expropriation by decree to works of living and deceased authors. It is also worth noting that the decree did not actually make works “public,” in the sense of throwing open the right to publish to anyone, but it actually made these works state property, subject to the provision of the People’s Commissariat of Education for Printing and Distribution. This presents a marked contrast to the true “publicizing” of copyright attempted in India, for example: see M.T. Sundara Rajan, “Moral Rights in the Public Domain: Copyright Matters in the Works of Indian National Poet C. Subramania Bharati,” SJLS, 2001, 161, pp. 185–90. S. Fitzpatrick, The Cultural Front: Power and Culture in Revolutionary Russia, Ithaca, NY: Cornell University Press, 1992, pp. 6–7. The position of writers with respect to the “cultural revolution” initiated by the Bolsheviks is discussed by Hosking (n. 1), pp. 178–82. An example is the case of the Indian National Poet whose copyright was placed in the public domain by the Indian government, discussed in Sundara Rajan (n. 4). The purpose of the policy was, of course, to make important literature widely available; but its impact on the integrity of the works, especially when the copyright enters the public domain so quickly, can be devastating. The issues are discussed in Sundara Rajan (n. 4). The example of Pushkin’s widow pleading for extended copyright benefits illustrates the problem. The impoverishment of literary families, especially in cases where the poet may have died prematurely, can be an injustice. Madame Pushkin’s suit is discussed by L.P. Rastorgoueff, “The New Law of Copyright in Russia,” J Socy Comp Leg XII (I), 1912, 302, p. 307. Arts 7 and 8 of the Decree state that this assistance will be available in the case

Notes 285

11

12

13 14 15 16 17 18

19 20

of “relatives who are needy or unable to work,” extending to “a spouse not receiving support from other property left by the decedent.” It should be noted that, according to Art. 9 of the Decree, even in the case of authors whose works had not been declared state property, the availability of inherited royalties was restricted to situations of “needy” descendants of the author. Otherwise, “[t]he publishers shall be free from this obligation if no relative is left by the deceased and needs social security.” Decree of November 26, 1918 (n. 4). The reach and importance of moral rights for cultural heritage are examined in M.T. Sundara Rajan, “Moral Rights and the Protection of Cultural Heritage: Amar Nath Sehgal v. Union of India,” Intl J Cult Prop 10 (1), 2001, 79, pp. 79–83, 89–90. S.L. Levitsky, “Continuity and Change in Soviet Copyright Law: A Legal Analysis,” Rev St L 6 (4), 1980, 425, p. 425 mentions that Upton Sinclair was the only author whose works were nationalized under the 1918 decree. However, according to M.A. Newcity, Copyright Law in the Soviet Union, New York: Praeger Special Studies, 1978, p. 19, Russian translations of the works of Upton Sinclair and the writings of Georgy V. Plekhanov were nationalized by a third decree, issued on May 14, 1925. In fact, the works of the two writers appeared to have been nationalized in two separate Decrees of the same date: On the Recognition of All the Works of GV Plekhanov as the Property of the RSFSR (May 14, 1925), Sobranie uzakonenii i rasporiazhenii roche-krestianskogo pravitel’stva RSFSR (1925), No. 43, item 309; and On the Recognition of all the Translations into the Russian Language of the Works of Upton Sinclair as the Property of the RSFSR (May 14, 1925), Sobranie uzakonenii i rasporiazhenii rochekrestianskogo pravitel’stva RSFSR (1925), No. 45, item 336. The Decree on Plekhanov and relevant excerpts from the Decree on Sinclair are available in English translation in Soviet Statutes and Decisions (n. 3), pp. 15–16. Levitsky (n. 12), p. 429. Hosking (n. 1), p. 119, in a chapter on the “New Economic Policy and Its Political Dilemmas,” comments on the government’s need to “restore freedom of private trade.” Newcity (n. 12), p. 20. See the discussion of the circumstances surrounding Mayakovsky’s death in Hosking (n. 1), pp. 181, 183. Copyright Act, USSR Laws 1925, No. 67 (January 30, 1925). Copyright Act, USSR Laws 1928, No. 246 (May 16, 1928). An English translation of a number of the provisions may be found in J.N. Hazard, Materials on Soviet Law, New York: Columbia University, 1947, pp. 35–7. See R. Sharlet, P.B. Maggs, and P. Beirne, “PI Stuchka and Soviet Law,” in P. Beirne (ed.), Revolution in Law: Contributions to the Development of Soviet Legal Theory, 1917–1938, Armonk, NY: M.E. Sharpe, 1990, 45, p. 48. They observe [t]o our knowledge, there was no serious debate about law among Russian Marxists before 1919. . . . Stuchka himself . . . [comments that] there was no theoretical work on law from a revolutionary Marxist perspective before December 1919. It was at this date that the Collegium of the People’s Commissariat of Justice, of which Stuchka had been Commissar since March 1919, provided the first official Soviet definition of the concept of law. V.I. Lenin, The State and Revolution, in D. McLellan (ed.), The Essential Left: Marx, Engels, Lenin, Mao: Five Classic Texts on the Principles of Socialism, New Edn, London: Unwin Paperbacks (Counterpoint), 1986. Substantial excerpts from the General Theory may be found in P.B. Maggs (ed.), Pashukanis: Selected Writings on Marxism and Law, New York: Academic Press, 1980; portions are reprinted in W.E. Butler (ed.), Russian Legal Theory, The International Library of Essays in Law and Legal Theory Series, T.D. Campbell (ed.), New York: New York University Press Reference Collection, 1996, pp. 229–320.

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21 Pashukanis and his work were rehabilitated in 1953: see P. Beirne and R. Sharlet, “Toward a General Theory of Law and Marxism: E.B. Pashukanis,” in P. Beirne (ed.), (n. 18), 17, p. 19. 22 See Russian Copyright Law of March 20, 1911, Polnoe Sobranie Zakonov Rossiiskoi Imperii (Sob III) [Third Complete Collection of Laws of the Russian Empire], Sanktpeterburg 1914, Vol. XXXI, Item No. 34,935, s. 2 [Copyright Act 1911]. 23 Levitsky (n. 12), p. 426. 24 Amendments to US Copyright Act 1909: Copyright Law of the United States of America, being the Act of March 4, 1909 (entered into force July 1, 1909); as amended by the Acts of August 24, 1912, March 2, 1913, and March 28, 1914; ss 23 and 24. 25 See Levitsky (n. 12), p. 429. 26 Levitsky (n. 12), p. 432: it should be noted that Levitsky prefers to deal with the RSFSR Act of 1926, which was, however, bound by law and practice to follow the “principles” (osnovy) of 1925. 27 See n. 17. 28 Fundamentals of Civil Legislation of the Union of Soviet Socialist Republics and the Union Republics, c. IV, VVS SSSR, 1961, No. 50, Item 525. 29 Levitsky (n. 12), p. 429. It should be noted that Levitsky is discussing provisions of the RSFSR Copyright Act of 1926, based on the 1925 USSR legislation, which presumably remained in the 1928 Act. Levitsky’s own analysis moves quite freely between the two: for example, see Levitsky (n. 12), p. 431. 30 V. Gsovski, Soviet Civil Law: Private Rights and Their Background under the Soviet Regime, H.E. Yntema (ed.), Michigan Legal Studies Series, Ann Arbor: University of Michigan Law School, 1948, pp. 610–11. 31 “A Text Writer’s Opinion,” Grazhdanskoe Pravo (Civil Law), Part I, Moscow 1938, 254–5; translated in Hazard (n. 17), p. 35. 32 See ss 7 and 16, reprinted in English translation in Hazard (n. 17). 33 Levitsky (n. 12), p. 433. But see I. Pozhitkov, “Copyright and Neighboring Rights Protection in the Russian Federation,” Rev Central and E Eur L 20 (1), 1994, 53, p. 76: his assertion that “Soviet law did not recognize moral liability” must refer to Soviet law after 1961, notably, the special remedies for infringement of moral rights in Article 499 of the RSFSR Civil Code of 1964: VVS RSFSR, 1964, No. 24, at 406. 34 A right of alienation is generally considered a strength, and it certainly contributes to the force of authors’ property rights. In relation to moral rights, however, an extensive right of alienation would tend to diminish their power – for example, by allowing standard waivers to become industry practice, as has happened in some of the most influential common-law jurisdictions. It is for this reason that strong moral rights jurisdictions, such as France, specify that they are inalienable, and can only be waived in limited circumstances. These issues are among those discussed by C. Colombet, Grands principes du droit d’auteur et des droits voisins dans le monde: Approche de droit comparé, 2nd edn, Paris: Litec/Unesco, 1992, pp. 40–55. 35 See Levitsky (n. 12), p. 433. 36 Levitsky (n. 12), p. 433, and see also p. 443. 37 See the description of ongoing changes to the law in Newcity (n. 12), pp. 26–9. 38 Fundamentals of Civil Legislation (n. 28). 39 See Newcity (n. 12), p. 27; he draws attention to the importance of television. 40 Levitsky (n. 12), p. 443. 41 See Fundamentals (n. 28). 42 See Levitsky (n. 12), p. 439.

Notes 287 43 This point is emphasized by Levitsky (n. 12), p. 439. 44 For details of the problem, see Levitsky (n. 12), p. 444. 45 The quotation is from Strogovich, and appears in Levitsky (n. 12), pp. 443, 460 (n. 57). See RSFSR Code (n. 33) (as amended through October 1976), Article 499 on “Protection of the Personal Non-Property Rights of the Author”: an English translation may be found in Newcity (n. 12), p. 495, and on the Russian legal database, Garant. 46 See Hosking (n. 1), p. 413. 47 Levitsky (n. 12), p. 452; Prins (n. 3), p. 242 points out that the amendments to Soviet law only took effect on June 1, 1973. Universal Copyright Convention, UNTS No. 13444, Vol. 943, 178–325 (UCC) (1952 Geneva text, as amended Paris on July 24, 1971). 48 The period was to be calculated from January 1 of the year following the author’s death, rather than January 1 of the year of his or her death: see the comparative texts of Article 105 of the Fundamentals, before and after the UCC-related revisions, reproduced in English translation in Newcity (n. 12), 186. As early as 1857, however, Russian authors had enjoyed a term of protection of lifetime of the author, and 50 years after his or her death. See Chapter 4. 49 See the discussion on “Changes mandated by accession to the UCC” in Levitsky (n. 12), pp. 453–5. 50 For example, see the list of socialist countries and each country’s membership in the different versions of the two Conventions: see M. Ficsor, “The Past, Present and Future of Copyright in the European Socialist Countries,” RIDA 118, 1983, 33, p. 58. The Soviet Union was not a member of the Berne Convention, and it had adhered only to the 1952 Geneva version of the UCC. 51 The term is used broadly in scholarly literature to denote Russia’s developmental difficulties – though it is not fortuitous. 52 Prins (n. 3), p. 239. 53 An example is the case of American director, John Huston’s, film “The Asphalt Jungle”; the director’s estate argued that the colorization of the film amounted to a violation of his right of integrity. The claim was supported by a French court, and the colorized version of the film was withdrawn from circulation. The French case was a victory for the director’s aesthetic sense, but it was gained at the cost of losses for the film’s distributors. Huston c Turner Entertainment, CA (Court of Appeals) Versailles, ch réunies, December 19, 1994, 164 RIDA 389 (1995), on remand from Cass 1e civ, May 28, 1991, 149 RIDA 197 (1991). 54 Concerns like these generated a crisis in international copyright law, which was resolved by the adoption of the Stockholm Protocol on “Special Provisions Regarding Developing Countries.” The circumstances surrounding the development of the Protocol and its importance for developing countries and international copyright, generally, is discussed by S. Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886–1986, Centre for Commercial Law Studies, Queen Mary College, London: Kluwer, 1987, pp. 593–664. 55 See Ricketson (n. 54), para. 2.7, on the international literary congress of 1878, leading to the foundation of the Association littéraire et artistique internationale (ALAI), which produced the first draft of an international convention for authors’ rights in 1883. 56 Translators were granted a copyright in their translations as original works, but their right to translate depended on the consent of the author of the original work. See Article 8 of the Berlin Act, 1908. 57 Samizdat means “self-publishing”; the term was a retort to gosizdat, state publishing. See Ricketson’s comments on the copyright status of samizdat: in his view, samizdat could not meet Berne requirements to qualify as “published” works. Ricketson (n. 54), para. 5.38, and accompanying notes. An interesting

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58 59

60 61 62 63 64 65 66 67 68 69 70 71 72 73

74 75 76 77 78 79 80 81

82

Notes chronicle of samizdat, its history, and a number of important texts appear in French in Samizdat: La voix de l’opposition communiste en URSS, Paris: Combats Seuil, 1969. Newcity (n. 12), p. v. As translated in Newcity (n. 12), Appendix A, p. 187; see Newcity (n. 12), pp. 153–4. It should be noted that, under this provision, only the governments of the republics, rather than the federal government, could effect a compulsory purchase. This represented a change in the law from 1928 to 1961: see S.L. Levitsky, “The State As a Subject of Copyright in Soviet Law,” J Media L and Prac 1 (2), 1980, 137, p. 143. Levitsky (n. 59), p. 141. Levitsky (n. 59), pp. 141, 142. From the perspective of making works available as widely as possible, the policy is certainly understandable. This point is also made by Levitsky (n. 59), p. 142, who observes that, even under the earlier Soviet legislation of 1925 and 1928, acquisition of an author’s copyright by the state did not include the author’s moral rights. Levitsky (n. 59), pp. 141–2. According to L.V. Glebova, this was the main reason underlying the compulsory purchase provisions: Glebova (1972), cited in Levitsky (n. 59), p. 144. Dmitry Shostakovich et al. v. Twentieth Century-Fox Film Corporation, 196 Misc 67; 80 NYS 2d 575, 77 USPQ 647 (1948). The circumstances of the case are described by Newcity (n. 12), pp. 34–5. Shostakovich (n. 65); Newcity (n. 12), p. 68. Shostakovich (n. 65). RSFSR Civil Code (n. 33) Art. 496; the minimum duration of copyright specified in the Fundamentals was simply the lifetime of the author – see Art. 105. For example, see Nationalization Decree of 1918 (n. 4). This was the case until 1964: see Newcity (n. 12), p. 35. See Huston (n. 53). Newcity (n. 12), p. 155. While it appears that the original decision is now unavailable, the case was the subject of a number of news reports. See S. Topping, “Soviet Writers Sues in France; Distorted Translation Charged. Kuznetsov Asks Lyons Court to Impound Books of a Catholic Publisher – Says Novel’s Red Theme Was Twisted,” New York Times, January 20, 1961, p. 4; “Soviet Author Wins Damages in France,” New York Times, February 22, 1961, p. 6. See Newcity (n. 12), pp. 155–6. See Newcity (n. 12), p. 156, (n. 18). Newcity (n. 12), p. 153. Newcity (n. 12), p. 153. Times of London, March 27, 1973, 8, Column 1; quoted in Newcity (n. 12), p. 152. Newcity (n. 12), p. 157. See the interesting discussion of Kant’s approach to authors’ rights in A. Strowel, Droit d’auteur et copyright: Divergences et convergences – Etude de droit compare, Brussels: Bruylant, 1993, pp. 98–9. It is interesting to note that doctrinal differences have recently placed France, as well, in a situation of difficulty with respect to international copyright. For example, see Fraser’s discussion of the French position on “cultural industries” in international copyright agreements: S. Fraser, “Berne, CFTA, NAFTA & GATT: The Implications of Copyright Droit Moral and Cultural Exemptions in International Trade Law,” Hastings Comm and Ent LJ 18, 1996, 287. See n. 18; the influence of the German law of 1901 is noted by Newcity (n. 12), p. 8. Law Respecting Copyright in Works of Literature and Music, of

Notes 289 June 19, 1901, as amended by the Law of May 22, 1910. 83 According to Newcity (n. 12), p. 83, the amendments to copyright law necessitated by Soviet accession to the Universal Copyright Convention in 1973 finally transformed the right into a property-style right, notwithstanding Soviet distaste for this terminology. 84 Levitsky observes that, in the important copyright legislation of 1928, the “[Soviet] legislator still hesitated in calling ‘personal’ interests by their name”: see Levitsky (n. 12), p. 433. 85 For example, see Levitsky’s comments on the motivation behind copyright reform in the period from 1960 to 1964: S.L. Levitsky and W.B. Simons, Copyright in Russia and the USSR: A Selected Bibliography of Works Published in English, German, French and Russian: 1827–1983, Vienna: Manzsche Verlagsund Universitätsbuchhandlung, 1985, pp. 23–5. 86 Moral rights were protected in the 1928 legislation, but in a more restrictive and oblique manner: see discussion in Chapter 4. 87 See the discussion of the Soviet approach to “inviolability” above, especially at notes 41–4 and accompanying text. Compare with Article 6bis (1) of the Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886, 1161 UNTS 3 (as revised at Paris on July 24, 1971 and amended in 1979), World Intellectual Property Organization (WIPO) online: www.wipo. int/treaties/ip/berne/index.html [Berne Convention], which states: Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation [my italics]. The Soviet right resembled French law of the time, which, as DaSilva points out, “means that the artist has a right to preserve his work from any alteration or mutilation whatsoever”: see Article 6, Loi du 11 mars 1957 sur la propriété intellectuelle et artistique, JO March 14, 1957, p. 2723 (amended JO April 19, 1957, p. 4131), and R.J. DaSilva, “Droit moral and the Amoral Copyright: A Comparison of Artists’ Rights in France and the United States,” Bull Copyrt Socy USA 28, 1980, 1, p. 31. 88 Hosking (n. 1), p. 408 observes that the Russians had a long tradition of “alternative government” by writers. 89 Shostakovich was the first composer trained in the Soviet system who came to international prominence. At first, his success was embraced by the Soviet state, which held him up as an example of the creative potential of the new society. Shostakovich’s opera, “Lady Macbeth of the Mtsensk District,” was widely performed in the Soviet Union by the leading opera companies of Leningrad and Moscow. However, after a Moscow performance in 1936 attended by Stalin, a devastating editorial was published in Pravda. Not only did the review “attack . . . [the] opera root and branch,” in Sheila Fitzpatrick’s words, but it also made use of the occasion for a wide-ranging attack on cultural innovation in the Soviet Union. Interestingly, the author of the unsigned editorial was believed to be Andrei Zhdanov, a member of the Politburo and close associate of Stalin. A detailed discussion of the Shostakovich case, and an analysis within the broader context of government control, manipulation, and repression of the musical world, is provided by Fitzpatrick (n. 5), pp. 183–215. She points out that “his disgrace on each occasion proved temporary and his status as an acknowledged ‘great Soviet composer’ survived these debacles.” 90 See Gsovski (n. 30), p. 616; n. 127 below and accompanying text. 91 See Gsovski (n. 30), p. 614: RSFSR Laws 1932, text 288; Provisional Rules

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95 96 97

98 99 100

101 102 103 104 105 106 107 108

109 110 111

112 113

Notes Issued by the Main Office of Police (Militsia) of the RSFSR of December 7, 1931, No. 576957. See also Newcity (n. 12), p. 71. See Hosking (n. 1), p. 411. The incident is described by Hosking (n. 1), p. 411. Vsesouznoe agentsvo po avtorskaim pravam: see G. Walker, Soviet Book Publishing Policy, Cambridge: Cambridge University Press, 1978, pp. 76–7. See also Newcity (n. 12), p. 25; E. Muravina, “Copyright Transactions in Russia Part I. The VAAP Era: 1973–1991,” New Matter, Winter 1993, 4, p. 4. Muravina (n. 94), p. 7. Muravina (n. 94), p. 4. Muravina (n. 94), p. 4 also draws attention to a Decree of the Council of Ministers (Decree No. 231) of March 15, 1989, which “designated the agency as an equivalent of a governmental ministry,” bringing formal reality to the Agency’s historical role. Muravina (n. 94), p. 6; footnotes omitted. Newcity (n. 12), pp. 152, 157. Newcity (n. 12), p. 72. The Russian tradition of writing “for the desk drawer,” or “self-publishing,” known as samizdat, is discussed by Y. Feofanov and D. Barry, “The Siniavskii–Daniel Trial: A Thirty Year Perspective,” Rev Cent and E Eur L 22 (6), 1996, 603, p. 606 and Hosking (n. 1), pp. 412, 415. See n. 57: the term is a parody of Gosizdat, the official name for state publishing. The formation of Gosizdat, an amalgamation of five earlier publishing houses, is described by P. Kenez, The Birth of the Propaganda State: Soviet Methods of Mass Mobilisation 1917–1929, Cambridge: Cambridge University Press, 1985, pp. 100–4. The role of the editors, and the general contribution of the journal and others like it to greater intellectual openness, is discussed by Hosking (n. 1), p. 410. Hosking (n. 1), p. 411. Interview with Yevtushenko, “Red Spring (The Sixties) Episode 14,” online: www.cnn.com/SPECIALS/cold.war/episodes/14/interviews/yevtushenko/. See nn. 57 and 100. Hosking (n. 1), p. 312. Hosking (n. 1), pp. 312–13. Newcity (n. 12), p. 73; he cites Baumgarten (1973). Freedom from accountability is the “dark side” of anonymity, and political accountability has historically been one of the reasons behind the need to identify authors. This question is addressed in an interesting analysis by M. Foucault, “What Is an Author?,” in P. Rabinow (ed.), The Foucault Reader, New York: Pantheon Books, 1984, 101, pp. 105–13. Foucault goes on to make the interesting point that “[t]he author is the principle of thrift in the proliferation of meaning. . . . The author is . . . the ideological figure by which one marks the manner in which we fear the proliferation of meaning.” For example, the right of integrity in section 18 of the 1928 copyright statute was specifically a right against the publisher: n. 24. An English translation appears in Hazard (n. 17), pp. 35–7. This continues to be the case at the present time, though the introduction of the legal database, Garant, has somewhat improved the general accessibility of case law. See Leningrad Drama Union v. Lunacharsky State Drama Theater of Sverdlovsk (February 23, 1928), 9 Sudebnaia praktika RSFSR 7 (Civil Cassation Division of the Supreme Court of the RSFSR); English translation Soviet Statutes & Decisions (n. 3) Vol. XIV No. 2 (Summer 1978), p. 406. Lunacharsky (n. 111). Brodsky was tried under an RSFSR law of May 4, 1961 that made “parasitism” an administrative offense, rather than a criminal one. If the terminology seems

Notes 291

114

115

116 117 118 119 120 121 122

123

124

125 126 127 128

lenient, it is worth considering that Brodsky was ultimately sentenced to five years in a labor camp, his case heard without any of the protections built into criminal trials by Soviet criminal procedure, much of it substantially reformed during the 1950s. See H. Berman, Soviet Criminal Law and Procedure: The RSFSR Codes, translated by H. Berman and J.W. Spindler, Russian Research Centre Studies 50, 2nd edn, Cambridge, MA: Harvard University Press, 1966. The case is discussed, and a transcript of most of the hearing provided, in R.E. Burford, Jr., “Getting the Bugs Out of Socialist Legality: The Case of Joseph Brodsky and a Decade of Soviet Anti-Parasite Legislation,” AJCL 22, 1974, 465, especially pp. 494–502. Some fascinating excerpts from the trial are readily available in the NationMaster encyclopedia online: www.nationmaster.com/encyclopedia/HJoseph-Brodsky. See also Muravina (n. 94), p. 6 and accompanying notes. Dunaevskii v. State Publishing House for Collective and State Farm Literature (March 14, 1951) 7 Sudebnaia praktika SSSR 40 (Judicial Division for Civil Cases of the Supreme Court of the USSR). Soviet Statutes & Decisions (n. 3) Vol. XIV No. 4 (Summer 1978), p. 386. On the practice of consideration by courts of disputes arising from copyright (December 19, 1967), (1968) 1 Biulleten’ Verkhovnogo Suda SSSR 13; English translation in Soviet Statutes & Decisions (n. 3), Vol. XIV No. 2 (Winter 1977–78), pp. 177–84, 184–7. Art. 2. Art. 1. Art. 5. Art. 6 (c). Art. 6 (d). Professor Colin Tapper, in private correspondence. Art. 10. See Muravina (n. 94); she cites W.B. Simons, now professor of law at Trento University in Italy, on the “partial[ly] codified” character of Soviet law; he emphasizes its dependence, not only on legal and “extralegal” rules, but also, on the “prevalence of unpublished rules and regulations.” But see E. Muravina, “Copyright Transactions in Russia. Part II. ‘PostGlasnost Days,’ ” New Matter, Spring 1993, 25, p. 26: she mentions the case of Russian author Bogomolov recalling his novel, August 1944, from the production of a film based on the book. The book changed the setting of the novel, to his displeasure, and the film was subsequently destroyed. Muravina does not mention whether this situation led to a legal dispute. If the recall was only from the use of the novel by the film director, it is also not what is strictly understood as the moral right of withdrawal, which would signify the recall of all copies of a work in circulation. This seems like the simpler issue of breach of contract. It is not clear whether Bogomolov did recall his novel from circulation, but this does not appear to have been the case. Théberge v. Galerie d’Art du Petit Champlain Inc., [2002] 2 S.C.R. 336, 17 C.P.R. (4th) 161; Desputeaux c Editions Chouette (1987) Inc, [2003] 1 S.C.R. 178, 23 C.P.R. (4th) 417, ss I, II, III (copyright provisions), IV D, and Conclusion; and Confetti Records v. Warner Music UK Ltd, [2003] E.M.L.R. 35, E.C.D.R. 31 (Ch D), paras 145–64. The incident is described by Hosking (n. 1), pp. 410–11. Hosking (n. 1), pp. 350–3 discusses Khrushchev’s progress towards a new idea of “socialist legality,” as well as the conflict between legality in party control that was to lead to enduring “tensions and ambiguities in the legal reforms.” Newcity (n. 12), p. 126; he points out that, “[a] similar organization was established in the Union of Soviet Artists.” Gsovski (n. 30), pp. 616–17. He quotes from a Resolution of the Central

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130 131

132

Notes Committee of the Communist Party of August 14, 1946 (1946) Bolshevik (in Russian) No. 17/18, 13. For example, in the notorious Siniavski–Daniel prosecution of 1966, Daniel’s unpublished works were used as evidence against him: see Trial Transcript, published in English translation in M. Hayward, On Trial: The Soviet State Versus “Abram Tertz” and “Nikolai Arzhak,” New York: Harper and Row, 1967, p. 110. See Ricketson (n. 54). B. Karakis, “Moral Rights: French, United States and Soviet Compliance with Article 6bis of the Berne Convention,” Touro Intl L Rev 5, 1994, 105, p. 33 seems to emphasize the impossibility of an author suing a publisher: she observes, “in theory, the author could legally demand that all “mutilated” copies . . . be withdrawn from publication. However, not one single case dealing with such a claim has been reported in the Soviet system, in spite of the fact that, according to Olympiad Ioffe . . . ‘not infrequently the so-called editorial protection of creative works actually involved intentional distortion.’ ” See nn. 113–19 and accompanying text.

6 Creative freedom on trial: the Siniavski–Daniel case 1 The circumstances surrounding the so-called “secret speech,” as well as its content, are described by G.A. Hosking, A History of the Soviet Union 1917–1991, Final edn, London: Fontana Press, 1992, pp. 334–7. The speech was delivered before a special “closed session,” following the Twentieth Communist Party Congress of 1956; it dealt primarily with the impact of Stalin’s repression on the Party elite, rather than the experience of the population at large. Although it was not published in the Soviet Union, the speech immediately became known abroad because of the presence of foreign Communist leaders, who had been invited to the session by Khrushchev. 2 A “zek” was an inmate of a prison camp. Hosking (n. 1), pp. 412–13 discusses the public sensation caused by the appearance of Solzhenitsyn’s work. 3 On this theme, see the fascinating interview with Yevgeny Yevtushenko, Red Spring (The Sixties), Episode 14, CNN Perspectives Series, online: www.cnn.com/SPECIALS/cold.war/episodes/14/interviews/yevtushenko/. 4 See Chapter 5, nn. 110–21 and accompanying text. 5 R. Service, A History of Twentieth-Century Russia, London: Penguin Books, 1997, p. 381, points out that the dissidents referred to themselves as “inakomyshlyashchie,” “other-thinkers.” He observes: “This was a neat term which encapsulated the origin of their predicament: namely that they disagreed with the postulates of the ruling ideology.” 6 Interestingly, both writers were pall-bearers at Pasternak’s funeral. Hosking (n. 1), p. 412 draws attention to the fact that their participation was one form of protest against the persecution he endured. 7 See M. Hayward, On Trial: The Soviet State Versus “Abram Tertz” and “Nikolai Arzhak,” New York: Harper and Row, 1967, p. 14. 8 Hayward (n. 7), pp. 5–7, 14. Daniel was of Jewish origin. 9 See J.E. Turner, “Artists in Adversity: The Siniavskii–Daniel Case,” in T.L. Becker (ed.), Political Trials, New York: Bobbs-Merrill, 1971, 107: he calls Siniavski “a revisionist critic who was influenced by the revelations about the Stalin era.” See also Hayward (n. 7), pp. 3–8 on the evolution of Siniavski’s attitudes towards the Soviet state. Hélène Peltier-Zamoyska, a long-standing friend of Siniavski and the person who arranged for the manuscripts to leave the Soviet Union, comments that Siniavski had close personal ties with the

Notes 293

10 11 12 13 14 15 16 17 18 19 20 21

22 23 24

25

Revolution, as his father had apparently been a “militant revolutionary” (reproduced in Hayward n. 7, pp. 4–5). Feofanov emphasizes this point: see Y. Feofanov and D. Barry, “The Siniavskii–Daniel Trial: A Thirty Year Perspective,” Rev Cent and E Eur L 22 (6), 1996, 603, p. 616. Trial Transcript, reproduced in English translation in Hayward (n. 7), p. 110. This information is mentioned in Turner (n. 9), p. 115. Hayward (n. 7), p. 15. One would assume that the Russian-only publications were directed at the Russian-speaking Soviet émigré population, and at scholars of the Soviet Union. Hayward (n. 7), p. 16. Cited in Feofanov and Barry (n. 10), p. 612. Hayward (n. 7), p. 15. Quoted in Hayward (n. 7), p. 10. The story is described and analyzed by Hayward (n. 7), p. 16, and the controversial passage is reproduced in Hayward pp. 17–18. The influence of Dostoevsky, whose work was pre-occupied with this question, on Siniavski is mentioned in Peltier-Zamoyska’s comments, cited in Hayward (n. 7), p. 3. Mikhail Bakhtin, a Russian literary critic, has explored some of the implications of skaz. His terminology has been borrowed by English critics – for example, to describe some of the ingenious psychological effects of D.H. Lawrence’s writing. See N.H. Reeve “Introduction” in D.H. Lawrence, The Woman Who Rode Away and Other Stories (First Published 1928), D. Mehl and C. Jansohn (eds), Cambridge: Cambridge University Press, 1995, p. xxvii. Reeve (n. 21), p. xxvii. See exchange between Prosecutor and Daniel in the Trial Transcript, Hayward (n. 7), pp. 59–62, and Siniavski’s discussion of his own artistic debt to Dostoevsky in Hayward pp. 97–8. Law of the RSFSR on the Issuance of the Criminal Code of the RSFSR, VVS RSFSR, 1960, No. 40, Item 591 (October 27, 1960); see also Law of the RSFSR on the Issuance of the Code of Criminal Procedure of the RSFSR, VVS RSFSR, 1960, No. 40, Item 592. The translation of Article 70 appears in Hayward (n. 7), p. 21; a translation that is somewhat differently worded may be found in Feofanov and Barry (n. 10), pp. 611–12. Hayward clarifies the meaning of exile, ssylka: it refers to the period of “enforced residence in a designated area after the completion of the term of imprisonment, or as an alternative to it.” In other words, exile could either supplement or replace punishment by imprisonment. An English translation of the entire RSFSR Criminal Code of 1960, including Article 70, may be found in H. Berman, Soviet Criminal Law and Procedure: The RSFSR Codes, translated by H. Berman and J.W. Spindler, Russian Research Centre Studies 50, 1st edn, Cambridge, MA: Harvard University Press, 1966. Interestingly, this happened in the case of Shostakovich v. 20th Century-Fox: the music of Shostakovich, Prokofiev, Khachaturian, and Miaskovsky was used in the soundtrack for a film on Soviet espionage activities in Canada, “The Iron Curtain.” Not surprisingly, the Soviet government felt that the film was antiSoviet and sued on behalf of the composers, claiming that their moral right of integrity had been violated. The Soviet government lost the case in the United States, but won in France. See Dmitry Shostakovich et al. v. 20th Century-Fox Film Corp, 80 NYS 2d 575 (1948); Société le Chant du Monde v. Société Fox Europe et Fox Americaine 20th Century [1953] 1 Gaz Pal 191. The case is also discussed in R.J. DaSilva, “Droit moral and the Amoral Copyright: A Comparison of

294

26 27

28 29 30 31 32 33 34 35 36 37 38 39 40

41 42 43 44

45 46 47 48

Notes Artists’ Rights in France and the United States,” Bull Copyrt Socy USA 28, 1980, 1, pp. 1–2. Berman (n. 24), pp. 23–5. Berman (n. 24), pp. 82, 80–7. Berman’s general discussion of the burden of proof and the “presumption of innocence” is illuminating. In particular, he points out that the terminology of a “presumption” has a strength in the Russian language that is not present in English or other Western European languages. However, on his analysis, the concept of “innocent until proven guilty” seems very much in keeping with the spirit of the criminal reforms. Berman (n. 24), p. 80. For example, see Turner (n. 9), pp. 115–16: he mentions “Russian emigré organizations and Radio Liberty in Munich” as avenues of concern to the Soviet government. Noted in Turner (n. 9), pp. 114–15. Hayward (n. 7), p. 21. As translated in M.A. Newcity, Copyright Law in the Soviet Union, New York: Praeger Special Studies, 1978, Appendix A, p. 182; and see Appendix B, p. 189. Hayward (n. 7), p. 35. See Turner (n. 9); Tyomushkin was Assistant ProsecutorGeneral of the USSR, and the chief prosecutor in the Siniavski–Daniel case. Feofanov and Barry (n. 10), p. 605. See the discussion of the Brodsky case in Chapter 5, nn. 97–8, 113, and accompanying text. See Service (n. 5), pp. 175–200, for a discussion of some of the Stalinist “legal proceedings”; writers and artists were involved, but they were far from being the only victims. See the discussion of this period, including the Siniavski–Daniel affair, in Y. Feofanov and D. Barry, Politics and Justice in Russia: Major Trials of the PostStalin Era, Armonk, NY: M.E. Sharpe, 1996, pp. 15–49. See Turner (n. 9), pp. 116–19. Hayward (n. 7), p. 20. Two noteworthy examples were an article called “The Turncoats,” by Dmitri Eremin, a journalist, appearing in the January 13, 1966 issue of Izvestia; and a critical article by Zoya Kedrina, a literary critic, published in the January 22, 1966 edition of the Literary Gazette. The two pieces are discussed in detail by Hayward (n. 7), pp. 20–4. See Hayward (n. 7), pp. 25, 257 and Hosking (n. 1). Ginsburg’s role in recording the events of the trial is described by Hosking (n. 1), p. 415. The following year, he, too, was arrested for his involvement in the affair and eventually stood trial. See Hosking pp. 415–18. Hosking (n. 1), p. 414 refers to the “flat-footed literalness” of the prosecution’s dealings with the stories. Some of the most controversial comments of the judge are reproduced in English translation by Turner (n. 9), p. 122, and include accusations of “slander on the Russian people” and “blasphem[y],” based on extracts from the literary works in question. Hayward (n. 7), p. 35, draws attention to “the masterly defense which [the writers] . . . conducted on their own behalf.” For example, see the examination of Daniel, in Hayward (n. 7), pp. 56–60, and the examination of Siniavski in Hayward pp. 95–102. Examination of Siniavski in Hayward (n. 7), p. 94. Berman (n. 24), pp. 87–8 points out, “decisions in cases tried by the Supreme Court of the RSFSR, which was given original jurisdiction in ‘cases of exceptional importance’ (Article 449), were not subject to appeal, since there was no

Notes 295

49

50 51

52

53 54

55

56

57

58

higher RSFSR court.” The judgment could have been “protested” – that is, brought for review by the procuracy or court officials – but the procedure was impractical. Indeed, the procedures are far from clear: it appears that, in such a case, the Supreme Courts of the RSFSR and USSR would have to review their own decisions. In keeping with the federal system of the Soviet Union, the USSR Supreme Court could review rulings that “contradicted all-union law,” and it could “ ‘protest’ such decisions to the Presidium of the Central Executive Committee of the USSR.” See the discussion in Berman, pp. 80–90. See Feofanov and Barry (n. 10), p. 618. Lidia Chukovskaya, in her objections to the trial, emphasized the inordinate cruelty of the sentence against the writers: her protest, in the form of an open letter to Sholokhov, a rare conservative in the Soviet literary community, is reproduced in Hayward (n. 7), p. 290. These details are mentioned by Feofanov in Feofanov and Barry, n. 10. The rehabilitation was issued by decree of the Supreme Court of the Russian Federation – the successor to the RSFSR Supreme Court, though the Decree itself is not available through any of the standard sources on current Russian law. Siniavski died in 1997; his wife, Maria Rozanova, has since made a gift of his private papers to the Hoover Institution. See Hoover Institution Newsletter, August 1998, “Collection of Russian Activist Andrei Siniavski Comes to Archives,” online: www-hoover.stanford.edu/pubaffairs/newsletter/98fall/ siniav.html. His son, Iegor Gran, now lives in Paris and is a writer; for an interesting interview with him by the French newspaper Libération, in which he speaks of his father, see POL online: www.pol-editeur.fr/catalogue/ fichelivre.asp?Clef⫽5986. Hosking (n. 1), pp. 413–15 examines these consequences of the trial. As Pyotr Chaadeyev said, “The government is doing its job; let us do ours.” Quoted in G.A. Hosking, “The Institutionalization of Soviet Literature,” in G.A. Hosking and G.F. Cushing (eds), Perspectives on Literature and Society in Eastern and Western Europe, School of Slavonic and East European Studies, University of London: Macmillan Press, 1989, p. 55. The distinctive connotations of political propaganda in the Soviet Union are described by P. Kenez, The Birth of the Propaganda State: Soviet Methods of Mass Mobilisation 1917–1929, New York: Cambridge University Press, 1985, pp. 1–15 – in particular, the Russian perception of propaganda as a necessary part of political leadership. Kenez compares Bolshevik propaganda with the “propaganda” of the Catholic Church, an ironic but altogether apt comparison of early Communist ideology with religion. Daniel withdrew his partial admission of guilt in a letter sent to Izvestia from prison. See Turner (n. 9), p. 121: Daniel stated that, during the period following his arrest, Soviet authorities had tried “to convince him that his and Siniavski’s writings had been used only by Soviet enemies, and that, in the absence of objective information about the impact of their work, the assertions of the investigators and court officials had had an influence upon him.” Moreover, it insinuated that the work of Siniavski and Daniel had been used by Western critics to shame Soviet society, rather than the state per se. Confronted with this appeal to nationalism, Daniel actually expressed his regret about the purposes, largely unknown to himself, which his writing had come to serve; but he subsequently retracted his apology. Lenin affirmed that “every literature is political literature”: see V. Gsovski, Soviet Civil Law: Private Rights and their Background under the Soviet Regime, H.E. Yntema (ed.), Michigan Legal Studies Series, Ann Arbor: University of Michigan Law School, 1948, pp. 616–17. Hosking provides an interesting discussion of this issue in Tsarist Russia: see

296

59 60 61 62 63

64 65

66

67 68

69 70 71 72

73

Notes G. Hosking, Russia: People and Empire 1552–1917, Cambridge, MA: Harvard University Press, 1997, pp. 286–311. His focus is on both the political and cultural role of literature in Russia. Reproduced in Hayward (n. 7), pp. 286–91. Feofanov and Barry (n. 10), p. 611. Hayward (n. 7), p. 24. This process is described by Hosking (n. 1), pp. 414–26. Fundamentals of Civil Legislation of the Union of Soviet Socialist Republics and the Union Republics, c. IV, VVS SSSR, 1961 No. 50, Item 525; reprinted in English in Legislative Acts of the USSR, Moscow: Progress Publishers, 1981, p. 137; RSFSR Civil Code of 1964, VVS RSFSR, 1964 No. 24; available in English translation on the Russian legal database, Garant. As translated in M.A. Newcity (n. 32), p. 182. Loi du 11 mars 1957 sur la propriété intellectuelle et artistique, Article 6; and Urheberrechtsgesetz (September 9, 1965, as last amended July 16, 1998), Articles 12–14, online: WIPO Collection of Laws for Electronic Access: http://clea. wipo.int. Newcity (n. 32), Appendix A, p. 71 mentions the “debasement” of the principle of exclusive rights. See S.L. Levitsky, “Continuity and Change in Soviet Copyright Law: A Legal Analysis,” Rev Soct L 6 (4), 1980, 425, pp. 439–50 and S.L. Levitsky and W.B. Simons, Copyright in Russia and the USSR: A Selected Bibliography of Works Published in English, German, French and Russian: 1827–1983, Vienna: Manzsche Verlags- und Universitätsbuchhandlung, 1985, pp. 23–5, on the changes to copyright in the 1961 revision. Of course, the impact of this provision would depend on the nature of the laws in question: if the government was expected to observe the law in its own conduct, it might strengthen the position of creators. The peculiar importance of propaganda in the Soviet state is emphasized by Kenez (n. 55), p. 13. He points out that [t]he type of propaganda that the Bolsheviks carried out is absolutely central to our understanding of the nature of the regime that they had created. The regime could not have existed without a special brand of propaganda, and only a communist system could have developed those methods of mass mobilization that in fact existed . . . From the time of the birth of the regime, Soviet life has been permeated with propaganda to such an extent that it is difficult for an outsider to imagine. Kenez (n. 55), p. 95. In his discussion, Kenez also observes that the Bolsheviks were initially interested in “spread[ing] enlightenment,” rather than repression, a situation that was to change with time. See Kenez, p. 98. See the discussion in Hosking (n. 1), pp. 408–13, who emphasizes the role of literature in maintaining independent thought. See the discussion of Soviet case law on copyright and moral rights in Chapter 5, nn. 110–20 and accompanying text. For example, Peter Wright’s right to publish unedited memoirs of his days in the British Secret Service was contested by the British government; not only did the book reveal information about the workings of the agency, but it also claimed to expose incompetence and illegality. The case was pursued in several jurisdictions; for the House of Lords decision, see Attorney General v. Guardian Newspapers (No. 2), [1990] 1 AC 109 (HL). It is worth noting that the government’s recourse to Article 70 was almost accidental; in its search for legal provisions that lent themselves to exploitation in these circumstances, Article 70 appeared most suitable. However, supporting the charges proved to be legally onerous: see discussion of the trial below.

Notes 297

74

75 76

77

78 79

80

81

82 83 84

85 86 87 88

In future prosecutions, the government attempted to avoid the article: see the discussion in Hosking (n. 1), pp. 422–3. Danilenko and Burnham note the greatly circumscribed sphere of private law in Soviet society, due to the “influence of Communist ideas” and the virtually universal presence of the state. See G.M. Danilenko and W. Burnham, Law and Legal System of the Russian Federation, Parker School of Foreign and Comparative Law, Columbia University, New York: Juris Publishing, 1999, pp. 281–3. This particular aspect of moral rights theory is considered in some detail, by M.T. Sundara Rajan, “Moral Rights in the Digital Age: New Possibilities for the Democratization of Culture,” Intl Rev L, Comp and Tech 16 (2), 2002, 187. This theme is explored in a seminal article by Martha Woodmansee, who traces the development of moral rights to Western Romanticism, and the rise of the concept of individual genius as the pre-eminent manifestation of human creativity. M. Woodmansee, “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author’,” Eighteenth-Century Studies 17, 1984, 425. R v. Brodie (1962), 32 DLR (2d) 507 (SCC); interestingly, the Supreme Court of Canada found that the novel was not an obscene work. An application to prosecute Rushdie under the common-law offense of blasphemy was refused, on the grounds that the offense was applicable only to Christianity and not to Islam: see R v. Bow Street Magistrates ex p Choudhury, [1991] 1 QB 429. See n. 72. Parallels can be drawn with seditious literature and blasphemy, but there is a significant time lag: these offenses were part of the legal landscape in eighteenth-century England, as opposed to a twentieth-century Soviet Union. See the interesting discussion on “blasphemy and obscenity” in the English context in L.W. Levy, Blasphemy: Verbal Offense Against the Sacred, from Moses to Salman Rushdie, New York: Alfred A. Knopf, 1993, pp. 296–319. The parallel with McCarthyism is noted by Feofanov and Barry (n. 10), pp. 618–19. For a detailed treatment of McCarthyism, see M.J. Heale, McCarthy’s Americans: Red Scare Politics in State and Nation, 1935–1965, Athens: University of Georgia Press, 1998. Playwright Arthur Miller’s experience of being interviewed by the commission inspired him to write The Crucible, in which an allegory is implicitly drawn between the activities of the McCarthy commission and the Salem witch trials of the seventeenth century. A. Miller, The Crucible: A Play in Four Acts, New York: Viking, 1955 (first published 1953). Hosking (n. 1), p. 412. Hosking (n. 1), pp. 412–15. The journal was a samizdat publication: see Chapter 5, nn 57 and 100, and accompanying text. Hosking (n. 1), p. 414; Hayward (n. 7), pp. 24–6. The parallels and differences between the prosecutions of the 50s and 60s with those of the late 20s and 30s are also worth noting: the trials of the earlier era were “show” affairs, but the focus of the later attempts was on achieving legal justification for the actions of the government. The early cases involving literary and artistic people are summarized by Service (n. 5), p. 200. For example, see the exchange between Siniavski and the judge in the Trial Transcript, Hayward (n. 7), pp. 96–9. Newcity (n. 32), p. 73. See Article 18 of the 1928 copyright statute: USSR Laws 1928, no 246 (May 16, 1928), in English translation in J.N. Hazard, Materials on Soviet Law, New York: Columbia University Press, 1947, pp. 35–7. See M. Foucault, “What Is an Author?,” in P. Rabinow (ed.), The Foucault Reader, New York: Pantheon Books, 1984, p. 101.

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89 See Hayward (n. 7), p. 14. 90 See Hayward (n. 7), p. 20. Of course, this had also occurred in the past, but not through legal proceedings – for example, in the case of Pasternak, who published Dr Zhivago abroad. 91 Fundamentals of Civil Legislation of the Union of Soviet Socialist Republics and the Union Republics, c. IV, VVS SSSR, 1961, No. 50, Item 525; reprinted in English in Legislative Acts of the USSR, Moscow: Progress Publishers, 1981, p. 137, Art. 106. 92 Article 106 of the Fundamentals (n. 91) provides that “a work may be compulsorily repurchased by the state from the author or his heirs, in the manner provided for by the legislation of the union republics.” Articles 501 and 502 of the Russian Civil Code make provision for the purchase of copyright by the state, or for a declaration that works in the public domain have become state property. The issue is discussed in detail by S.L. Levitsky, “The State As a Subject of Copyright in Soviet Law,” J Media L and Prac, 1 (2), 1980, 137. 93 Trial Transcript, Hayward (n. 7), p. 110. 94 Trial Transcript, Hayward (n. 7), pp. 109–11. 95 The celebrated Whistler case stands for this principle: see the discussion in A. Strowel, Droit d’auteur et copyright: Divergences et convergences – Etude de droit comparé, Preface by Louis van Bunnen, Brussels: Bruylant, 1993, pp. 483–5; Trib. Civ. Seine, March 20, 1895 and Paris, December 2, 1897 (1898.2.565). 96 For example, see Article L121-4 on the droit de repentir, in the Code de la Propriété Intellectuelle du 1er juillet 1992, Journal officiel de la République française, 3 juillet 1992, Titre 2, Chapitre 1, Art. L 121-1, online: www.celog.fr/ cpi/lv1_tt2.htm [CPI]. 97 Feofanov and Barry (n. 10), p. 610. 98 Hayward (n. 7), p. 5; Hosking (n. 1), p. 411. 99 Hayward (n. 7), p. 5. 100 See Hayward (n. 7), p. 5: Siniavski freely avowed his belief in an un-Marxist Communism at the trial, and particularly in his final plea when he said that he wrote from an “idealist” (in the philosophical sense) point of view. . . . In his general philosophy Siniavski accepts roughly the same scale of values as Pasternak; he never concealed his attachment to these values, which was symbolized by the fact that he (with Daniel) was one of the pallbearers at Pasternak’s funeral. 101 Withdrawal is not without cost to the author: he must normally compensate the publisher for economic losses sustained on the copies withdrawn. For example, see Code de la propriété intellectuelle et artistique (n. 96), Article L121-4: the French law also provides that if an author subsequently decides to publish his or her work, he or she must allow the publisher who was originally chosen the option of publishing it. 102 The idea of categories of “socially important” speech that should be entitled to special protection under freedom of expression provisions is a feature of the approach to free speech in the United States Supreme Court. The jurisprudence of the court touching this issue is discussed by S. Fraser, “The Conflict between the First Amendment and Copyright Law and its Impact on the Internet,” Cardozo A and Ent LJ 16, 1998, 1, pp. 4–14. 103 For example, see the discussion in S. Strömholm, “Droit Moral – The International and Comparative Scene from a Scandinavian Viewpoint,” IIC 14 (1), 1983, 1, pp. 16–22. 104 A. Rakhmilovich, “The Constitutional Court of the Russian Federation: Recent Cases on Protecting the Freedom of Thought and Speech and Related Matters,” Rev Cent and E Eur L 22 (2), 1996, 129, p. 133 introduced this

Notes 299

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106 107 108 109 110 111 112 113 114

writer to the term; Rakhmilovich is elucidating a decision on freedom of expression by the Russian Constitutional Court. For example, T.S. Eliot describes the creative process in terms of the synthesis and authentic recreation of the entire history of literature in the psyche of the poet: see T.S. Eliot, “Tradition and the Individual Talent,” in Selected Essays, New edn, New York: Harcourt, Brace and World, 1964, 3. Trial Transcript, Hayward (n. 7), pp. 93–4, 96. For example, see Hosking’s discussion of the Brodsky case: Hosking (n. 1), p. 352. Medvedev, quoted in Hosking (n. 1), p. 409. Blake’s poem, “The Sick Rose,” is usually interpreted as a metaphor for the difficulties of earthly love; but the comparison with creative freedom seems apt. See Strömholm (n. 103). Strömholm (n. 103), p. 19. Strömholm (n. 103), p. 21. Rakhmilovich (n. 104), p. 133. “Only in this country is poetry respected – people are killed for it.” Mandelstam’s comment, to his wife, is quoted in Hosking (n. 1), p. 408. The optimism of the time is reflected in a celebrated poem, entitled “The New Russia,” by Indian National Poet, C. Subramania Bharati. It appears to be common knowledge in India that the poem has been translated into Russian, but the Russian version is, pending further research by Bharati scholars in that country, untraceable. Dr Vijaya Bharati, Bharati scholar and granddaughter of the poet, in private conversation.

7 Copyright and the breakdown of Communism 1 S. Fitzpatrick, The Cultural Front: Power and Culture in Revolutionary Russia, Ithaca, NY: Cornell University Press, 1992, pp. 1–15. 2 G. Hosking, A History of the Soviet Union, 1st edn, London: Fontana Press/ Collins, 1985, pp. 463–4. 3 See Hosking (n. 2), pp. 449 and 464 on the influence of liberalizing theories in agricultural reform. Hosking specifically mentions Gorbachev’s “experiments with the ‘link’ system in agriculture . . . even as it was being abandoned elsewhere because the [party] apparatus feared it would lead to the break-up of collective farms.” 4 Hosking (n. 2), p. 464. 5 China has faced a similar dilemma, but the country’s leaders have so far rejected radical change along the lines of what happened in the Soviet Union. For example, see the brief discussion of the problems involved in Chinese liberalization in C. Neigel, “Piracy in Russia and China: A Different US Reaction,” L and Contemp Probs 63, 2000, 179, pp. 191–3. 6 It is unclear whether it is preferable to translate perestroika, from a Russian root meaning “to build,” into English as “restructuring” or “reconstruction.” For example, see the Oxford Colour Russian Dictionary, Oxford: Oxford University Press, 1998, which gives as English equivalents, “reconstruction,” “reorganization,” and “retuning.” I have preferred to use “reconstruction,” as it seems to reflect the reality of Gorbachev’s policies most fully. 7 M. Gorbachev, Perestroika: New Thinking for Our Country and the World, New York: Harper and Row, 1987, p. 10. 8 See G. Hosking, A History of the Soviet Union 1917–1991, Final edn, London: Fontana Press, 1992, p. 501; he unflinchingly calls the Russian Federation a “bleeding hulk torn from the carcass of the USSR.” 9 For example, see Gorbachev’s comments on law: Gorbachev (n. 7), pp. 105–10.

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10 See Hosking (n. 8), pp. 456–8, 460–1, on the importance of law, especially during the second phase of perestroika. The specific issue of freedom of the press, and its importance for glasnost, is examined in detail by V.L. Entin, “Law and Glasnost,” in W.E. Butler (ed.), Perestroika and the Rule of Law: Anglo-American and Soviet Perspectives, London: IB Tauris, 1991, 110. 11 Entin (n. 10), pp. 102–3. 12 The issue arose particularly in relation to the information revolution; for a discussion, see C. Prins, “The Role of Law in the Development of the Russian Information Society,” in G. Ginsburgs, D.D. Barry, and W.B. Simons (eds), The Revival of Private Law in Central Eastern Europe: Essays in Honor of FJM Feldbrugge, The Hague: Kluwer Law International, 1996, 391, pp. 391–4. The equally serious issue of the mismanagement of technology that was available in the Soviet Union is discussed by Hosking (n. 2), pp. 457–8, with particular reference to the tragic events of 1986 in Chernobyl. 13 See Prins (n. 12), pp. 392–4. 14 For example, see the discussion on American software companies, and their influence in Russia over the 1990s, in A. Yakovlev, “Legal Protection of Computer Programs in Russia,” EIPR 18 (5), 1996, 292, pp. 293–4. 15 Hosking (n. 2), p. 458 comments on the new role assumed by writers under perestroika, at Gorbachev’s urging. 16 This line of discussion is not intended to underplay Khrushchev’s denunciation of Stalin and the personality cult, a watershed moment in Soviet history. However, clear limits on both the acknowledgment of official responsibility and the direction of future change were apparent even in Khrushchev’s “Secret Speech” to a special closed session of the 20th Communist Party Congress in 1956: see Hosking (n. 2), pp. 334–8. 17 Hosking (n. 8), pp. 458–9. 18 See J. Curtis, “Literature under Gorbachev – A Second Thaw?,” in C. Merridale and C. Ward (eds), Perestroika: The Historical Perspective, London: Edward Arnold, 1991, 168, p. 177. 19 Gorbachev’s speech to journalists, Pravda, January 13, 1988, quoted by M. Dejevsky in “ ‘Glasnost’ and the Soviet Press,” Culture and the Media, 39; quoted in Curtis (n. 18), p. 177. 20 Fundamentals of Civil Legislation of the USSR and the Republics, c. IV, Copyright, VSND i VS SSSR, 1991, No. 26, Item 773 (invalidated by Resolution of the Supreme Soviet of the Russian Federation No. 5352-1 of July 9, 1993); available in English translation on Garant. 21 See C. Prins, “Emile Zola Receives an Answer: The Soviet Union is to Join the Berne Convention,” EIPR 13 (7), 1991, 238, p. 238. 22 See Prins (n. 21), p. 242. 23 Russian Federation Law on Copyright and Neighboring Rights (Zakon Rossiiskoi Federatsii “Ob avtorskom prave i smezhnykh pravakh”), Law No. 5351-1 of July 9, 1993, VSND i VS RF, 1993, No. 32, Item 1242; Rossiiskaia gazeta, August 3, 1993. Available in English translation, Russian Patent and Trademark Office, online: www.fips.ru/avpen/docs.htm [updated through legislative amendments of July 19, 1995]. The online version of the Law on Copyright is not fully up to date, as it does not yet include the amendments enacted in 2004. The amendments of 1995 included a number of procedural and administrative changes, many of which required complementary changes in the Russian Criminal and Administrative Codes. An important change to the structure of Russian law occurred on March 13, 1995, when Russia’s accession to the Berne Convention (1971) entered into force. The IIPA also mentions that Russia became a number of the Geneva Phonograms Convention at the same time. Changes to the substance of copyright protection were not a priority. See IIPA

Notes 301

24 25

26 27 28

29 30

31

32 33

Special 301 Recommendations, February 20, 1996, online: www.iipa. com/rbc/1996/rbc_russia_301_96.html; Federal Law No. 110-F3 of July 19, 1995; Federal Law No. 72-F3 of July 20, 2004, “Amendments to the Law on Copyright and Neighbouring Rights” [translated by E. Akhunova and M.T. Sundara Rajan]. For example, see R.G. Teitel, Transitional Justice, New York: Oxford University Press, 2000, pp. 4–6. In theory, both copyright and, especially, patent protection are important for the growth of technological industries: they protect costly investment in software development and other technological innovations. However, the actual effectiveness of intellectual property rights in promoting economic development remains a poorly researched question, particularly in the context of chronically underdeveloped countries. Indeed, the promotion of intellectual property rights in developing countries has often been perceived to reflect a political agenda, further undermining the credibility of the claims. For example, see the interesting discussion of the “traditional rationales” supporting patent protection, with an assessment of their validity for developing countries, in E. Henderson, “TRIPs and the Third World: the Example of Pharmaceutical Patents in India,” EIPR 19 (11), 1997, 651, pp. 654–7; see also A.S. Oddi, “The International Patent System and Third World Development: Reality or Myth,” Duke LJ 5, 1987, 831. A relatively rare, empirical study of this issue may be found in R.T. Rapp and R.P. Rozek, “Benefits and Costs of Intellectual Property Protection in Developing Countries,” J World Trade 24 (5), 1990, 75. See also H. Hansmann and M. Santilli, “Authors’ and Artists’ Moral Rights: A Comparative Legal and Economic Analysis,” J Legal Stud 26, 1997, 95. The copyright provisions remained in force until July 7, 1993, when the new Law on Copyright and Neighbouring Rights entered into force. M. Elst, “New Developments in the Copyright Legislation of the Russian Federation: Part 1,” EIPR 15 (3), 1993, 95, pp. 95–6. See the following Decrees: Verkhovnii Sovet Rossiiskoi Federatsii Postanovlenie, “O regulirovanii grazhdanskikh pravootnoshenii v period provedeniya ekonomicheskoi reformi,” July 14, 1992, No. 3301-1, Garant; Decree No. 5352-I of July 9, 1993, Verkhovnogo Soveta states, “If it is not in conflict with the Law on Copyright and Neighbouring Rights, [the provisions of the Code of 1964] are still in effect.” Elst (n. 27), p. 99. The word “transitional” itself has a dual connotation. Over the past decade, it has come to refer to the overall movement of the Russian Federation of Communism and towards democratic government. However, it is used here in its narrow sense of the period from about 1988 to 1992, when it had become obvious that the Soviet Union could not continue to exist in its present form, but where the dissolution of the Union had not yet become a reality. For example, see the Federal Law of the Russian Federation “On Information, Informatization, and the Protection of Information,” February 20, 1995, SZRF 1995 No. 8 item 609; and the Federal Law of the Russian Federation “On Mass Media,” December 27, 1991, VSND i VS RF, 1992, No. 7, Item 300. Currently, one-quarter of the world’s scientific publications continue to be in Russian. See online: www.todaytranslations.com/index.asp-Q-Page-E-RussianLanguage-History-92089045. Another field of technological achievement where India excels is in pharmaceutical production, currently the focus of much international controversy as the Indian government long pursued an open policy of developing chief generic pharmaceuticals by, among other things, reverse engineering products from the United States. For example, see Henderson (n. 25).

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34 See generally the discussion in A. Sen, Development As Freedom, New York: Anchor Books, 2000. 35 A general provision to this effect may also be found in the Russian Constitution of 1993; Article 15.4 provides, “[i]f an international treaty or agreement of the Russian Federation fixes other rules than those envisaged by law, the rules of the international agreement shall be applied.” See Constitution of the Russian Federation, December 12, 1993, Rossiiskaia gazeta December 25, 1993, online: www.constitution.ru/en/10003000-01.htm. Should Russia join the WTO, of course, the provisions of the TRIPs Agreement would become paramount in the field of copyright: see C.L. Broadbent and A.M. McMillian, “Russia and the World Trade Organization: Will TRIPs Be a Stumbling Block to Accession?,” Duke J Comp and Intl L, 8, 1998, 519, p. 534. 36 For example, see the discussion in Broadbent and McMillian (n. 34), pp. 534, 544–62. 37 The process of UCC accession is discussed in Chapter 5, nn. 58–79 and accompanying text. 38 WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT), adopted by the WIPO Diplomatic Conference on Certain Copyright and Neighbouring Rights Questions in Geneva on December 20, 1996. Both treaties are available on the WIPO website, online: www. wipo.int/treaties/en/ip/wct/ and www.wipo.int/treaties/en/ip/wppt/. The Copyright Treaty and the Performances and Phonograms Treaty are known collectively as the WIPO “Internet Treaties,” though their scope is broader than the term suggests. 39 See n. 23. 40 USSR–US: Agreement on Trade Relations, June 1, 1990, 29 ILM 946: see Neigel (n. 5), pp. 185–6. The Soviet commitment to enacting new laws on intellectual property was affirmed in a side letter attached to the Agreement: see Prins (n. 21), p. 242. 41 See Neigel (n. 5), pp. 185–8. 42 This point is emphasized by Neigel (n. 5), pp. 185–8. 43 The American approach to moral rights as part of the process of acceding to the Berne Convention was highly controversial: the United States initially argued that common-law protections available under American law were sufficient to meet the requirements of Article 6bis, but later enacted special legislation to protect the moral rights of visual artists (Visual Artists Rights Act 1990). The issue is dealt with in detail by D. Nimmer, “Conventional Copyright: A Morality Play,” Ent L Rev, 3, 1992, 94. 44 1991 Fundamentals (n. 20), Article 137.3. See Prins (n. 21), p. 246. 45 For details of the Watch Lists and how they work, see the website of the USTR, online: www.ustr.gov/Document_Library/Reports_Publications/ 2005/2005_Special_301/Section_Index.html. It is also possible to go directly to the full report for 2005, online: www.ustr.gov/assets/Document_ Library/Reports_Publications/2005/2005_Special_301/asset_upload_file195_7 636.pdf. 46 Other areas that are mentioned are Russia’s reciprocity-based system for the protection of geographical indications, and protection of data supporting marketing approvals for pharmaceutical and agricultural chemical products. See the 2005 Special 301 Report (n. 45), Russia. 47 The USTR has also undertaken a review of Russia’s status in relation to its GSP (Generalized System of Preferences), ongoing since 2001: see 2005 Special 301 Report (n. 45), and the International Intellectual Property Alliance (IIPA), online: www.iipa.com/pressreleases/2004_July2_GSP-rev.pdf. See also IIPA’s testimony before the Subcommittee on Courts, the Internet, and

Notes 303

48

49 50

51

52

53

54

55

Intellectual Property of the United States House of Representatives: www.iipa.com/rbi/2005_May17_Russia_IP_Theft_Testimony.pdf. See Annex 1C to the Marrakesh Agreement Establishing the World Trade Organization April 15, 1994, 33 ILM 1197 (entered into force January 1, 1995), online: www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm [TRIPs Agreement]. See Article 9.1 of the TRIPs Agreement (n. 48), on “Relation to the Berne Convention”: TRIPs incorporates articles 1–21 of the Berne Convention, and the Appendix on Special Provisions Regarding Developing Countries. WTO terminology on trade sanctions is, “the suspension of trade concessions.” Understanding on Rules and Procedures Governing the Settlement of Disputes, Annex 2 to the Agreement Establishing the World Trade Organization (n. 48) [DSU], Article 2. This is identified by Dreyfuss and Lowenfeld as a “breakthrough” achievement of the WTO system: see R.C. Dreyfuss and A.F. Lowenfeld, “Two Achievements of the Uruguay Round: Putting TRIPs and Dispute Settlement Together,” Va J Intl L, 1997, 275, pp. 276–8. One of WIPO’s important functions was to offer legal assistance to developing countries so that they could bring their intellectual property systems into closer alignment with Western and international practice. WIPO’s activities were aimed at building greater international consensus on intellectual property rights, though progress was by no means smooth: see, for example, Ricketson’s discussion of the circumstances surrounding the adoption of the Stockholm Protocol on special provisions for developing countries, in S. Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886–1986, Centre for Commercial Law Studies, Queen Mary College, London: Kluwer, 1987, paras 11.1–48. The consensus-based character of the WIPO system is emphasized by R.L. Gana, “Has Creativity Died in the Third World? Some Implications of the Internationalization of Intellectual Property,” Denv J Intl L and Poly 24, 1995, 109, p. 121. However, Dreyfuss and Lowenfeld (n. 51), pp. 294–5 point out that the position of developing countries was strengthened by the UN-style voting procedures of WIPO. TRIPs also makes provision for assistance to, and cooperation with, developing countries – in Article 68 on the Council for TRIPs, and Article 69 on international cooperation – but the environment of the Agreement essentially remains competitive rather than collaborative. A. Dietz, “Intellectual Property and Desocialization in Eastern Europe,” IIC 26 (6), 1995, 851, p. 852. Dietz seems to feel that the TRIPs Agreement is a manifestation of even larger changes in the international approach to intellectual property. For example, along with China, the Russian Federation has been one of the world’s most notorious sites of software and music piracy. The different responses of the United States to the situation in these two countries are assessed by Neigel (n. 5), pp. 179, 196–8. However, it is worth noting that differences have arisen over the treatment of these industries in the TRIPs Agreement, not only between industrialized and developing countries, but also among industrialized countries. For example, see Stephen Fraser’s interesting analysis of the conflict between the United States and France (with support from Canada) in relation to the film industry: S. Fraser, “Berne, CFTA, NAFTA and GATT: The Implications of Copyright Droit Moral And Cultural Exemptions in International Trade Law,” Hastings Comm and Ent LJ 18, 1996, 287, pp. 305–20. See Art. 9.1 of the TRIPs Agreement, which states, “Members shall not have rights or obligations under this Agreement in respect of the rights conferred

304

56

57 58

59

60

Notes under Article 6bis of [the Berne] . . . Convention or of the rights derived therefrom.” Member countries of the TRIPs Agreement are required to join the Berne Convention and, therefore, to implement the minimum standards of moral rights protection in Article 6bis. Of course, it is not clear what the international copyright community can do to persuade countries to adopt them – membership in the Berne Convention is assumed to be undertaken on good faith – and this is precisely the reason why moral rights were excluded from the enforcement measures of the TRIPs Agreement. Copyright, Designs and Patents Act 1988, c. 48, Chapter IV (ss. 77–89). See the comments on the new provisions in W.R. Cornish, “Moral Rights under the 1988 Act,” EIPR 11 (12), 1989, 449. The Australian amendments are discussed by E. Adeney, “Defining The Shape of Australia’s Moral Rights: A Review of The New Laws,” IPQ 4, 2001, 291. Canada is currently revising its provisions of moral rights, as well, but the Canadian process creates a new moral right for performers, in conformity with the requirements of the WIPO Performances and Phonograms Treaty, without rationalizing the overall scheme for their protection in Canadian legislation. For a critique of the moral rights reform process in Canada, see M.T. Sundara Rajan, “The ‘New Listener’ and the Virtual Performer: The Need for a New Approach to Performers’ Rights,” in M. Geist (ed.), In the Public Interest: The Future of Canadian Copyright Law, Toronto: Irwin Law/Creative Commons, 2005, 309. The TRIPs Agreement has inaugurated an active period of international standardization. The most important international processes, which are developing in parallel with the TRIPs Agreement, are probably the continued elaboration of international copyright in the WIPO Internet Treaties, and the copyright harmonization directives of the European Union, which released its most ambitious directive to date, on Copyright in the Information Society, in 2001. See J. Reinbothe and S. von Lewinski, “The WIPO Treaties 1996: Ready to Come Into Force,” EIPR 24 (4), 2002, 199, for an attempt to assess the likely impact of the treaties, and the Directive 2001/29/EEC of the European Parliament under the Council of May 22, 2001 on the harmonization of certain aspects of copyright and related rights in the information society (22/06/2001), OJ L167/10, online: http://europa.eu.int/comm/internal_ market/copyright/documents/documents_en.htm. See the Code de la propriété intellectuelle du 1er juillet 1992, JO, July 3, 1992, Titre 2, Chapitre 1, Article L 121-1, online: www.celog.fr/cpi/lv1_tt2.htm [CPI]. The CPI is a codified version of two earlier laws, the Loi no 57-298 du 11 mars 1957 sur la propriété littéraire et artistique, JO, March 14, 1957, p. 2723 (as amended by JO, 19 April 1957, p. 4131) and the Loi No. 85-660 du 3 juillet 1985 relative aux droits d’auteur et aux droits des artistes-interprètes, des producteurs de phonogrammes et de vidéogrammes et des entreprises de communication audiovisuelle, JO, July 4, 1985, p. 7495; s. 57 of the Indian Copyright Act 1957, Act 14 of 1957, as amended, available online: The Institute of Intellectual Property Research and Practice, Haryana, India: www.naukri.com/lls/copyright/ cpwrt.htm; Article 29 of Mali’s Copyright Statute of 1976, under “Nature of the Rights,” provides that, “Copyright includes attributes of an intellectual, moral and economic nature.” Article 30 goes on to define “attributes of an intellectual and moral nature” as being “imprescriptible and inalienable.” See Copyright Statute: Ordinance Concerning Literary and Artistic Property (No. 7746CMLN), July 12, 1977 in Copyright Laws of the World Supplement 1979–1980 [date of entry into force, July 15, 1977]. The official French text is published in the Journal Officiel de la République du Mali, No. 525, of August 1, 1977.

Notes 305 61 See Article 1.1 of the TRIPs Agreement: it is technically possible to enact standards of moral rights protection that exceed the minimum standards specified in TRIPs. However, in the process of law reform in developing and transitional jurisdictions, the international community, particularly the United States, has consistently advised these countries against the adoption of extensive moral rights protection. Moral rights are a special case: concerning most aspects of copyright protection, meeting TRIPs minima is, in itself, a challenge for less-developed jurisdictions. 62 For example, see the discussion in M.T. Sundara Rajan, “Moral Rights in the Digital Age: New Possibilities for the Democratization of Culture,” Intl Rev L, Comp and Tech 16 (2), 2002, 187. 63 ITAR-TASS Russian News Agency v. Russian Kurier, 153 F3d 82, 47 USPQ2d 1810, 26 Media L Rep 2217 (August 27, 1998). 64 For example, see the Russian Copyright Law of March 20, 1911, Polnoe Sobranie Zakonov Rossiiskoi Imperii (Sob III) [Third Complete Collection of Laws of the Russian Empire], Sanktpeterburg 1914, Vol. XXXI, Item No. 34, 935, s. 2. 65 TRIPs Agreement (n. 48), Art. 10. 66 See Part III of the TRIPs Agreement on Enforcement of Intellectual Property Rights – in particular, Section 2 on Civil and Administrative Procedures and Remedies and Section 4 on Special Requirements Related to Border Measures. 67 WCT (n. 38), Arts 11, 12, and 14; WPPT (n. 38), Arts 18, 19, and 23. 68 Section 5 of the TRIPs Agreement does provide for criminal penalties – see, in particular, Article 61, which requires them “at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale.” 69 USTR 2005 Special 301 Report (n. 45). 70 For example, see Russian Copyright Law of 1911 (n. 64), s. 2. The Law enacts amendments to the Russian Civil Code; see Arts V and VII, which amend the Criminal Code to include possibilities of fines and arrests, and modify the Code of Criminal Procedure to move copyright infringement offenses into the jurisdiction of District Courts. 71 All nine Directives, to date, are available online, with explanatory material from the European Commission: http://europa.eu.int/comm/internal_market/ copyright/documents/documents_en.htm. 72 As of December 31, 1995, a customs union links Turkey with the EU: see http://europa.eu.int/comm/trade/issues/bilateral/countries/turkey/index_en.htm. The new agreement follows on a relationship first established as far back as 1963. 73 M. Elst, “The Interaction of European Community and Russian Copyright Law: A Matter of Partnership and Cooperation,” Rev Cent and E Eur 15 (3), 1996, 267, p. 272. 74 Professor Colin Tapper, private correspondence. 75 Harmonization of moral rights has not yet been attempted, in spite of the EU’s long-standing concerns about this area and the dangers of leaving it outside the harmonization process. For example, see the discussion in Commission of the European Communities Green Paper on Copyright and Related Rights in the Information Society (July 19, 1995), COM (95) 382 final, VII. However, it is to be expected that another attempt may soon be made. The problems of moral rights harmonization are examined in M.T. Sundara Rajan, “Moral Rights and Copyright Harmonization: Prospects for an ‘International Moral Right’?,” paper presented at the Annual Conference of the British and Irish Law, Education, and Technology Association (BILETA), April 2002, Free University Amsterdam (an updated version of the paper is currently pending submission to the European Intellectual Property Review). 76 For example, see the comments on Russia’s desire and prospects for WTO

306

77

78 79

80 81 82 83 84 85 86

87 88 89 90 91

92 93

94 95

Notes accession in “Vladimir Putin’s long, hard haul” Special Report in The Economist, May 18–24, 2002, 24, p. 25. The article points out that Russia is unlikely to succeed in its bid for WTO membership “before the middle of the decade.” The only possible exceptions to this situation might be the post-socialist countries which have been hoping to join the EU, for whom conformity with European legislation is an equal priority. For example, see the discussion of the EU influence on transitional countries in S. von Lewinski, “Copyright in Central and Eastern Europe: An Intellectual Property Metamorphosis,” Fordham IP Media and Ent LJ 8 (1), 1997, 39, pp. 45–51. Nevertheless, the prospect of EU accession has at times seemed chimeric to Central and Eastern European countries, as accession paradoxically seems to grow more elusive with the passage of time. For a discussion of the parallel development of policy on digital copyright in the US and at WIPO, see P. Samuelson, “The US Digital Agenda at WIPO,” Va J Intl L 37, 1997, 369. Moral rights were first adopted in Article 6bis of the Berne Convention at the Rome Revision Conference of 1928: see Ricketson (n. 52) para. 3.28. The compromise Article 6bis (2), ensuring a minimum duration of protection for moral rights of a period equivalent to economic copyright, was introduced in Brussels, 20 years later: Ricketson (n. 52), para. 3.40. WPPT (n. 38), Art. 5. For a discussion of the significance of the performer’s moral right, see Sundara Rajan in Geist (n. 58). See the WIPO website (n. 38). 1991 Fundamentals (n. 20). See n. 23. See n. 20. Fundamentals of Civil Legislation of the USSR and the Republics, VVS SSSR, 1961 No. 50, Item 525; available in English translation on Garant; an English version also appears in Appendix A of M.A. Newcity, Copyright Law in the Soviet Union, New York: Praeger Special Studies, 1978, p. 181. USSR Laws 1928, No. 246 (May 16, 1928), Section 7. 1991 Fundamentals (n. 20), Art. 135.2. 1991 Fundamentals (n. 20), Art. 135.2. See n. 37. See Art. 136.2 (6): this was permitted “under the conditions specified by legislation” – meaning, presumably, that specific provisions in legislation on computer programs could inform, and possibly override, this section. Permitted free uses included quotation, news reporting, reproduction for research, and reproduction for the blind. The subsequent Art. 136.3 also allowed use “for exclusively personal purposes.” For example, see the interesting discussion of the repeated condemnation and return to official favor experienced by Shostakovich, in Fitzpatrick (n. 1), pp. 183–215. The moral right of the author, in contrast to the property rights, is considered to be vested in the author, rather than the work; it is for this reason that, in the purest application of the doctrine, his or her personal heirs can inherit the right, but not his or her successors in title. See Article L 121-1 of the CPI (n. 60). It should be noted that Article 135.6 provides for the author’s heirs to inherit the moral rights of integrity and publication, but it does not mention the author’s right to his or her name. Given the general framework of protection, it seems consistent with the logic of the legislation to infer that the right to a name is also inherited by the author’s heirs, and falls to them to be protected after his or her death.

Notes 307 96 1991 Fundamentals (n. 20), Art. 141.5 97 The legislation underwent some indirect procedural amendments in 1995, on the occasion of Russia joining the Berne Convention and the Geneva Phonograms Convention (October 29, 1971) [online: www.wipo.int/treaties/ en/ip/phonograms/trtdocs_wo023.html]. In particular, procedures for enforcement of intellectual property rights through Russia’s criminal and administrative legislation were proposed, but ultimately fell flat, due to President Yeltsin’s rejection of them in December 1995. The process is described by IIPA in its 1996 Report (n. 23). 98 The structure and content of particular provisions on authors’ rights in the Draft Civil Code closely resemble the 1964 provisions; for example, see the definition of the integrity right. The provisions of the draft code are discussed in detail below. 99 The IIPA report is available online: www.iipa.com/rbc/1997/rbc_c.i.s._ 301_97.html. The “Special 301” measures of the American Omnibus Trade Act may be adopted by the United States to take unilateral action against a country that is not maintaining adequate intellectual property standards; whether or not these actions would be consistent with international trade practice is a separate question. The provisions are assessed by Henderson (n. 25) 652. General information about the IIPA may also be found online: www.iipa.com/aboutiipa.html. Russia continues to be on the Priority Watch List through 2005. 100 The provision will be familiar to UK lawyers; similar measures may be found in Article 21 of the UK Copyright, Designs and Patents Act 1988 (n. 57). 101 Law on Copyright (n. 23), Art. 4, Basic Concepts. 102 In this vein, the comment of the USTR that Russia introduced “protection for . . . sound recordings” in 2004 is a bit puzzling. See the Report (n. 45), Russia. 103 Law on Copyright (n. 23) Arts 7.1 and 7.2. 104 See Computer Associates Intl v. Altai, 982 F.2d 693 (2d Cir. 1992). 105 Law on Copyright (n. 23), Basic Concepts, Art. 4.11, “disclosure of a work.” 106 In Canada, current amendments to bring Canadian law into conformity with the WIPO Internet Treaties have moved it towards fewer allowable public uses. The trend is the subject of a book of critical essays on one proposed bill, Bill C-60, by Canadian lawyers and professors (n. 58). 107 For example, Article 19 of the Law on Copyright (n. 23) extends to quotation, reproduction for news reporting, Braille, or educational and advertising extracts. 108 Law on Copyright (n. 23) Art. 25. 109 Clearly, the right to exploit the work under a pseudonym, or anonymously, is the crux of the distinction between this right and the preceding right to be acknowledged as the author of the book. 110 See I. Pozhitkov, “Copyright and Neighboring Rights Protection in the Russian Federation,” Rev Cent and E Eur L 20 (1), 1994, 53, pp. 62–3. 111 Pozhitkov (n. 110), p. 63. However, he goes on to observe: “Since in the past there was no concept of monetary compensation for moral damage, authors did not usually submit the issues of violations of their moral rights to courts.” This analysis of why moral rights claims did not find their way into the Soviet courtrooms is slightly surprising, both from the perspective of moral rights doctrine, and in view of the generally altruistic reputation of the Soviet dissident community. 112 See the Huston case, where the colorization of “The Asphalt Jungle” was prohibited by French courts as a violation of the director’s right of integrity: Angelica Huston c Turner Entertainment, CA (Court of Appeals) Versailles, ch réunies, December 19, 1994, 164 RIDA 389 (1995), on remand from Cass 1e

308

113 114

115 116

117

118

119 120

121 122 123

124 125 126

Notes civ, May 28, 1991, 149 RIDA 197 (1991). It is of course likely that moral rights issues may be of concern to other US copyright industries as well. For example, the widespread availability of waivers is considered to weaken substantially the moral rights provisions in the United Kingdom Copyright, Designs and Patents Act of 1988: see Cornish (n. 57). See B. Karakis, “Moral Rights: French, United States and Soviet Compliance with Article 6bis of the Berne Convention,” Touro Intl L Rev 5, 1994, 105, pp. 133–4. Her assertion follows the interpretation of the well-known Soviet legal scholar, Serge Levitsky. This issue is discussed in M.T. Sundara Rajan, “Moral Rights in the Public Domain: Copyright Matters in the Works of Indian National Poet C. Subramania Bharati,” Sing J Leg Stud, 2001, 161, pp. 177–80. Writing in 1993, Elst mentions the Russian Agency for Intellectual Property that may have been the natural agency to exercise these rights: see Elst (n. 27), p. 103. However, the Agency was abolished by an Edict of October 7, 1993, and a “new” authors’ society – what Pozhitkov calls “an independent public organization” – was established. However, as Pozhitkov points out, the society actually reflects the structure and leadership of both the Agency and the earlier VAAP. See Pozhitkov (n. 110), pp. 82–3. See the discussion of the role played by the Union of Soviet Writers (VOUAP) in maintaining ideological conformity between its members and the Communist Party, in Hosking (n. 8), pp. 222–5. The functions of VOUAP are described in Newcity (n. 86), pp. 25–6, and suggest an outstanding level of state support through the agency for the activities of writers favored by the state. A generally positive view of the agency, in its later incarnation as the Copyright Agency of the USSR (VAAP), may be found in an article written shortly after its establishment, from within the Soviet Union: N.S. Roudakov and I.A. Gringolts, “L’agence de l’URSS pour les droits d’auteur (VAAP): Sa création, ses fonctions, sa structure,” RIDA 1974, 3. See also the informative article by E. Muravina, “Copyright Transactions in Russia Part I. The VAAP Era: 1973–1991,” New Matter, Winter 1993, 4. An interesting discussion of a domaine public payant scheme recently proposed in Germany may be found in A. Dietz, “Term of Protection in Copyright Law and Paying Public Domain: A New German Initiative,” EIPR 22 (11), 2000, 506, pp. 508–11. See also the related discussion of domaine public payant in Sundara Rajan (n. 115), pp. 183–5. Law on Copyright (n. 23), Art. 17.1. Law No. 3523-1 (September 3, 1992), as am by Federal Law No. 177-FL (December 24, 2002) [Law on Computer Programs]. Available in English translation on the website of the Russian Patent and Trademark Office: www.fips.ru/avpen/pr_db.htm. Art. 8. Art. 9. See Indian Copyright Act 1957, ss. 52 and 57. S. 20 of the Indian Copyright (Amendment) Act 1994, Act No. 38 of 1994 provides that, under the new s. 57, “the author shall not have any right to restraint or claim damages in respect of any adaptation of the computer program to which clause (aa) of sub-section (1) of section 52 applies.” Clause (aa) was added to s. 52 to allow copies or adaptations of computer programs to be made for certain purposes: see s. 17 of the Copyright (Amendment) Act 1994. Andrei Sakharov, the physicist, is probably the best known of these to outsiders. For example, Canada: see n. 58. Federal Act No. 72-F3 of July 20, 2004, “Amendments to the Law on Copy-

Notes 309

127 128 129 130 131

132 133

134

135 136 137

138 139 140

right and Neighbouring Rights,” translated by E. Akhunova and M.T. Sundara Rajan. Phonograms, in the language of the Act. See s. 12, changes to Art. 48.2 of the Law on Copyright (n. 23). See s. 14, changes to Art. 49.1 of the Law on Copyright (n. 23). See s. 5, changes to Art. 27 of the Law on Copyright (n. 23). But see Pozhitkov (n. 110), pp. 54–5. Pozhitkov points out that, after the dissolution of the Soviet Union, “[t]here was a period when the law governing relations in the field of copyright protection was a strange mixture of the old ‘Civil Code’ and new 1991 Fundamentals.” However, he believes that “[t]he new Law [of 1993] replaces the copyright legislation of the former USSR, and the RSFSR as well as the 1991 Fundamentals.” He does not cite any authority for this conclusion, which seems to be based, understandably, on the commonsense view that the old provisions are sure to be inconsistent with the new ones and, therefore, replaced by them. He does not seem to be concerned with the technicalities of the official position. Nevertheless, the RSFSR Civil Code provisions on copyright continue to be presented as valid in at least one important legal source, the Russian electronic legal database, Garant. Since the scope of this study is comprehensive, I have preferred to deal with the possible implications of the Civil Code for current Russian copyright, rather than risk presenting an incomplete picture of the current state of the law. See n. 86. See n. 23: Article 2 of the Copyright Act on Legislation of the Russian Federation on Copyright and Neighbouring Rights, lists a number of sources of Russian copyright law, including “other legislative texts of the Russian Federation that are enacted pursuant to this Law.” Although the section makes no mention of the RSFSR Civil Code, none of its provisions on copyright has been annulled. Indeed, it is the usual international practice to allow protection that exceeds the baseline standard described in international instruments: for example, see Article 1.1 of the TRIPs Agreement, which provides that “Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement.” The caveat in the last part of the article is interesting, but, even if moral rights appear somewhat incompatible with the logic of the Agreement, it cannot be said that they contravene its provisions. It should be noted that, under Article 500 of the RSFSR Civil Code provisions, damages can only be claimed if the infringement of copyright “has caused material damage to the author or his successors.” Newcity (n. 86), pp. 181–7 provides a chart comparing pre-1973 and post1973 provisions on copyright in the 1961 USSR Fundamentals of Civil Legislation (n. 86). He discusses the issue in detail at pp. 153–4. According to Soviet jurisprudence, a purchase could be effected by a lump-sum payment to the author or his or her heirs: see S.L. Levitsky, “The State As a Subject of Copyright in Soviet Law,” J Media L and Prac 1 (2), 1980, 137, pp. 141–3. The controversy between the United States and France over moral rights is one of the main themes of the interesting analysis in Fraser (n. 54). The arguments surrounding the issue of whether patent protection, in particular, encourages useful foreign investment in developing countries are considered by Henderson (n. 25), p. 256. For example, a powerful film industry lobby has contributed to the negative American view of moral rights: see Nimmer (n. 43).

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141 Particularly in the area of film; as Russia becomes increasingly involved in the technology sector, moral rights may also present problems. The solution may be to exempt technological products from moral rights, as the United Kingdom has done in some cases. However, the implications of moral rights for technology are poorly understood, and this approach may lead to other problems in the long term. See UK Copyright, Designs and Patents Act 1988 (n. 57), s. 79 (2). 142 In India, the courts have deliberately dissociated themselves from the economic and political power of the Indian film industry – which apparently has ties with organized crime as well – and expressed their determination to protect the moral rights of authors. Smt Mannu Bhandari v. Kala Vikas Pictures (1986), 1987 AIR (Delhi 13). 8 The future of post-Communist copyright: a special role for moral rights 1 W.E. Butler, Civil Code of the Russian Federation Parts One and Two, 2nd edn, with an Introduction by W.E. Butler and M.E. Gashi-Butler, London: Simmonds and Hill Publishers, 1997, p. xi. An updated version, including the subsequently adopted Part Three of the Code, is now available: W.E. Butler, Civil Code of the Russian Federation Parts One, Two and Three, Oxford: Oxford University Press, 2003. 2 See Butler’s translation of Parts One and Two of the current Code (n. 1). 3 See Report of the International Intellectual Property Alliance (IIPA Report), online: www.iipa.com/rbc/1997/rbc_c.i.s._301_97.html. 4 IIPA report (n. 3). 5 Members of the Center who have written about current legal developments in Russia include A.L. Makovskii, M.I. Braginskii, S.S. Alekseev, and O.M. Kozyr; Dr Kozyr is usually credited as the primary author of the Civil Code provisions on Intellectual Property. The Center website may be found at http://privlaw.ru. 6 For example, confusion about the role played by different Canadian groups working in Russia has apparently led to difficulties for some Canadian legal specialists in obtaining funding from the Canadian International Development Agency. 7 The term “arbitrazh” simply refers to commercial courts; the courts are not involved in “arbitration” functions as they are usually understood. 8 This chapter will cite the Russian provisions as (R). 9 Drafts of 08.06.2002, and April 23, 2001, Federal Law Draft No. 84675-3, Introduced by State Duma Deputy, V. Komissarov, Chair of the State Duma Committee for Information Policy, April 23, 2001, online: http://legislature.ru/ monitor/amendgk/84675-3.html [Russian only]. 10 Draft of April 23, 2001 (n. 9). 11 Private correspondence with Dr Oxana Kozyr of the Private Law Research Center, August 2005. 12 The following discussion is based on a version of the Draft Civil Code which has been translated into English by O.M. Kozyr and E.V. Luchits. See Chapter 5, n. 41. For example, Gainan Avilov of the Private Law Research Center suggests that the revised Civil Code could be adopted at any point over the next decade: Avilov in private conversation, 2001. As noted, Dr Kozyr indicates that a completely new draft is currently in the making. 13 The Division is entitled, “Rights in Results of Intellectual Activity and Means of Individualization (Intellectual Property).” 14 Art. 1228 (R). 15 Art. 1228 (R).

Notes 311 16 See the discussion of indemnification for moral harm in transitional and postSoviet law, in M.I. Braginskii, “The General Part of Civil Codification in Russia,” in G. Ginsburgs, D.D. Barry, and W.B. Simons (eds), The Revival of Private Law in Central Eastern Europe: Essays in Honor of FJM Feldbrugge, The Hague: Kluwer Law International, 1996, 99, pp. 109–10. 17 The question of equality of relationships under civil law is slightly confusing; presumably, the provisions deal with situations where the government is, in effect, acting as a “private” party. Some related issues are discussed in the helpful article by Braginskii (n. 16), pp. 103–5, 107–10. 18 The provision may also signify a declaratory remedy. 19 See Art. 1249, on who is the author of a work. 20 Art. 1253 (R). 21 Art. 1260; Arts 1295, 1304, and 1312. 22 See Art. 1252 (particularly 1252.2) on databases; Art. 1251 on computer programs; Art. 1269 on rights to reproduce these; and on sound recordings and broadcasts, see Arts 1302–4 and 1310–12. 23 Art. 1238; see also Art. 1240. 24 (R). 25 By implication from Art. 1284 (R). 26 See the discussion in Chapter 5, nn 63–7 and accompanying text. In the Shostakovich case, the Soviet government sued the producers of a film for using the music of Shostakovich and a number of other Russian composers in an antiSoviet film. It lost the case in the United States, but won in France. As for the Huston case, the work of the deceased American director enjoyed protection against colorization in France that would not have been available in America. See Chapter 5, n. 53 and accompanying text; Angelica Huston c Turner Entertainment, CA (Court of Appeals) Versailles, ch réuni legislative es, December 19, 1994, 164 RIDA 389 (1995), on remand from Cass 1e civ, May 28, 1991, 149 RIDA 197 (1991). 27 The relevant provision of the current Copyright Act is article 27.2, on measures to protect the author’s moral rights after his or her death; a person chosen by the author, his or her heirs, or the government agency are charged with the responsibility. On the policy advantages of allowing the general public to make such claims, see M.T. Sundara Rajan, “Moral Rights in the Public Domain: Copyright Matters in the Works of Indian National Poet C. Subramania Bharati,” Sing J Leg Stud, 2001, 161, pp. 180–5. Russian Federation Law on Copyright and Neighboring Rights (Zakon Rossiiskoi Federatsii “Ob avtorskom prave i smezhnykh pravakh”), Law No. 5351-1 of July 9, 1993, VSND i VS RF, 1993, No. 32, Item 1242; Rossiiskaia gazeta, August 3, 1993. Available in English translation, Russian Patent and Trademark Office, online: www.fips.ru/ avpen/docs.htm [updated through legislative amendments of July 19, 1995]. Amended by Federal Law No. 110-F3 of July 19, 1995, Rossiiskaia gazeta July 26, 1995; and Federal Law No. 72-F3 of July 20, 2004. Available online: Russian Patent and Trademark Office, www.fips.ru/avpen/docs.htm [updated through 1995]. See Chapter 7, n. 23 for details concerning the updating of this Law. 28 Under this provision, the author is entitled to seek the protection of his or her “honour” or “dignity,” as well. The idea is reminiscent of an interesting moral rights case from India, where the author of a novel sued a filmmaker for distorting her story; in finding for the author, the judge specifically made mention of the damage to her reputation that might result from her association with the commercial film industry. See Smt Mannu Bhandari v. Kala Vikas Pictures (1986), 1987 AIR (Delhi 13). 29 The protection of the “exclusive” right is also extended to the life of the author

312

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35

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and 70 years after his or her death, bringing it into line with the current international standard; for example, see the EU Term Directive Council Directive 93/98/EEC of October 29, 1993 harmonizing the term of protection of copyright and certain related rights (November 24, 1993), OJ L290/9 Art. 1(1), online: http://europa.eu.int/comm/internal_market/copyright/documents/documents_en.htm. See n. 12. Germany’s approach to the domaine public payant is illustrative of the benefit industrialized countries may see in these schemes: see the discussion in A. Dietz, “Term of Protection in Copyright Law and Paying Public Domain: A New German Initiative,” EIPR 22 (11), 2000, 506. Specifically, Dietz’s article deals with a proposal by the German Writers’ Union to create a “community right of authors and performers”; it will allow funds to be collected from public domain works and performances, and given to living artists in support of their work. The proposal has a long pedigree, dating back to the German government proposals of 1962 in this field. See Draft Civil Code (n. 12), Article 1248. The Constitution of the United States, Article I, Section 8, Clause 8; House of Representatives online: www.house.gov/Constitution/Constitution.html. Yakovlev points out additionally the protection of computer programs in two separate laws, the Law on Copyright and the Russian Federation Law on the Legal Protection of Computer Programs and Databases, Law No. 3523-1 of September 23, 1992 (amended by Federal Law No. 177-FL of December 24, 2002). He emphasizes that computer programs may be “watered down,” and not protected on an equal footing with other copyright works, whether literary or artistic. See A. Yakovlev, “Legal Protection of Computer Programs in Russia,” EIPR 18 (5), 1996, 292, pp. 293–4. Pravin Anand suggests that the idea was developed in Statart Software Pvt Ltd v. Karan Khanna, cited in P. Anand, “The Concept of Moral Rights under Indian Copyright Law,” Copyright World 27, 1993, 35, pp. 35–6, and later, became the subject of a legislative amendment. See Indian Copyright (Amendment) Act 1994, Act No. 38 of 1994, and discussion in Chapter 7, n. 123. In fact, the doctrine originated in judicial decisions, and was later crystallized in legislation: see the discussion in A. Strowel, Droit d’auteur et copyright: Divergences et convergences, Etude de droit compare, Brussels: Bruylant, 1993, p. 481. Article 6, Loi du 11 mars 1957 sur la propriété intellectuelle et artistique, JO, March 14, p. 2723 (as amended by JO, April 19, 1957, p. 4131), later codified in the Code de la propriété intellectuelle du 1er juillet 1992, JO, July 3, 1992. Given the reality of Soviet publishing structures, it is probably more accurate to say that artists and authors enjoyed a moral right “not to disclose” their work. However, Soviet copyright law included provisions on compulsory purchase, notwithstanding Boguslavskii’s assertion that the government could never take over an author’s right to release his or her work to the public. See S.L. Levitsky, “The State As a Subject of Copyright in Soviet Law,” J Media L and Prac 1 (2), 1980, 137, pp. 137, 147. Levitsky observes, Boguslavskii’s statement [that . . . the acquisition of rights to specific uses of a work, whether under contract or compulsory . . ., did not amount to an expropriation of the author’s copyright] . . . was obviously meant to reassure Western publishers that . . . [upon Soviet adherence to the UCC] no “local laws” have been enacted in the USSR conferring upon the State ownership of copyright in any dissident’s work. He painted over the face, so that it was no longer immediately identifiable as a portrait of Lady Eden. It is worth mentioning that the dispute between Sir

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42 43 44

45 46 47 48 49 50

51 52 53 54 55 56 57 58 59

William and the painter actually arose over payment for the portrait. Although the case stands for a strong principle of moral right, it is not clear that the painter was motivated purely by artistic concerns. See Strowel’s discussion of the case (n. 36), pp. 483–5. R.J. DaSilva “Droit moral and the Amoral Copyright: A Comparison of Artists’ Rights in France and the United States,” Bull Copyrt Socy USA 28, 1980, 1, p. 18. Cour de Paris (April 19, 1961); R. Sarraute, “Current Theory on the Moral Right of Authors and Artists under French Law,” AJCL 16, 1968, 465, p. 477; quoted in DaSilva (n. 40), p. 25. The reasoning in this case does seem surprisingly strict for a jurisdiction that has traditionally recognized moral rights. It is certainly interesting to consider that misattribution has long been penalized in English law – for example, see UK Copyright Act 1956, s. 43 – and was earlier recognized at common law. Professor Colin Tapper in private correspondence. J.-M. Pontier, J.-C. Ricci, and J. Bourdon, Droit de la culture, 2nd edn, Paris: Dalloz, 1996, pp. 264–5. DaSilva (n. 40), p. 26. “Ce droit à repentir ou à retrait constitue donc une cause légale d’inexécution des obligations conventionnelles.” [This right of repentance or withdrawal therefore constitutes a legal reason for failing in the conventional fulfillment of obligations.] Pontier et al. (n. 42), p. 264. If the author does eventually decide to publish the work, he or she must first offer the possibility of publication to the original publisher. In other words, if the author feels that his or her reputation has been violated, that would be sufficient for the court. Buffet v. Fersing, [1962] Recueil Dalloz (D.Jur.) 570; the case receives a detailed treatment in J.H. Merryman, “The Refrigerator of Bernard Buffet,” Hastings LJ 27, 1975/76, 1023. A comprehensive discussion of French cases on the integrity right may be found in Strowel (n. 36), pp. 487–90. See Strowel’s interesting discussion of the Huston case, featuring a comparison between the American and French positions on colorization and the integrity right: Strowel (n. 36), pp. 58–70. See the discussion in DaSilva (n. 40), pp. 26–30. Amar Nath Sehgal v. Union of India, (February 21, 2005), CS(OS) No. 2074/1992, affirming Suit No. 2074 (Delhi HC), (1994) 19 Indl Prop L Rep 160. The case is discussed in M.T. Sundara Rajan, “Moral Rights and the Protection of Cultural Heritage: Amar Nath Sehgal v. Union of India,” Intl J Cult Prop 10 (1), 2001, 79. Amar Nath Sehgal v. Union of India (n. 50). DaSilva (n. 40), pp. 34–7. I. Tyulubeva, “Uchebnik po-piratski [A Textbook the Pirate’s Way]” Avtorskoye pravo i smezhnie prava 3, 2000, 65. Translated by E. Akhunova and M.T. Sundara Rajan. Tyulubeva (n. 53). 1914. The painting, and others by the same artist, can be viewed online: www.abcgallery.com/A/altman/altman.html. Copyright Act of 1993 (n. 27), Art. 27.2. (R). The case is described by I. Tyulubeva, “Muzeinie tsennosti i knigoizdanie [Museum Values and Book Publishing],” Avtorskoe pravo 3, 2001, 75 [translated by E. Akhunova]. See I. Koblyakov and T. Martiyanova, “Obshestvennoe dostoyanie kak osovii pravovoi rezhim obiekotv avtorskovo prava [Public Property as a Special Legal Regime],” Avtorskoye pravo i smezhnie prava 4, 2001, 31 [translated by E. Akhunova].

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9 Copyright and human rights: the post-Communist experience and a new international model 1 For example, Pushkin’s “blasphemous” poem, “The Gabrieliad,” which he published anonymously, became the subject of a censorship inquiry. Pushkin eventually requested and received a personal pardon from the Tsar. See M. Hayward, On Trial: The Soviet State Versus “Abram Tertz” and “Nikolai Arzhak,” New York: Harper and Row, 1967, pp. 31–2. 2 The chilling use of psychiatry for political ends is described by G. Hosking, A History of the Soviet Union 1917–1991, Final edn, London: Fontana Press, 1992, pp. 424–5. 3 Fundamentals of Civil Legislation of the Union of Soviet Socialist Republics and the Union Republics, c. IV VVS SSSR, 1961 No. 50, Item 525 Article 106; RSFSR Civil Code of 1964, VVS RSFSR, 1964 No. 24, Articles 501 and 502 (on the acquisition of works in the public domain by the state). 4 The especially broad range of the Soviet right of inviolability is worth noting: it allowed authors to protest “any” mistreatment of their work, whether or not their reputation was affected. 5 Julie Curtis comments on this phenomenon: see J. Curtis, “Literature under Gorbachev – A Second Thaw?,” in C. Merridale and C. Ward (eds), Perestroika: The Historical Perspective, London: Edward Arnold, 1991, 168, pp. 171–4, 180. 6 See the fascinating interview with Yevgeny Yevtushenko, Red Spring (The Sixties), Episode 14, online: www.cnn.com/SPECIALS/cold.war/episodes/ 14/interviews/yevtushenko/. 7 A rare and interesting critique of American involvement in law reform in the post-Communist world and elsewhere may be found in J. DeLisle, “Lex Americana?: United States Legal Assistance, American Legal Models, and Legal Change in the Post-Communist World and Beyond,” U Pa J Intl Econ L 20, 1999, 179, pp. 255–308. 8 Copyright reform has addressed one aspect of Russia’s future: its need to participate in the international economy to further economic growth. However, the relationship of the law to creativity and culture remains to be investigated. 9 For example, see the strongly negative comments of the International Intellectual Property Alliance on incorporating intellectual property law into postCommunist civil codes: IIPA report, online: www.iipa.com/rbc/1997/ rbc_c.i.s._301_97.html. Dr Oxana Kozyr of the Private Law Research Center indicates that a new drafting process is about to be initiated, and that the provisions on intellectual property may, once again, be substantially rewritten. Dr Kozyr, in private correspondence. 10 Russian Federation Law on Copyright and Neighboring Rights (Zakon Rossiiskoi Federatsii “Ob avtorskom prave i smezhnykh pravakh”), VSND i VS RF, 1993 No. 32, Item 1242; Rossiiskaia gazeta August 3, 1993 (as amended by Federal Law No. 110-F3 of July 19, 1995, Rossiiskaia gazeta July 26, 1995). Available online: Law No. 5351-I of July 9, 1993, Russian Patent & Trademark Office: www.rupto.ru/ruptoen/law/intel.htm. 11 Constitution of the Russian Federation, December 12, 1993, Rossiiskoi gazeta December 25, 1993, online: www.constitution.ru/en/10003000-01.htm. 12 Censorship can be a function of economic or criminal power in “private” hands, as much as state power. Given the present situation in Russia, which is characterized by widespread lawlessness, it seems likely that Russian authors may suffer the effects of “private” censorship. 13 The issue receives a detailed treatment in S. Fraser, “The Conflict between the First Amendment and Copyright Law and its Impact on the Internet,” Cardozo A and Ent LJ 16, 1998, 1, p. 12.

Notes 315 14 Article 5 of the German “Basic Law” (Grundgesetz), on freedom of expression, provides, in subsection (3): “Art and science, research and teaching are free.” 15 It should be noted that the West German “Basic Law,” adopted in 1949, provided the legal basis for East German states to join the federation upon reunification, and remains the Constitution of reunified Germany. It will continue to be valid until it is replaced by a new Constitution, adopted by unified Germany as a whole. 16 Of course, international commercialization could have benefits for culture, as well – for example, by encouraging the dissemination of Russian art and culture abroad. However, the tendency for individual authors and artists to lose their influence in a global market for culture is a real danger. Moreover, domestic poverty encourages the movement – to a great extent, illegal – of cultural property from poor to rich countries, and this phenomenon has been a part of the post-socialist experience. The general issues involved are outlined by L.V. Prott and P.J. O’Keefe, Law and the Cultural Heritage, vol. 3, Movement, Oxford: Professional Books, 1984, pp. 11–14. In Central and Eastern Europe, the impoverishment of cultural heritage in this way has a number of causes, including political instability, crime, and war. See A Milrad, “Artful Ownership,” The Stolen Property Series, Pt 1, Limits on Ownership, Art Cellar Exchange. Online: www.artcellarexchange.com/artlaw1/html. 17 For example, if the right to inviolability were a constitutionally protected right, the Constitutional Court of the Russian Federation would be charged with the adjudication of disputes. At the same time, the Constitutional Court is a “new” court whose specific purpose is to bring legal legitimacy to the post-Soviet government. Given its political pedigree, it may actually be the court that is best suited to dealing with moral rights issues. The activities of the court are discussed in A. Rakhmilovich, “The Constitutional Court of the Russian Federation: Recent Cases on Protecting the Freedom of Thought and Speech and Related Matters,” Rev Cent and E Eur L 22 (2), 1996, 129. 18 For example, the UK Copyright, Designs & Patents Act introduced moral rights into UK copyright law for the first time in history; however, ss. 79 and 81 set out such extensive exceptions to the rights of attribution and integrity that their practical effectiveness is greatly limited. See Copyright Designs & Patents Act 1988, c. 48. 19 The position of common-law countries on waivers is discussed by G. Dworkin, “The Moral Right of the Author: Moral Rights and the Common Law Countries,” Colum-VLA J L and Arts, 1995, 229, pp. 244–66. This is the case even in some civil-law jurisdictions: Germany allows waivers of moral rights, a point that is noted by S. Fraser, “Berne, CFTA, NAFTA and GATT: The Implications of Copyright Droit Moral And Cultural Exemptions in International Trade Law,” Hastings Comm and Ent LJ 18, 1996, 287, pp. 293–4. The position of France is far more strict, as moral rights cannot in principle be alienated, although, in practice, partial alienation of these rights through contractual provisions might be possible. See the interesting discussion in A. Strowel, Droit d’auteur et copyright: Divergences et convergences – Etude de droit compare, Brussels: Bruylant, 1993, pp. 497–9. 20 The issue is discussed in “Hope for the best. Prepare for the worst,” in The Economist, July 11, 2002. The Economist article mentions “tiered pricing,” relatively cheaper drugs for Third World countries, as part of progress in the treatment of the disease, though even inexpensive drugs may be beyond the reach of poor populations. 21 See the discussion in P. Drahos, “Intellectual Property and Human Rights,” IPQ, 1999, 349, p. 364 on the protection of “traditional resources,” including “biological resources.”

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22 This is a theme of the interesting article by J. Tunney, “E.U., I.P., Indigenous People and the Digital Age: Intersecting Circles?,” EIPR 20 (9), 1998, 335. 23 The philosophical differences between the common-law and civil-law concepts are evident in the terminology: “copyright” is a right to “copy” or reproduce works, while European systems are known as the law of “authors’ rights” – droit d’auteur or Urheberrecht, to cite the French and German examples. A consideration of the relevant provisions in France – for example, Chapter III of the Loi no 57-298 du 11 mars 1957 sur la propriété littéraire et artistique, JO, March 14, p. 2723 (as amended by JO, April 19, 1957, p. 4131) later incorporated into the Code de la propriété intellectuelle du 1er juillet 1992, JO, July 3, 1992, suggests that the terminology of ownership has not really found its way into French law. 24 The substantive provisions on copyright in the Agreement refer to the “right holder”: for example, see Article 8.2 on “Principles,” or Article 13 on “Limitations and Exceptions.” The personal right of the author is the only aspect of copyright law that is excluded from the dispute-settlement and enforcement measures of TRIPs: see Article 9.1 of the TRIPs Agreement, which provides that the rights in Article 6bis of the Berne Convention cannot be enforced under the TRIPs Agreement. Interestingly, Article 14ter of the Berne Convention, on the visual artist’s droit de suite, is not excluded from the TRIPs Agreement: in part, this may be due to the weak status of the right even in the Berne Convention. See Ricketson’s discussion of the droit de suite in Berne; he concludes that “there is no obligation on member states to accord . . . protection [to it].” S. Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886–1986, Centre for Commercial Law Studies, Queen Mary College, London: Kluwer 1987, paras 8.49–60, 8.55. 25 V. Gsovski, Soviet Civil Law: Private Rights and their Background under the Soviet Regime, H.E. Yntema (ed.), Michigan Legal Studies Series, Ann Arbor: University of Michigan Law School, 1948, pp. 610–11. 26 Or theatre corporation: see s. 18. The section does not allow “any additions, reductions or general changes during the author’s life . . . without the author’s consent,” and includes a list of what these activities might involve. 27 The Constitution of the United States, Article I, Section 8, Clause 8. 28 E. Dissanayake, Homo Aestheticus: Where Art Comes From and Why, 2nd edn, Seattle: University of Washington Press, 1995, p. xv. 29 Attempts to restrict the power of these industries have occurred, rather, through competition law, but, in at least one prominent instance, the results of a judgment against anti-competitive behavior has been mixed. See the discussion of the litigation involving Microsoft Corporation, in “United they would stand” The Economist, December 13, 2001; and “Bill Gates, software saviour,” The Economist, April 25, 2002. 30 A useful discussion of the three “generations” of human rights may be found in C. Wellman, The Proliferation of Rights: Moral Progress or Empty Rhetoric?, Boulder, CO: Westview Press, 1999, pp. 13–38. These issues are explored in some detail in Drahos (n. 21), pp. 361–5. 31 See S. Pandit, An Approach to the Indian Theory of Art and Aesthetics, New Delhi: Sterling, 1977, p. 134. 32 IPR 21, 1991, 481. 33 The case is summarized by M. Blakeney, “The Protection of Traditional Knowledge under Intellectual Property Law,” EIPR 22 (6), 2000, 251, p. 253; an interesting perspective is also provided by W.V. Tuomi, “Protecting Aboriginal Folklore: Copyrights and Charter Rights,” Can IP Rev 16 (2), April 2000, 403, pp. 411–12. It should be noted that Yumbulul sued for infringement of his copyright; the case was not dealt with as a moral rights problem, and indeed, Australia did not offer substantial protection for moral rights in its copyright

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36

37 38 39

40 41 42

43 44

legislation at the time. Australia has since adopted a comprehensive moral rights regime; for details, see E. Adeney, “Defining the Shape of Australia’s Moral Rights: A Review of the New Laws,” IPQ 4, 2001, 291. Of course, this is always the basis on which governments interfere with individual rights; but, in the case of socialist countries, the idea of the rights of the collective may be said to have had a hegemonic quality. Indeed, social, or “second-generation,” human rights were much emphasized in the ideological rhetoric that socialist countries presented to the international community. L.N. Tolstoy, War and Peace, translated by R. Edmunds, London: Penguin, 1982, pp. 604–5. Tolstoy asks, “Where, how and when could this young countess, who had a French émigrée for governess, have imbibed from the Russian air she breathed the spirit of that dance? . . . [T]he movements were . . . inimitable, unteachable, Russian.” Universal Declaration of Human Rights, December 10, 1948; GA Res 217A (III), UN Doc A/810 at 71; International Covenant on Economic, Social and Cultural Rights, December 16, 1966, GA Res 2200A (XXI), 21 UN GAOR Supp (No. 16) at 49, UN Doc A/6316, 993 UNTS 3 (entered into force January 3, 1976); International Covenant on Civil and Political Rights, GA Res 2200A (XXI), 21 UN GAOR Supp (No. 16) at 52, UN Doc A/6316 (1966), 999 UNTS 171, (entered into force March 23, 1976). For a discussion of the International Bill of Rights, and its place in international human rights law, see Drahos (n. 21), p. 359. Hosking (n. 2) points out that the first issue of an important samizdat journal, the Chronicle of Current Events, appeared in 1968 with Article 19 on its cover. Hosking (n. 2), p. 419; see his interesting discussion at pp. 419–22. Interestingly, provisions on intellectual property are not featured in other international human rights documents, including the European Convention on Human Rights, Strasbourg, January 20, 1966, and the African [Banjul] Charter on Human and Peoples’ Rights, June 27, 1981, OAU Doc CAB/LEG/67/3 rev 5, 21 ILM 58 (1982), entered into force October 21, 1986. The European Convention is highly focused on civil and political rights; in contrast, the African Charter explicitly rejects the distinction between civil and political rights, on the one hand, and economic, social and cultural rights, on the other. The African Charter includes a number of references to culture, including Article 17.2 on the right of “every individual . . . [to] take part in the cultural life of his community”; Article 22 on the right of peoples to “cultural development with due regard to their freedom and identity and equal enjoyment of the common heritage of mankind”; and Article 20 on the right of states-parties to resist “foreign domination, be it political, economic or cultural.” A right to “receive information” is protected in Article 9, though rights of creation are not protected at all. The Declaration states that “everyone” has this right. Drahos (n. 21 above), p. 358. S. Ricketson, “The Boundaries of Copyright: Its Proper Limitations and Exceptions: International Conventions and Treaties,” IPQ 1, 1999, 56, pp. 73–6. For an interesting discussion of how the idea of Crown copyright has historically accomplished the same purpose in Britain and, later, Canada, see D. Vaver, Intellectual Property Law: Copyright, Patents, Trade-marks, Essentials of Canadian Law Series, Toronto: Irwin Law, 1997, pp. 58–60. Ricketson (n. 42), p. 74. A well-known example is the “fair use” doctrine, which serves to limit the reach of copyright protection in the United States. Some of its implications are considered by P.L. Loughlan, “Looking at the Matrix: Intellectual Property and Expressive Freedom,” EIPR 24 (1), 2002, 30, pp. 36–8.

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45 The importance of exceptions to copyright is emphasized in Hart’s article about European copyright harmonization: he argues that the failure to harmonize exceptions to copyright law in the EU directives presents a serious impediment to the harmonization process. See M. Hart, “The Proposed Directive for Copyright in the Information Society: Nice Rights, Shame about the Exceptions,” EIPR 20 (5), 1998, 169. 46 For example, Loughlan (n. 44) considers the issue of why a defense to First Amendment copyright challenges has not really developed in American case law. 47 See Drahos (n. 21), p. 361: he refers to “classical” rights (negative), “welfare” rights and “peoples’ rights or solidarity rights.” 48 See P. Alston, “Conjuring Up New Human Rights: A Proposal for Quality Control,” AJIL 78, 1984, 607. The issue is also addressed by Wellman, (n. 30), pp. 1–11. 49 Drahos (n. 21), p. 361. 50 This issue receives a detailed consideration in M.-B. Dembour, “Human Rights Talk and Anthropological Ambivalence: The Particular Contexts of Universal Claims,” in O. Harris (ed.), Inside and Outside the Law: Anthropological Studies of Authority and Ambiguity, European Association of Social Anthropologists Series, London: Routledge, 1996, 19, pp. 32–3. 51 Drahos (n. 21), p. 361. 52 Rousseau’s discourse on inequality is probably the most celebrated work of this kind: see J.-J. Rousseau, Discours sur l’origine et les fondements de l’inégalité parmi les hommes edited by J.-L. Lecercle, Paris: Editions socials, 1983. 53 In some respects, European colonialism – for example, as it was pursued in the lands of the aboriginal peoples of North and South America – was perhaps as brutal in its own way as the Holocaust. An interesting discussion of the legal implications of these resemblances may be found in B. Kingsbury, “Reconciling Five Competing Conceptual Structures of Indigenous Peoples’ Claims in International And Comparative Law,” NYU J Intl L and Poly 34, 2001, 189, p. 195. However, the treatment of the Jews has an immediacy for the European imagination unparalleled by any other historical event. This is hardly surprising, since the horrors of the Holocaust occurred on European soil, and in the heart of a society that was supposed to be the most advanced of its time. 54 War crimes trials were also held in Japan: see R.H. Minear, Victors’ Justice: The Tokyo War Crimes Trial, Ann Arbor: Center for Japanese Studies, University of Michigan, 2001. The legal consequences of “victors’ justice” for Japan are described by R. Teitel, “Transitional Jurisprudence: The Role of Law in Political Transformation,” Yale LJ 106, 1997, 2009, pp. 2063–5. 55 Economic necessity is not an accepted basis, either for immigration, or for granting refugee status. Note the recent proposals of some European countries, including Britain and Spain, to impose economic penalties on countries whose nationals migrate illegally to wealthier nations: see “Immigration tops EU summit agenda,” June 20, 2002, CNN online: http://europe.cnn.com/2002/ WORLD/europe/06/20/spain.summit/?; and P. Reynolds “Seville summit – what did it achieve?” BBC News, June 24, 2002, online: http://news.bbc. co.uk/1/hi/world/europe/2062661.stm. Interestingly, in voicing its objections, French President Jacques Chirac’s spokeswoman, Catherine Colonna, commented that “[e]xacerbating the economic situation of the country sanctioned would risk severely aggravating migratory flows and not diminish them. It would be particularly counterproductive”: see CNN online. The “right to asylum” receives a detailed treatment in Wellman (n. 30), pp. 16–19. 56 The controversy surrounding “female circumcision,” a traditional practice in some African countries, is a case in point. For a discussion of this issue in the

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59 60

61 62 63

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broader context of human rights violations against women, worldwide, see S.P. Subedi, “Protection of Women Against Domestic Violence: the Response of International Law,” Eur Hum Rts Rep 6, 1997, 587, pp. 592–3. Woodmansee’s study attempts to show, in particular, how authors’ rights developed in eighteenth- and nineteenth-century Germany: see M. Woodmansee, “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author’,” Eighteenth-Century Studies 17, 1984, 425. Dembour (n. 50), pp. 32–3. It should be noted that Dembour uses the expression “moral rights” in the general sense of non-legal or extralegal “entitlements” based on the universal characteristics of “human nature” – a line of inquiry that she finds deeply problematic. The incident, and the strategy behind it, are described by Hosking (n. 2), pp. 416–17. Esenin-Volpin was a mathematician, and son of the poet Sergei Esenin. Dembour (n. 50), p. 19. Dembour does not fail to note the “tautological” quality of this view of human rights – although, if anything, the circular nature of the arguments in support of human rights strongly seems to support her thesis about their context-specific and malleable nature. For example, see Dembour’s discussion of scholarship on this issue: Dembour (n. 50), pp. 32–3. The difficulties of legal protection for folklore under Western legal models are discussed by C.A. Berryman, “Toward More Universal Protection of Intangible Cultural Property,” JIPL 1, 1994, 293, pp. 309–33. This issue receives a detailed treatment in M.T. Sundara Rajan, “The Implications of International Copyright Law for Cultural Diversity Policies,” Research Position Paper 5 in T. Bennett, Differing Diversities – Cultural Policy and Cultural Diversity, Strasbourg: Cultural Policy and Action Department, Council of Europe, 2001, p. 135. See W.P. Alford, “Don’t Stop Thinking About . . . Yesterday: Why There Was No Indigenous Counterpart to Intellectual Property Law in Imperial China,” J Chinese L 7 (3), 1993, 3, pp. 29–34. Alford shows that the Chinese attitude towards copying has much to do with the importance of the past as a source of knowledge, moral guidance and creative expression in Chinese culture. His ideas are developed further in a book-length study of Chinese copyright, W.P. Alford, To Steal a Book Is an Elegant Offense: Intellectual Property Law in Chinese Civilization, Studies in East Asian Law, Harvard University, Stanford, CT: Stanford University Press, 1995. An example of the importance of translation and adaptation in Indian culture is provided by the Ramayana, one of two celebrated ancient epics in Sanskrit. It is ascribed to the authorship of the ancient sage, Valmiki; the original Sanskrit text has been adapted into most Indian languages by leading classical poets. These adaptations are not “mere” translations, but they actually attempt to recreate the story of Rama in the cultural and historical context of the region. Examples include the Ramayanam of Kamban in Tamil, and Tulsidas’ Ramayan Manac. arita Manas in Hindi. The diffusion of the Ramayana throughout India was also associated with the bhakti movement, which represented a revolutionary new understanding of spirituality in terms of a direct relationship between the individual and the Divine Being. The ideal of bhakti was at the heart of a creative explosion in literature and the arts. The movement is described in detail by noted Indian historian, Romila Thapar: see R. Thapar, A History of India, vol. 1, Baltimore: Penguin Books, 1966, pp. 185–93, 304–10. Freedom of translation was long a standard principle in Russian law; it came to be limited significantly only on Soviet accession to the Universal Copyright Convention in 1973. See the discussion in Chapter 5, pp. 100–1; S. Levitsky, “Continuity and Change in Soviet Copyright Law: A Legal Analysis,” Rev Soc L

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72

73 74 75 76 77 78

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6 (4), 1980, 425, p. 425 notes that this is an area of continuity from Russian to Soviet copyright law. See the discussion of the rationales supporting copyright in developing countries, in E.W. Ploman and L.C. Hamilton, Copyright: Intellectual Property in the Information Age, London: Routledge and Kegan Paul, 1980, pp. 23–5. Tunisia was the first country to protect copyright and moral rights in folklore: Ploman and Hamilton (n. 67), pp. 129–31. Until recently, this was a feature of Indian law: see M.T. Sundara Rajan, “Moral Rights in the Public Domain: Copyright Matters in the Poetical Works of Indian National Poet C. Subramania Bharati,” Sing J Leg Stud 2001, 161, pp. 175–6. This, too, was the case in Indian law: see M.T. Sundara Rajan, “Moral Rights and the Protection of Cultural Heritage: Amar Nath Sehgal v. Union of India,” Intl J Cult Prop 10 (1), 2001, 79, pp. 84–7. Protection for the moral right of integrity that is not based on the protection of the author’s reputation, or which acts to prohibit the outright destruction of a work, are not yet an accepted part of international copyright law. See the discussion in S. Ricketson, The Law of Intellectual Property, Melbourne: The Law Book Company, 1984, para. 15.57, n. 48. The proposed Draft Civil Code provision of the Russian Federation on copyright includes a provision with this effect: see Draft Civil Code, Private Law Research Centre, November 30, 2001; English translation by O.M. Kozyr and E.V. Luchits, Art. 1287.4. The Russian version only is available online: www. internet-law.ru/law/projects/gk4i.htm. See Y. Abe, “Besoin d’art, nécessité de poésie,” Introduction to C. Baudelaire, Les Fleurs du mal, Paris: Orphee La différence, 1989. As Abe observes, the “besoin d’art” [“need for art”] is envisioned as a “besoin fondamental” [“fundamental need”] by the poet. Hosking (n. 2), pp. 181–2. See Dissanayake (n. 28), pp. xvi–xvii. P. Recht, Le Droit d’auteur, une nouvelle forme de propriété: histoire et théorie, Gembloux: Editions J. Duculot, 1969, p. 278. See the interesting discussion of a public interest in moral rights, with special attention to its significance for the common-law countries, in D. Vaver, “Moral Rights Yesterday, Today and Tomorrow,” IJLIT 7 (3), 1999, 270. See Article 27 of the Universal Declaration, and Article 15 of the ICESCR (n. 36). Until recently, such a right existed in Indian law, where moral rights provisions were used successfully to impose a duty on the government to protect works of art in its possession. The case was Amar Nath Sehgal v. Union of India (1992), Suit No. 2074 (Delhi HC), (1994) 19 Indl Prop L Reps 160. Subsequent amendments to the Indian Copyright Act – a result of the government’s fears about the consequences of the decision – have scaled the provisions back, bringing them within the limits established by Article 6bis. The case is discussed in P. Anand, “The Concept of Moral Rights under Indian Copyright Law,” Copyright World 27, 1993, 35. See also Sundara Rajan (n. 70). The right of inviolability can be traced back to the Russian copyright statute of 1911: Russian Copyright Law of March 20, 1911, Polnoe Sobranie Zakonov Rossiiskoi Imperii (Sob III) (Third Complete Collection of Laws of the Russian Empire), Sanktpeterburg 1914, Vol. XXXI, Item No. 34, 935. Incorporated into the Civil Code (Svod Zakonov) as ss. 695(1)-695(15) of the Civil Laws (Volume X, Part 1, 1914 edn); Sobranie Uzakonenii i Rasporyazhenii Pravitel’stva, (Collection of Regulations and Government Decrees), March 30, 1911, No. 61, Item 560. It was part of Russian legislation until the adoption of the Copyright Act of 1993 (n. 10).

Notes 321 80 See Ricketson (n. 70), para. 15.57, n. 48. 81 See Sundara Rajan (n. 70), p. 84. Destruction, too, has been deemed to be forbidden by Indian moral rights provisions, though recent amendments to Indian copyright legislation make the present status of a moral right against the destruction of a work somewhat ambiguous. 82 Article 106 of the 1961 Fundamentals; Articles 501 and 502 of the RSFSR Civil Code (n. 3). See the analysis of this problem in M.A. Newcity, Copyright Law in the Soviet Union, New York: Praeger Special Studies, 1978, pp. 151–9, and the detailed discussion in Chapter 3, pp. 52ff. 83 Berryman is in support of widening the application of authors’ moral rights to the public domain; she points out that “[t]he rights of paternity and integrity denote a collective cultural interest in preserving the work itself.” See Berryman (n. 62), pp. 318–20. 84 See Draft Civil Code (n. 71) Article 1287.4 85 See L.V. Prott and P.J. O’Keefe (n. 16), p. 14: they point out that the commercialization of cultural objects leads to a loss of respect for cultural values in source countries and, “in many cases, . . . engenders a contempt for one’s own cultural traditions.” 86 It would be incorrect to present this as an absolute rule: rather, the moral right is an individual right of the author that can only be transferred in certain circumstances. The circumstances will vary among jurisdictions; in strong moral rights countries such as France, it would be difficult to transfer or waive moral rights, but it is much easier to do so in common-law countries. On the inalienability of moral rights in French law, see Strowel (n. 19), pp. 497–9; the issue of waivers in the common-law countries is discussed by Dworkin (n. 19). A possible exception to this point that would be more general, is the recognition of joint authorship, but it is usually dealt with in copyright law as two individual copyrights in a single work. The phenomenon of corporate authorship is considered by P. Jaszi, “On the Author Effect: Contemporary Copyright and Collective Creativity,” Cardozo A and Ent LJ 10, 1992, 293, pp. 294–9; he is primarily concerned with the potential incompatibility between copyright theory and what he terms “contemporary polyvocal writing practice – which increasingly is collective, corporate, and collaborative.” 87 J. Waldron, “From Authors to Copiers: Individual Rights and Social Values in Intellectual Property,” Chi-Kent L Rev 68, 1993, 841, p. 848. Waldron is actually arguing that copyright should be considered more from the “copier’s” point of view, but his analysis holds good for the argument developed here, as well. 88 The approach of the United States Supreme Court to categories of speech and speech of “social importance” is discussed, among other characteristic features of copyright jurisprudence in the US, by Fraser (n. 13), pp. 4–19. 89 See Arts L 121-1 and L 122-5 (4) of France’s Code de la Propriété intellectuelle du 1er juillet 1992, Journal officiel de la République française, July 3, 1992, Titre 2, Chapitre 1, online: www.celog.fr/cpi/lv1_tt2.htm. 90 A poignant illustration of this problem is the fate of privacy regulation in Western countries following the terrorist incidents of September 11, 2001. Conclusion: copyright and culture in transition 1 See T.S. Eliot’s remarks: T.S. Eliot, “Tradition and the Individual Talent,” in Selected Essays, New edn, New York: Harcourt, Brace and World, 1964, 3. 2 China also seems to be moving towards “post-Communism,” perhaps signaled by its admission to WTO membership. 3 The American position is especially interesting in light of the fact that, at the

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8

9 10

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time of the adoption of the Berne Convention, the United States was the leading nation of piracy in the world. For example, cases like those of Huston and Shostakovich – the first, involving the colorization of the works of an American director, and the second, a claim for moral rights protection in the musical score for a film – seem to indicate that moral rights could impose important restraints, whether domestically or internationally, on the U.S. film industry. The position of the American film industry on moral rights is discussed in detail by S. Fraser, “Berne, CFTA, NAFTA and GATT: The Implications of Copyright Droit Moral And Cultural Exemptions in International Trade Law,” Hastings Comm and Ent LJ 18, 1996, 287. RSFSR Civil Code of 1964, VVS RSFSR, 1964 No. 24. But see I. Pozhitkov, “Copyright and Neighboring Rights Protection in the Russian Federation,” Rev Cent and E Eur L 20 (1), 1994, 53, pp. 54–5. Pozhitkov believes that the RSFSR provisions have been replaced by new copyright legislation, but his conclusion does not appear to be technically sound. See Chapter 7, n. 28. Russian Federation Law on Copyright and Neighboring Rights (Zakon Rossiiskoi Federatsii “Ob avtorskom prave i smezhnykh pravakh”), Law No. 5351-1 of July 9, 1993, VSND i VS RF, 1993, No. 32, Item 1242; Rossiiskaia gazeta, August 3, 1993. Available in English translation, Russian Patent and Trademark Office, online: www.fips.ru/avpen/docs.htm [updated through legislative amendments of July 19, 1995], Article 27.5. For example, see S.L. Levitsky, “Continuity and Change in Soviet Copyright Law: A Legal Analysis,” Rev Soct L 6 (4), 1980, 425, p. 433, on why it took decades for the terminology of “personal” rights to be employed openly in Soviet copyright law. Art. 5. Martha Woodmansee’s study particularly emphasizes the shift from a concept of genius based on divine inspiration, to one that reflected the idea of genius originating in an individual author. Her seminal interpretation is helpful, though not uncontroversial: see M. Woodmansee, “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author’,” EighteenthCentury Studies 17, 1984, 425. The breakdown of a long-established hierarchy of culture and its consequences are considered in M.T. Sundara Rajan, “Moral Rights in the Digital Age: New Possibilities for the Democratization of Culture,” Intl Rev L, Comp and Tech 16 (2), 2002, 187. For example, although keyboard instruments had been known in the seventeenth century, the Industrial Revolution generated the modern piano. Of course, the impact of technology on creative expression can also be traced much further back, to early humanity; see the interesting discussion of the role of art in human development in E. Dissanayake, Homo Aestheticus: Where Art Comes From and Why, 2nd edn, Seattle: University of Washington Press, 1995, pp. xi–xxii, 1–23. In many cases, the arts have not yet been able to explore new technologies to their full advantage: even in the case of digital recording, many of the possibilities for creative interpretation and interaction between artists and audience remain unrealized. Yet they were foreseen as early as the 1970s by an outstanding artist, classical pianist Glenn Gould: see the discussion of Gould’s ideas in G. Payzant, Glenn Gould: Music and Mind, 1st edn, Toronto: Van Nostrand Reinhold, 1978, pp. 29–32, 42, 70. For a consideration of the benefits that technology may bring to cultural diversity, see the discussion in M.T. Sundara Rajan, “The Implications of International Copyright Law for Cultural Diversity Policies,” in T. Bennett, Differing Diversities: Cultural Policy and Cultural Diversity, Strasbourg: Council of Europe,

Notes 323 Cultural Policy and Action Department, 2001, 135. In one form or another, concerns like these are at the heart of the “anti-globalization” movement. However, the contribution of technology to creativity is also real and, in many cases, it has yet to be explored to its full potential. One area that immediately comes to mind is the growing availability of multilingual materials on the Internet; many other possibilities for cultural education through technology must exist. 14 Art is so described by Glenn Gould. 15 For example, Dissanayake discusses the impact of modern cultural developments on artistic consciousness, and argues that they have had a serious negative impact on current understandings and experiences of creative expression: Dissanayake (n. 11), pp. 194–225.

Select bibliography

Books Adams, L., Art on Trial: From Whistler to Rothko, Introduction by Tom Wolfe, New York: Walker and Co, 1976. Alford, W.P., To Steal a Book Is an Elegant Offense: Intellectual Property Law in Chinese Civilization, Studies in East Asian Law, Harvard University, Stanford, CT: Stanford University Press, 1995. Altbach, P.G., Copyright and Development: Inequality in the Information Age, Bellagio Studies in Publishing, Chestnut Hill, MA: Bellagio Publishing Network, 1995. Ascher, A., The Revolution of 1905: A Short History, Stanford, CT: Stanford University Press, 2004. Balmuth, D., Censorship in Russia, 1865–1905, Washington D.C.: University Press of America, 1979. Beirne, P. (ed.), Revolution in Law: Contributions to the Development of Soviet Legal Theory, 1917–1938, Armonk, NY: M.E. Sharpe, 1990. Benabou, V.-L., Droit d’auteur, droits voisins et droit communautaire, preface by André Françon, Brussels: Bruylant, 1997. Benn, A., Literary Russia: A Guide, London: Papermac, 1997. Bennet, T., Differing Diversities: Cultural Policy and Cultural Diversity, Strasbourg: Cultural Policy and Action Department, Council of Europe, 2001. Bently, L. and Maniatis, S. (eds), Intellectual Property and Ethics, Vol. 4, Perspectives on Intellectual Property, London: Sweet and Maxwell, 1998. Berman, H.J., Justice in the USSR: An Interpretation of Soviet Law, Harvard University Russian Research Center Studies 3, Cambridge, MA: Harvard University Press, 1963. —— Soviet Criminal Law and Procedure: The RSFSR Codes, H. Berman and J.W. Spindler (trans.), Russian Research Center Studies 50, 2nd edn, Cambridge, MA.: Harvard University Press, 1966. Bettig, R.V., Copyrighting Culture: The Political Economy of Intellectual Property, H.I. Schiller (ed.), Critical Studies in Communication and in the Cultural Industries, Boulder, CO: Westview Press, 1996. Bhagwati, J., In Defense of Globalization, New York: Oxford University Press, 2004. Blagojevic, B.T., Czachorski, W., Ionasco, T., Knapp, V., Kroutogolov, M.A., Szabo, I., Tourmanov, V.A., Introduction aux droits socialists, Budapest: Association

Select bibliography 325 internationale de droit comparé/Faculté internationale pour l’enseignement du droit comparé, Akademiai Kiado, 1971. Blakeney, M., Trade Related Aspects of Intellectual Property Rights: A Concise Guide to the TRIPs Agreement, London: Sweet and Maxwell, 1996. Boguslavsky, M.M., Copyright in International Relations: Copyright Protection of Literary and Scientific Works, D. Catterns (ed.) and N. Poulet (trans.), Sydney: Australian Copyright Council, 1979. —— The USSR and International Copyright Protection, Y. Shirokov (trans.), Moscow: Progress Publishers, 1979. Brovkin, V.N., Russia after Lenin: Politics, Culture and Society, 1921–1929, London: Routledge, 1998. Bullock, A., Hitler and Stalin: Parallel Lives, rev. 2nd edn, London: Fontana, 1998. Butler, W.E. (ed.), Perestroika and the Rule of Law: Anglo-American and Soviet Perspectives, London: IB Tauris, 1991. —— Russian Legal Theory, The International Library of Essays in Law and Legal Theory Series, T.D. Campbell (ed.), New York: New York University Press Reference Collection, 1996. —— (ed. and trans.) Civil Code of the Russian Federation, Parts One and Two, 2nd edn, with an Introduction by W.E. Butler and M.E. Gashi-Butler, London: Simmonds and Hill, 1997. —— (ed., trans., and comp.), Russian Civil Legislation: The Civil Code (Parts 1 and 2) and Other Surviving Civil Legislation of the Russian Federation, The Hague: Simmonds and Hill, Kluwer Law International, 1999. —— Russian Law, Oxford: Oxford University Press, 1999. Butler, W.E. and Gashi-Butler, M.E., Intellectual Property in the Russian Federation: Collected Legislation, London: Interlist, 1994. Colombet, C., Grands principes du droit d’auteur et des droits voisins dans le monde: Approche de droit compare, 2nd edn, Paris: Litec/UNESCO, 1992. Cotter, S., International Intellectual Property Law: European Jurisdictions, D. Campbell (gen. ed.), Salzburg: Centre for International Legal Studies, 1995. Danilenko, G.M. and Burnham, W., Law and Legal System of the Russian Federation, Parker School of Foreign and Comparative Law, Columbia University, New York: Juris Publishing, 1999. Davies, G., Copyright and the Public Interest, 2nd edn, London: Sweet and Maxwell, 2002. De Freitas, D., The Copyright System: Practice and Problems in Developing Countries, London: Commonwealth Secretariat, 1983. Dietz, A., Protection of Intellectual Property and CEEC: The Legal Situation in Bulgaria, CSFR, Hungary, Poland and Romania, Paris: OECD, 1995. Dissanayake, E., Homo Aestheticus: Where Art Comes From and Why, 2nd edn, Seattle: University of Washington Press, 1995. Doutrèlepont, C., Le droit moral de l’auteur et le droit communautaire: Analyse en droit comparé et en droit européen, Brussels: Bruylant – Collection de la Faculté de Droit de l’Université Libre de Brussels, 1997. Downing, J., Internationalising Media Theory – Transition, Power, Culture: Reflections on Media in Russia, Poland and Hungary, 1980–95, Media, Culture, and Society Series, London: Sage, 1996. Downing, R., EC Information Technology Law, Intellectual Property Law Series, Chichester: John Wiley and Sons, 1995.

326

Select bibliography

Drahos, P., A Philosophy of Intellectual Property, Aldershot: Ashgate, 1996. Eliot, T.S., Selected Essays, London: Faber and Faber, 1932. Elst, M. and Malfliet, K. (eds), Intellectual Property in the Russian Federation: A System in Transition, Brussels: Bruylant, 1994. —— Copyright, Freedom of Speech, and Cultural Policy in the Russian Federation, W.B. Simons (ed.), Law in Eastern Europe Series, No. 53, Leiden: Martinus Nijhoff, 2004. Feldbrugge, F.J.M., Russian Law: The End of the Soviet System and the Role of Law, Law in Eastern Europe Series, No. 45, Dordrecht: Martinus Nijhoff, 1993. Feofanov, Y.V. and Barry, D.D., Politics and Justice in Russia: Major Trials of the PostStalin Era, Armonk, NY: M.E. Sharpe, 1996. Fitzpatrick, S., The Cultural Front: Power and Culture in Revolutionary Russia, Ithaca, NY: Cornell University Press, 1992. Fleishits, Y. and Makovsky, A., The Civil Codes of the Soviet Republics, K. Kostrov (trans.) and C. Creighton (ed.), Moscow: Progress Publishers, 1976. Frankel, T., The Russian Artist: The Creative Person in Russian Culture, Russia Old and New Series, New York: Macmillan, 1972. Fukuyama, F., The End of History and the Last Man, New York: Free Press, 1992. Galligan, D.J. and Kurkchiyan, M., Law and Informal Practices: The Post-Communist Experience, Oxford: Oxford University Press, 2003. Garrison, D.L., Intellectual Property: Eastern Europe and the Commonwealth of Independent States, New York: Oceana Publications, 1995. Geist, M. (ed.), In the Public Interest: The Future of Canadian Copyright Law, Toronto: Irwin Law/Creative Commons, 2005. Ginsburgs, G., From Soviet to Russian International Law: Studies in Continuity and Change, The Hague: Martinus Nijhoff Publishers, 1998. Ginsburgs, G., Barry, D.D., and Simons, W.B. (eds), The Revival of Private Law in Central and Eastern Europe: Essays in Honor of FJM Feldbrugge, The Hague: Kluwer Law International, 1996. Gooding, J., Rulers and Subjects: Government and People in Russia, 1801–1991, London: Arnold, 1996. Gorbachev, M., Perestroika: New Thinking for Our Country and the World, New York: Harper and Row, 1987. Graffy, J. and Hosking, G.A., Culture and the Media in the USSR Today, London: Macmillan in Association with the School of Slavonic and East European Studies, University of London, 1989. Griffiths, J. and Suthersanen, U. (eds), Copyright and Free Speech: Comparative and International Analyses, Oxford: Oxford University Press, 2005. Gringolts, I.A., “L’agence de l’URSS pour les droits d’auteur (VAAP),” RIDA, 1973, 3. Gsovski, V., Soviet Civil Law: Private Rights and their Background under the Soviet Regime, Vol. 1, Comparative Survey, with a Foreword by H.E. Yntema, Ann Arbor: University of Michigan Law School, 1948. Harris, O. (ed.), Inside and Outside the Law: Anthropological Studies of Authority and Ambiguity, European Association of Social Anthropologists Series, London: Routledge, 1996. Hart, H.L.A., The Concept of Law, Oxford: Clarendon Press, 1961. Hayward, M., On Trial: The Soviet State Versus “Abram Tertz” and “Nikolai Arzhak,” New York: Harper and Row, 1967.

Select bibliography 327 Hazard, J.N., Materials on Soviet Law, New York: Columbia University Press, 1947. —— Communists and Their Law, Chicago, IL: University of Chicago Press, 1969. Hazard, J.N. and Weisberg, M.L., with the collaboration of G.C. Denney Jr. and G.I. Krynsky, Cases and Readings on Soviet Law, New York: Parker School of Foreign and Comparative Law, Columbia University Press, 1950. Heale, M.J., McCarthy’s Americans: Red Scare Politics in State and Nation, 1935–1965, Athens: University of Georgia Press, 1998. Henderson, J.E. and Butler, W.E., Russian Legal Texts: The Foundations of a Rule-ofLaw State and a Market Economy, London: Kluwer Law International, The Vinogradoff Institute, University College, 1998. Henkin, L., The Age of Rights, New York: Columbia University Press, 1990. Hosking, G.A., A History of the Soviet Union, 1st edn, London: Fontana Press/Collins, 1985. —— A History of the Soviet Union 1917–1991, Final edn, London: Fontana Press, 1992. —— Russia: People and Empire 1552–1917, Cambridge, MA: Harvard University Press, 1997. Hosking, G.A. and Cushing, G.F., Perspectives on Literature and Society in Eastern and Western Europe, London: Macmillan Press, in association with the School of Slavonic and East European Studies, University of London, 1989. Ioffe, O.S., Soviet Civil Law, F.J.M. Feldbrugge (gen. ed.) Law in Eastern Europe, No. 36, Dordrecht: Martinus Nijhoff, 1988. Ioffe, O.S. and Maggs, P.B., Soviet Law in Theory and Practice, New York: Oceana Publications, 1983. Juviler, P.H., Revolutionary Law and Order: Politics and Social Change in the USSR, New York: Free Press, 1976. Kaplan, B., An Unhurried View of Copyright, James S. Carpenter Lectures, 1966, New York: Columbia University Press, 1967. Kenez, P., The Birth of the Propaganda State: Soviet Methods of Mass Mobilisation 1917–1929, Cambridge: Cambridge University Press, 1985. Kernan, A., The Death of Literature, New Haven, CT: Yale University Press, 1990. Kharkhordin, O., The Collective and the Individual in Russia: A Study of Practices, Berkeley: University of California Press, 1999. Klein, Naomi, No Logo: Taking Aim at the Brand Bullies, Toronto: Knopf Canada, 2000. Konstantinovsky, B.A., Soviet Law in Action: The Recollected Cases of a Soviet Lawyer, H.J. Berman (trans.), Harvard University Russian Research Center Studies 10, Cambridge, MA: Harvard University Press, 1953. Levitsky, S.L. and Simons, W.B., Copyright in Russia and the USSR: A Selected Bibliography of Works Published in English, German, French and Russian: 1827–1983, Vienna: Manzsche Verlags- und Universitätsbuchhandlung, 1985. Levy, L.W., Blasphemy: Verbal Offense Against the Sacred, from Moses to Salman Rushdie, New York: Alfred A. Knopf, 1993. McCauley, M. (ed.), The Russian Revolution and the Soviet State 1917–1921: Documents, M.A. Branch (ed.), Studies in Russia and East Europe Series (formerly Studies in Russian and East European History), 1st edn reprinted with alterations, London: MacMillan in association with the School of Slavonic and East European Studies, University of London, 1980. McLellan, D., The Essential Left: Marx, Engels, Lenin, Mao: Five Classic Texts on the Principles of Socialism, New edn, London: Unwin Paperbacks (Counterpoint), 1986.

328

Select bibliography

McLuhan, Marshall, The Gutenberg Galaxy: The Making of Typographic Man, Toronto: University of Toronto Press, 1962. Maggs, P.B. (ed.), Pashukanis: Selected Writings on Marxism and Law, New York: Academic Press, 1980. —— Soviet Statutes and Decisions, XIV (1), Fall 1997, New York: M.E. Sharpe. Mehl, D. and Jansohn, C. (eds), D.H. Lawrence, The Woman Who Rode Away and Other Stories, Cambridge: Cambridge University Press, 1928, 1995. Merridale, C., Night of Stone: Death and Memory in Russia, London: Granta Books, 2000. Merridale, C. and Ward, C. (eds), Perestroika: The Historical Perspective, London: Edward Arnold, 1991. Merryman, J.H. and Elsen, A.E., Law, Ethics, and the Visual Arts, Vol. 1, 2nd edn, Philadelphia: University of Pennsylvania Press, 1987. Michaélidès-Nouaros, G., Le droit moral de l’auteur: Étude de droit français, de droit comparé et de droit international, Paris: Librairie Arthur Rousseau, 1935. Mihajlov, M., Russian Themes, Marija Mihajlov (trans.), London: Macdonald, 1968. Minear, R.H., Victors’ Justice: The Tokyo War Crimes Trial, Ann Arbor: Center for Japanese Studies, University of Michigan, 2001. Moore, A.D., Intellectual Property: Moral, Legal, and International Dilemmas, Lanham, MD: Rowman and Littlefield, 1997. Nair, K.R.G. and Kumar, A., Intellectual Property Rights, UDCCS Seminar Papers Series No. 1, New Delhi: Allied Publishers, 1994. Neumann, I.B., Russia and the Idea of Europe: A Study in Identity and International Relations, London: Routledge, 1995. Newcity, M.A., Copyright Law in the Soviet Union, New York: Praeger Special Studies, 1978. Nickel, J.W., Making Sense of Human Rights, Berkeley: University of California Press, 1987. Pandit, S., An Approach to the Indian Theory of Art and Aesthetics, New Delhi: Sterling, 1977. Patry, W.F., Copyright Law and Practice, Washington: Bureau of National Affairs 1994, 2000, online: http://digital-law-online.info/patry/patry2.html. Patterson, L.R., Copyright in Historical Perspective, Nashville TN: Vanderbilt University Press, 1968. Payzant, G., Glenn Gould: Music and Mind, 1st edn, Toronto: Van Nostrand Reinhold, 1978. Ploman, E.W. and Hamilton, L.C., Copyright: Intellectual Property in the Information Age, London: Routledge and Kegan Paul, 1980. Pontier, J.-M., Ricci, J.-C., and Bourdon, J., Droit de la culture, 2nd edn, Paris: Dalloz, 1996. Prischepenko, N.P., Russian–English Law Dictionary, New York: Praeger, Special Studies in International Politics and Public Affairs, 1969. Prott, L.V. and O’Keefe, P.J., Law and the Cultural Heritage, Vol. 3, Movement, Oxford: Professional Books, 1984. Recht, P., Le Droit d’auteur, une nouvelle forme de propriété: histoire et théorie, Gembloux: Editions J. Duculot, 1969. Reffes, A.J., The History and Culture of Soviet Russia, New York: Progress Publishers, 1997. Reinbothe, J. and von Lewinski, S., The WIPO Treaties 1996: The WIPO Copyright

Select bibliography 329 Treaty and The WIPO Performances and Phonograms Treaty – Commentary and Legal Analysis, London: Butterworths, 2002. Ricketson, S., The Law of Intellectual Property, Melbourne: The Law Book Company, 1984. —— The Berne Convention for the Protection of Literary and Artistic Works: 1886–1986, Centre for Commercial Law Studies, Queen Mary College, London: Kluwer, 1987. Rose, M., Authors and Owners: The Invention of Copyright, Cambridge, MA: Harvard University Press, 1993. Rose, R. and Shin, D.C., Democratisation Backwards: The Problem of Third Wave Democracies, University of Strathclyde Studies in Public Policy, No. 314, Glasgow: Centre for the Study of Public Policy, 1999. Rousseau, J.-J., Du contrat social et autres oeuvres politiques, introduction by Jean Ehrard, Paris: Garnier, 1975. —— Discours sur l’origine et les fondements de l’inégalité parmi les homes, L.-J. Lecercle (ed.), Paris: Editions socials, 1983. Russell, B., A History of Western Philosophy And Its Connection with Political and Social Circumstances from the Earliest Times to the Present Day, New York: Simon and Schuster, 1945. Sadikov, O.N. (ed.), Soviet Civil Law, Armonk, NY: M.E. Sharpe, 1988. Saunders, D., Authorship and Copyright, New York: Routledge, 1992. Sen, A., Development as Freedom, New York: Anchor Books, 2000 [originally published by Alfred A. Knopf, New York, 1999]. Service, R., A History of Twentieth-Century Russia, London: Penguin Books, 1997. Shanin, T., Russia as a “Developing Society,” Vol. 1, The Roots of Otherness: Russia’s Turn of the Century, London: The MacMillan Press, 1985. Solomon, P.H., Reforming Justice in Russia, 1864–1996: Power, Culture, and the Limits of Legal Order, Armonk, NY: M.E. Sharpe, 1997. Solovyov, V.S., Politics, Law, and Morality, V. Wozniuk (trans.), New Haven, CT: Yale University Press, 2000. Solzhenitsyn, A., “The Russian Question” At the End the Twentieth Century, Address to the International Academy of Philosophy, Y. Solzhenitsyn (trans.), New York: Farrar, Strauss and Giroux, 1995. Steiner, H.J. and Alston, P., International Human Rights in Context: Law, Politics, Morals, 2nd edn, Oxford: Oxford University Press, 2000. Stites, R., Culture and Entertainment in Wartime Russia, Bloomington: Indiana University Press, 1995. Strömholm, S., Le droit moral de l’auteur en droit allemand, français et scandinave avec un aperçu de l’évolution internationale – Etude de droit comparé, Vol. 1, Première Partie: L’Evolution historique et le mouvement international, Stockholm: P.A. Norstedt and Söners Förlag, 1967. Strowel, A., Droit d’auteur et copyright: Divergences et convergences – Etude de droit comparé, preface by Louis van Bunnen, Brussels: Bruylant, 1993. Swanson, J.M., Scientific Discoveries and Soviet Law: A Sociohistorical Analysis, Gainsville: University Presses of Florida, 1984. Teitel, R.G., Transitional Justice, New York: Oxford University Press, 2000. Thapar, R., A History of India, Vol. 1, Baltimore: Penguin Books, 1966. Tismaneanu, V., Political Culture and Civil Society in Russia and the New States of Eurasia, Vol. 7, The International Politics of Eurasia, Armonk, NY: M.E. Sharpe, 1995.

330

Select bibliography

Trebilcock, M.J. and Howse, R., The Regulation of International Trade, London: Routledge, 1995. Tuck, R., Natural Rights Theories: Their Origin and Development, Cambridge: Cambridge University Press, 1979. Vaver, D., Intellectual Property Law, Essentials of Canadian Law Series, Toronto: Irwin Law, 1997. —— Copyright Law, Essentials of Canadian Law Series, Toronto: Irwin Law, 2000. Vernadsky, G. (trans.), Medieval Russian Laws, W.T.H. Jackson (gen. ed.), Records of Civilization: Sources and Studies, NY: Octagon Books, 1965. von Geldern, J. and Stites, R., Mass Culture in Soviet Russia: Tales, Poems, Songs, Movies, Plays, and Folklore, 1917–1953, Bloomington: Indiana University Press, 1995. Vyshinsky, A.Y. (gen. ed.), The Law of the Soviet State, H.W. Babb (trans.) with an Introduction by J.N. Hazard, Westport, CT: Greenwood Press, 1948; reprinted with permission of Macmillan, 1979. Walker, G., Soviet Book Publishing Policy, Cambridge: Cambridge University Press, 1978. Watson, A., Roman Law and Comparative Law, Athens: The University of Georgia Press, 1991. Lord Wedderburn of Charlton (ed.), Otto Kahn-Freund: Selected Writings, London: Stevens, 1978. Wellman, C., The Proliferation of Rights: Moral Progress or Empty Rhetoric?, Boulder, CO: Westview Press Washington University, 1999. Yakovlev, A.M., Striving for Law in a Lawless Land: Memoirs of a Russian Reformer, Armonk, NY: M.E. Sharpe, 1996. Yambrusic, E.S., Trade-Based Approaches to the Protection of Intellectual Property, New York: Oceana Publications, 1992.

Articles and essays Abe, Y., “Besoin d’art, necessite de poesie,” Introduction to C. Baudelaire, Les Fleurs du mal, Paris: Orphée/La différence, 1989. Adelman, M.J. and Baldia, S., “Prospects and Limits of the Patent Provision in the Trips Agreement: the Case of India,” Vand J Transnatl L 29, 1996, 507. Adeney, E., “Defining the Shape of Australia’s Moral Rights: A Review of the New Laws,” IPQ 4, 2001, 291. Ajani, G., “By Chance and Prestige: Legal Transplants in Russia and Eastern Europe,” AJCL 43, 1995, 93. Alekseev, S.S., “Theory of Law,” in W.E. Butler (ed.), Russian Legal Theory, Dartmouth: Aldershot, 1996, 461. Alford, W.P., “Don’t Stop Thinking About . . . Yesterday: Why There Was No Indigenous Counterpart to Intellectual Property Law in Imperial China,” J Chinese L 7 (3), 1993, 3. Alston, P. “Conjuring Up Press New Human Rights: A Proposal for Quality Control,” AJIL 78, 1984, 607. Anand, P., “The Concept of Moral Rights under Indian Copyright Law,” Copyright World 27, 1993, 35. Anderson, M.J., Ellard, A.J.P., and Shafran, N., “Intellectual Property Protection in the Americas: The Barriers Are Being Removed,” J Proprietary Rts 4 (4), 1992, 2.

Select bibliography 331 Aoki, K., “(Intellectual) Property and Sovereignty: Notes toward a Cultural Geography of Authorship,” Stan L Rev 48, 1996, 1293. Arato, A., “Dilemmas Arising from the Power to Create Constitutions in Eastern Europe,” in M. Rosenfeld (ed.), Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives, Durham: Duke University Press, 1994, 165. Aslund, A., “Law in Russia,” E Eur Const Rev 8 (4), 1999, 96. Baev, A.A., “Recent Changes in Russian Intellectual Property Law and Their Effect upon the Protection of Intellectual Property Rights in Russia,” Suffolk Transnatl L Rev 19, 1996, 361. Balganesh, S. “Copyright and Free Expression: Analyzing the Convergence of Conflicting Normative Frameworks,” Chi-Kent J IP 4, Fall 2004, 45. Barendt, E., “Copyright and Free Speech Theory,” in J. Griffiths and U. Suthersanen (eds), Copyright and Free Speech: Comparative and International Analyses, Oxford: Oxford University Press, 2005, c. 2. Barron, A., “No other Law? Author-ity, Property and Aboriginal Art,” in L. Bently and S. Maniatis (eds), Intellectual Property and Ethics, London: Sweet and Maxwell, 1998, 39. Barsh, R.L., “How do you Patent a Landscape? The Perils of Dichotomising Cultural and Intellectual Property,” Intl J Cult Prop 8 (1), 1999, 14. Barta, J. and Markiewicz, R., “The New Polish Copyright Act – Standards and Particularities,” IIC 26 (3), 1995, 337. Bayefsky, A., “Cultural Sovereignty, Relativism, and International Human Rights: New Excuses for Old Strategies,” Ratio Juris 9, 1996, 42. Beirne, P. and Sharlet, R., “Toward a General Theory of Law and Marxism: E.B. Pashukanis,” in P. Beirne (ed.), Revolution in Law: Contributions to the Development of Soviet Legal Theory, 1917–1938, Armonk, NY: M.E. Sharpe, 1990. Berryman, C.A., “Toward More Universal Protection of Intangible Cultural Property,” JIPL 1, 1994, 293. Bhagwati, J., “Reshaping the WTO,” Far Eastern Econ Rev, January/February 2005. Online: www.columbia.edu/%7Ejb38/FEER%20Final%20Edited%20by%20 Restall%20and%20Bhagwati.pdf. Binder, G. and Weisberg, R., “Cultural Criticism of Law,” Stan L Rev 49 1997, 1149. Birnhack, M.D., “The Dead Sea Scrolls Case: Who is an Author,” EIPR 23 (3), 2001, 128. Blakeney, M., “Protecting Expressions of Australian Aboriginal Folklore under Copyright Law,” EIPR 17 (9), 1995, 442. —— “The Protection of Traditional Knowledge under Intellectual Property Law,” EIPR 22 (6), 2000, 251. Blankenagel, A., “Eyes Wide Shut: Displaced Cultural Objects in Russian Law and Adjudication,” E Eur Const Rev 8 (4), 1999, 75. Boffey, C., “Avtorskoye Pravo [Author’s Law]: The Reform of Russian Copyright Law – Toward an International Standard,” Md J Intl L and Trade 18, 1994, 77. Boguslavskii, M., “Private International Law,” in G. Ginsburgs, D.D. Barry, and W.B. Simons (eds), The Revival of Private Law in Central Eastern Europe: Essays in Honor of FJM Feldbrugge, The Hague: Kluwer Law International, 1996, 421. Booton, D.L., “A Critical Analysis of the European Commission’s Proposal for a Directive Harmonising the Droit de Suite,” IPQ 2, 1998, 165. Bowrey, K., “Who’s Writing Copyright’s History?,” EIPR 6, 1996, 322.

332

Select bibliography

Bowring, B., “Russia’s Accession to the Council of Europe and Human Rights: Compliance or Cross-Purposes,” Eur Hum Rts L Rev 6, 1997, 628. Boylan, S.P., “United States–Poland Economic Treaty: A Blueprint for Intellectual Property Reform in Eastern Europe and the Developing World?,” Fla J Intl L 6, 1990, 101. Braginskii, M.I., “The General Part of Civil Codification in Russia,” in G. Ginsburgs, D.D. Barry, and W.B. Simons (eds), The Revival of Private Law in Central Eastern Europe: Essays in Honor of FJM Feldbrugge, The Hague: Kluwer Law International, 1996, 99. Bray, R. “The European Union ‘Software Patents Directive’: What Is It? Why Is It? Where Are We Now?,” Duke L and Tech Rev, 2005, 11. Brennan, D.J., “The Three Step Test Frenzy – Why the TRIPs Panel Decision Might Be Considered Per Incuriam,” IPQ 2, 2002, 212. Breyer, S., “The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies and Computer Programs,” Harv L Rev 84 (2), 1970, 281. Broadbent, C.L. and McMillian, A.M., “Russia and the World Trade Organization: Will TRIPs Be a Stumbling Block to Accession?,” Duke J Comp and Intl L 8, 1998, 519. Brown, M., “The UK Protection of Films: Issues Raised by the Case of Norowzian v. Arks,” Ent LR 9 (8), 1998, 323 (case comment). Burford, R.E., Jr., “Getting the Bugs Out of Socialist Legality: The Case of Joseph Brodsky and a Decade of Soviet Anti-Parasite Legislation,” AJCL 22, 1974, 465. Burkitt, D., “Copyrighting Culture – The History and Cultural Specificity of the Western Model of Copyright,” IPQ 2, 2001, 146. Butler, W.E., “Justice in Russia: Soviet Law and Russian History,” Emory LJ 42, 1993, 433. —— “Foreign Legal Assistance in the CIS: Lessons from the Early Years,” in G. Ginsburgs, D.D. Barry, and W.B. Simons (eds), The Revival of Private Law in Central Eastern Europe: Essays in Honor in FJM Feldbrugge, The Hague: Kluwer Law International, 1996, 499. Caruthers, C., “International Cultural Property: Another Tragedy of the Commons,” Pac Rim L and Poly J 7, 1998, 143. Caviedes, A.A. “International Copyright Law: Should the European Union Dictate its Development?,” Boston U Intl LJ 16, 1998, 165. Chimni, B.S., “Towards Technological Wastelands: A Critique of the Dunkel Text on TRIPs,” in K.R.G. Nair and A. Kumar (eds), Intellectual Property Rights, UDCCS Seminar Papers Series No. 1, New Delhi: Allied Publishers, 1994, 91. Christie, A., “Reconceptualising Copyright in the Digital Era,” EIPR 17 (11), 1995, 522. —— “A Proposal for Simplifying United Kingdom Copyright Law,” EIPR 23 (1), 2001, 26. Colfin, B., “Freedom of Expression and the Exploitation of Creative Rights: The Struggle for Expression by Dissident Authors,” EIPR 9 (1), 1987, 18. Coombe, R.J., “Authorial Cartographies: Mapping Proprietary Borders in a Lessthan-Brave New World,” Stan L Rev 48, 1996, 1357. —— “Intellectual Property, Human Rights and Sovereignty: New Dilemmas in International Law Posed by the Recognition of Indigenous Knowledge and Conservation of Biodiversity,” Ind J Global Legal Stud, 1998, 59.

Select bibliography 333 Cornish, W.R., “Moral Rights Under the 1988 Act,” EIPR 11 (12), 1989, 449. —— “Authors at Law,” Mod L Rev 58, 1995, 1. Crews, K.D., “Harmonisation and the Goals of Copyright: Property Rights or Cultural Progress?,” Ind J Global Legal Stud 6, 1998, 117. Cross, J.T., “Suing the States for Copyright Infringement,” Brandeis LJ 39, 2000/01, 337. Curtis, J., “Literature under Gorbachev – A Second Thaw?,” in C. Merridale and C. Ward (eds), Perestroika: The Historical Perspective, London: Edward Arnold, 1991. Damich, E.J., “The Right of Personality: A Common-Law Basis for the Protection of the Moral Rights of Authors,” Ga L Rev 23, 1988, 1. Danilenko, G.M., “International Law in the Russian Legal System,” Proceedings of the 91st Annual Meeting of the American Society of International Law, 295, 1997. Darnton, R., “Sounding the Literary Market in Prerevolutionary France,” EighteenthCentury Studies 17 (4), 1984, 477. DaSilva, R.J., “Droit moral and the Amoral Copyright: A Comparison of Artists’ Rights in France and the United States,” Bull Copyrt Socy USA 28, 1980, 1. Davies, G., “The Convergence of Copyright and Authors’ Rights – Reality or Chimera?,” IIC 26 (6), 1995, 964. de Koning, M., “Why the Coercion-Based GATT Approach is not the Only Answer to International Piracy in the Asia-Pacific Region,” EIPR 19 (2), 1997, 59. DeLisle, J., “Lex Americana?: United States Legal Assistance, American Legal Models, and Legal Change in the Post-Communist World and Beyond,” U Pa J Intl Econ L 20, 1999, 179. Dembour, M.-B., “Human Rights Talk and Anthropological Ambivalence: The Particular Contexts of Universal Claims,” in O. Harris (ed.), Inside and Outside the Law: Anthropological Studies of Authority and Ambiguity, European Association of Social Anthropologists Series, London: Routledge, 1996. Dietz, A., “Trends in the Development of Copyright Law in the Countries of Central and Eastern Europe,” RIDA 162, 1994, 120. —— “Intellectual Property and Desocialisation in Eastern Europe,” IIC 26 (6), 1996, 851. —— “The Protection of Intellectual Property in the Information Age – The Draft E.U. Copyright Directive of November 1997,” IPQ 4, 1998, 335. —— “Term of Protection in Copyright Law and Paying Public Domain: A New German Initiative,” EIPR 22 (11), 2000, 506. Dine, J.M., “Authors’ Moral Rights in Non-European Nations: International Agreements, Economics, Mannu Bhandari, and the Dead Sea Scrolls,” Mich J Intl L 16, 1995, 545. Dougherty, T., “Group Rights to Cultural Survival: Intellectual Property Rights in Native American Cultural Symbols,” Colum Hum Rts L Rev 29, 1998, 355. Drahos, P., “Intellectual Property and Human Rights,” IPQ, 1999, 349. Dreier, T.K., “Authorship and New Technologies from the Viewpoint of Civil Law Traditions,” IIC 26 (6), 1995, 989. —— “Adjustment of Copyright Law to the Requirements of the Information Society,” IIC 29 (6), 1998, 623. Dreyfuss, R.C. and Lowenfeld, A.F., “Two Achievements of the Uruguay Round: Putting TRIPs and Dispute Settlement Together,” Va J Intl L, 1997, 275. Dworkin, G., “The Moral Rights of the Author: Moral Rights and the CommonLaw Countries,” Columbia-VLA J L and Arts, Spring/Summer 1995, 229.

334

Select bibliography

Edelstein, J.I., “Anonymity and International Law Enforcement in Cyberspace,” Fordham IP, Media and Ent LJ 7, 1996, 231. Edward, D.A.O., “What Kind of Law Does Europe Need? The Role of Law, Lawyers and Judges in Contemporary European Integration,” Col J Eur L 5, 1998–99, 1. Eliot, T.S., “Tradition and the Individual Talent,” in Selected Essays, New edn, New York: Harcourt, Brace and World, 1964, 3. Elst, M., “The Rehabilitation of Copyright in the Russian Federation,” in M. Elst and K. Malfliet (eds), Intellectual Property in the Russian Federation: A System in Transition, Brussels: Bruylant, 1984. —— “New Developments in the Copyright Legislation of the Russian Federation: Part I,” EIPR 15 (3), 1993, 95. —— “The Interaction of European Community and Russian Copyright Law: A Matter of Partnership and Cooperation,” Rev Cent and E Eur L 22 (3), 1996, 267. Emery, M.A., “Some Questions Underlying the Draft Model Provisions for Legislation in the Field of Copyright – A Pragmatic Approach,” Copyright, 1990, 302 (Studies). Entin, V.L., “Law and Glasnost,” in W.E. Butler (ed.), Perestroika and the Rule of Law: Anglo-American and Soviet Perspectives, London: IB Tauris, 1991, 110. Feofanov, Y. and Barry, D., “The Siniavskii–Daniel Trial: A Thirty Year Perspective,” Rev Cent and E Eur L 22 (6), 1996, 603. Ferenczi, C., “Freedom of the Press under the Old Regime, 1905–1914,” in O. Crisp and L. Edmondson (eds), Civil Rights in Imperial Russia, Oxford: Clarendon Press, 1989, 191. Ficsor, M., “The Past, Present and Future of Copyright in the European Socialist Countries,” RIDA 118, 1983, 33. Fitzgerald, B., “Grain Pool of WA v. The Commonwealth: (Australian) Constitutional Limits on Intellectual Property Rights – Comment,” EIPR 23 (2), 2001, 103. Fleishman, L.C., “The Empire Strikes Back: The Influence of the United States Motion Picture Industry on Russian Copyright Law,” Cornell Intl LJ 26, 1993, 189. Flint, D., “Encryption – Plainly Free Speech?,” Copyright World 102, 2000, 19. Fogelsong, T., “The Reform of Criminal Justice and Evolution of Judicial Dependence in Late Soviet Russia,” in Reform Injustice in P. Solomon (ed.), Russia, 1864–1994: Power, Culture, and Limits of Legal Order, Armonk, NY: M.E. Sharpe, 1997. Fontaine, R.W., “Red Phoenix Rising? Dealing with the Communist Resurgence in Eastern Europe,” June 1996, Cato Policy Analysis Number 255. Online: www.cato.org/pubs/pas/pa-255.html. Foster, F.H., “Information and the Problem of Democracy: The Russian Experience,” AJCL 44, 1996, 243. Foucault, M., “What is an Author?,” in P. Rabinow (ed.), The Foucault Reader, New York: Pantheon Books, 1984, 101. Franzosi, M. and de Sanctis, G., “Opinion – Moral Rights and New Technology: Are Copyright and Patents Converging?,” EIPR 17 (2), 1995, 63. Fraser, S., “Berne, CFTA, NAFTA and GATT: The Implications of Copyright Droit Moral And Cultural Exemptions in International Trade Law,” Hastings Comm and Ent LJ 18, 1996, 287. —— “The Conflict between the First Amendment and Copyright Law and Its Impact on the Internet,” Cardozo A and Ent LJ 16, 1998, 1. Frazier, J.A., “On Moral Rights, Artist-Centred Legislation, and the Role of the

Select bibliography 335 State in Art Worlds: Notes on Building a Sociology of Copyright Law,” Tul L Rev 70, 1995, 313. Frow, J., “Public Domain and Collective Rights in Culture,” IPJ 13, 1998, 39. Fuller, L.L., “Positivism and Fidelity to Law – A Reply to Professor Hart,” Harv L Rev 71, 1958, 630. Gadbaw, R.M. and Gwynn, R.E., “Intellectual Property Rights in the New GATT Round,” in T.J. Richards and R.M. Gadbaw (eds), Intellectual Property Rights: Global Consensus, Global Conflict?, Boulder, CO: Westview Press, 1988, 38. Gana, R.L., “Has Creativity Died in the Third World? Some Implications of the Internationalization of Intellectual Property,” Denv J Intl L and Poly 24, 1995, 109. —— “Prospects for Developing Countries under the TRIPs Agreement,” Vand J Transnatl L 29, 1996, 735. Gana Okediji, R., “Copyright and Public Welfare in Global Perspective,” Ind J Global Legal Stud, 1999, 117. Geller, P.E., “Copyright History and the Future: What’s Culture Got to Do With It?,” J Copyright Socy 47, 2000, 209. Gendreau, Y., “Copyright Harmonisation in the European Union and in North America,” EIPR 10, 1995, 488. Gervais, D. “The Internationalization of Intellectual Property: New Challenges from the Very Old and the Very New,” Fordham IP, Media and Ent LJ 12, 2002, 929. Ginsburg, J.C., “Four Reasons and a Paradox: The Manifest Superiority of Copyright over Sui Generis Protection of Computer Software,” Colum L Rev 94, 1994, 2559. Grosheide, F.W., “Copyright Law from a User’s Perspective: Access Rights for Users,” EIPR 23 (7), 2001, 321. Hamilton, M.A., “The TRIPS Agreement: Imperialistic, Outdated, and Overprotective,” in A.D. Moore (ed.), Intellectual Property: Moral, Legal, and International Dilemmas, Lanham, MD: Rowman and Littlefield, 1997, 243. Hansmann, H. and Santilli, M., “Authors’ and Artists’ Moral Rights: A Comparative Legal and Economic Analysis,” J Legal Stud 26, 1997, 95. Hart, H.L.A., “Positivism and the Separation of Law and Morals,” Harv L Rev 71, 1958, 593. Hart, M., “The Proposed Directive for Copyright in the Information Society: Nice Rights, Shame about the Exceptions,” EIPR 20 (5), 1998, 169. Hazard, J.N., “Ideological Remnants in Civil Law,” in G. Ginsburgs, D.D. Barry, and W.B. Simons (eds), The Revival of Private Law in Central Eastern Europe: Essays in Honor of FJM Feldbrugge, The Hague: Kluwer Law International, 1996, 421. Heide, T.P., “The Moral Right of Integrity and the Global Information Infrastructure: Time for a New Approach?,” UC Davis J Intl L and Poly 2, 1996, 211. Helter, L.R., “Adjudicating Copyright Claims Under the TRIPS Agreement: The Case for a European Human Rights Analogy,” Harv Intl LJ 39, 1998, 357. Henderson, E., “TRIPs and the Third World: The Example of Pharmaceutical Patents in India,” EIPR 19 (11), 1997, 651. Hendley, K., “Rewriting the Rules of the Game in Russia: The Neglected Issue of the Demand for Law,” E Eur Const Rev, 1999, 89. Hesse, C., “Enlightenment Epistemology and the Law of Authorship in Revolutionary France, 1777–1793,” Representations 30, 1990, 109. Heuman, S.E., “Perspectives on Legal Culture in Prerevolutionary Russia,” in P.

336

Select bibliography

Beirne (ed.), Revolution in Law: Contributions to the Development of Soviet Legal Theory, 1917–1938, Armonk, NY: M.E. Sharpe, 1990, 3. Horton, C.M. “Protecting Biodiversity and Cultural Diversity Under Intellectual Property Law: Toward a New International System,” J Env L and Lit 10, 1995, 1. Hosking, G.A., “The Institutionalization of Soviet Literature,” in G.A. Hosking and G.F. Cushing (eds), Perspectives on Literature and Society in Eastern and Western Europe, School of Slavonic and East European Studies, University of London: Macmillan Press, 1989, 55. Housman, R.F., “Democratising International Trade Decision-Making,” Cornell Intl LJ 27, 1994, 699. Huskey, E., “Russian Judicial Reform after Communism,” in P. Solomon (ed.), Russia, 1864–1994: Power, Culture, and Limits of Legal Order, Armonk, NY: M.E. Sharpe, 1997. Iatsyk, O., “Information Technology and Law in Russia: Protecting Information under Russian Law,” J World Intellectual Property 3 (1), 2000, 51. Izdebski, H., “General Survey of Developments in Eastern Europe in the Field of Law,” in G. Ginsburgs, D.D. Barry, and W.B. Simons (eds), The Revival of Private Law in Central Eastern Europe: Essays in Honor of FJM Feldbrugge, The Hague: Kluwer Law International, 1996, 499. Jaszi, P., “Toward a Theory of Copyright: The Metamorphoses of Authorship,” Duke LJ, 1991, 455. —— “On the Author Effect: Contemporary Copyright and Collective Creativity,” Cardozo A and Ent LJ 10, 1992, 293. Jones, L., “An Artist’s Entry into Cyberspace: Intellectual Property on the Internet,” EIPR, 22 (2), 2000, 79. Joubert, C., “Commentaires sur la nouvelle loi sénégalaise relative à la protection du droit d’auteur,” RIDA, 1974, 35. Karakis, B., “Moral Rights: French, United States and Soviet Compliance with Article 6bis of the Berne Convention,” Touro Intl L Rev 5, 1994, 105. Karel, P., “Political, Economic, and Legal Aspects of the Association of the Czech Republic with the European Union,” Rev Cent and E Eur L 23 (3), 1997, 205. Kingsbury, B., “Reconciling Five Competing Conceptual Structures of Indigenous Peoples’ Claims in International And Comparative Law,” NYU J Intl L and Poly, 34, 2001, 189. Kiszely, M., “Central and Eastern Europe and The Republics of the Former Soviet Union: Guide to Current Sources of Laws and Other Documents in English,” Intl J Legal Info 22, 1994, 141. Koblyakov, I. and Martiyanova, T., “Obshestvennoe dostoyanie kak osovii pravovoi rezhim obiekotv avtorskovo prava [Public Property as a Special Legal Regime],” Avtorskoye pravo i smezhnie prava 4, 2001, 31. Kovatch, W.J., “Joining the Club: Assessing Russia’s Application for Accession to the World Trade Organisation,” Temple L Rev 71, 1998, 995. Krasilovsky, W., “Observations on Public Domain,” Bull Copyrt Socy USA 14 (2), 1966, 205. Krishnamurti, T.S., “Copyright – Another View,” Bull Copyrt Socy USA 15 (3), 1968, 217. Krug, P., “Civil Defamation Law and the Press in Russia: Private and Public Interests, the 1995 Civil Code, and the Constitution Part One,” Cardozo A and Ent LJ 13, 1995, 847.

Select bibliography 337 Kruger, M., “Harmonising TRIPS and the CBD: A Proposal from India,” Minn J Global Trade 10, 2001, 169. Kühn, Z., “Worlds Apart: Western and Central European Judicial Culture at the Onset of the European Enlargement,” AJCL 52, 2004, 531. Kumar, N., “Cultural Imperialism and Third World Publishing,” Copyright, 1983, 17. Laddie, Mr Justice, “Copyright: Over-strength, Over-regulated, Over-rated?,” EIPR 18 (5), 1996, 253. Landes, W.M. and Posner, R.A., “An Economic Analysis of Copyright Law,” J. Legal Stud 18, 1989, 325. Lange, D., “Recognising the Public Domain,” L and Contemp Probs 44, 1981, 147. Levitsky, S.L., “Continuity and Change in Soviet Copyright Law: A Legal Analysis,” Rev Soct L 6 (4), 1980, 425. —— “The State As a Subject of Copyright in Soviet Law,” J Media L and Prac 1 (2), 1980, 137. Lillich, R.B., “Global Protection of Human Rights,” in T. Meron (ed.), Human Rights in International Law: Legal and Policy Issues, Oxford: Clarendon Press, 1984, 1992 reprint, 115. Long, D.E., “The Protection of Information Technology in a Culturally Diverse Marketplace,” John Marshall J Comp and Info L, 15, 1996, 129. Loughlan, P.L., “Looking at the Matrix: Intellectual Property and Expressive Freedom,” EIPR 24 (1), 2002, 30. McCaffrey, K.C., “ITAR-TASS Russian News Agency v. Russian Kurier, Inc. 153 F.3D (82) (2D Cir. 1998): Second Circuit Reaffirmed the Importance of Choice of Law Considerations International Copyright Disputes,” NY Intl L Rev 12, 1999, (Recent Decision) 93. Macdonald-Brown, C. and Ferera L., “First WTO Decision on TRIPs – Comment,” EIPR 20 (2), 1998, 69. McGrath, M., “The Patent Provisions in TRIPs: Protecting Reasonable Remuneration for Services Rendered – or the Latest Development in Western Colonialism?,” EIPR 18 (7), 1996, 398. Maggs, P.B., “Post-Soviet Law: The Case of Intellectual Property Law,” The Harriman Institute Forum 5 (3), 1991, 1. Maggs, P.B. and Beirne, P., “PI Stuchka and Soviet Law,” in P. Beirne (ed.), Revolution in Law: Contributions to the Development of Soviet Legal Theory, 1917–1938, Armonk, NY: M.E. Sharpe. 1990. Masouyé, C., “Décolonisation, indépendance et droit d’auteur,” RIDA 36, 1962, 85. —— “Le droit d’auteur en URSS,” RIDA 29, 1962, 3. —— “La protection des expressions du folklore,” RIDA 115, 1983, 3. Matheny, R.L., “In the Wake of the Flood: ‘Like Products’ and Cultural Products after the World Trade Organisation’s Decision in Canada Certain Measures Concerning Periodicals,” U Pa L Rev 147, 1998, 245. Mattei, U., “Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems,” AJCL 45, 1997, 5. Merryman, J.H., “The Refrigerator of Bernard Buffet,” Hastings LJ 27, 1975/76, 1023. —— “Two Ways of Thinking about Cultural Property,” AJIL 80, 1986, 831. Miller, D.E., “Combating Copyright Infringement in Russia: A Comprehensive Approach for Western Plaintiffs,” Vand J Transnatl L 33, 2000, 1203. —— “Finding a Conflicts Issue in International Copyright Litigation: Did the

338

Select bibliography

Second Circuit Misinterpret the Berne Convention in ITAR-TASS?,” Cardozo J Intl and Comp L 8, 2000, 239. Milrad, A., “Artful Ownership,” The Stolen Property Series, Pt. 1, Limits on Ownership, Art Cellar Exchange. Online: www.artcellarexchange.com/artlaw1/html. Muravina, E., “Copyright Transactions with Soviet Authors: The Role of VAAP,” Loyola LA Ent LJ 11, 1991, 421. —— “Copyright Transactions in Russia. Part I. The VAAP Era: 1973–1991,” New Matter, Winter 1993, 4. —— “Copyright Transactions in Russia. Part II. ‘Post-Glasnost Days’,” New Matter, Spring 1993, 25. N’diaye, N., “Influence du droit d’auteur sur le développement de la culture dans les pays en voie de développement,” RIDA 86, 1975, 59. Neigel, C., “Piracy in Russia and China: A Different US Reaction,” L and Contemp Probs, 63, 2000, 179. Netanel, N.W., “Asserting Copyright’s Democratic Principles in the Global Arena,” Vand L Rev 51, 1998, 217. —— “Copyright and the First Amendment: What Eldred Misses – and Portends,” in J. Griffiths and U. Suthersanen (eds), Copyright and Free Speech: Comparative and International Analyses, Oxford: Oxford University Press, 2005, 127. Nimmer, M., “Implications of the Prospective Revisions of the Berne Convention and the United States Copyright Law,” Stan L Rev 19, 1967, 499. —— “Conventional Copyright: A Morality Play,” Ent L Rev 3, 1992, 94. Oddi, A.S., “The International Patent System and Third World Development: Reality or Myth,” Duke LJ 5, 1987, 831. Pashukanis, E.B., “Selected Writings – The General Theory of Law and Marxism,” in W.E. Butler (ed.), Russian Legal Theory, New York: New York University Press Reference Collection, 1996, 40. Patry, W.F., “Copyright and Computer Programs: It’s All in the Definition,” Cardozo A and Ent LJ 14, 1996, 1. Paul, J.R., “Cultural Resistance to Global Governance,” Mich J Intl L 22, 2000, 1. Petrova, D., “Postcommunist Challenges to Legal Advocacy and Reform: Political and Legal Obstacles to the Development of Public Interest Law,” E Eur Const Rev 5 (4), 1996, 62. Pila, J. and Christie, A., “The Literary Work within Copyright Law: An Analysis of Its Present and Future Status,” IPJ, 13, 1999, 133. Pistor, K., “Supply and Demand for Law and Russia,” E Eur Const Rev 8 (4), 1999, 105. Pozhitkov, I., “Copyright and Neighboring Rights Protection in the Russian Federation,” Rev Cent and E Eur L 20 (1), 1994, 53. —— “Review of the Practical Enforcement of Authors’ Rights in the Russian Federation,” Ent L Rev 7 (8), 1996, 337. Preston, R.C., “Islam in Russia under the Federal Law on Freedom of Conscience and on Religious Associations: Official Tolerance in an Intolerant Society,” Brigham Young U L Rev, 2001, 773. Prins, C., “Emile Zola Receives an Answer: The Soviet Union is to Join the Berne Convention,” EIPR 13 (7), 1991, 238. —— “The New Civil Code of the Soviet Union: Major Changes in the Field of Intellectual Property Rights,” EIPR 13 (10), 1991, 388. —— “The Role of Law in the Development of the Russian Information Society,” in G. Ginsburgs, D.D. Barry, and W.B. Simons (eds), The Revival of Private Law in

Select bibliography 339 Central Eastern Europe: Essays in Honor of FJM Feldbrugge, The Hague: Kluwer Law International, 1996, 391. Rakhmilovich, A., “The Constitutional Court of the Russian Federation: Recent Cases on Protecting the Freedom of Thought and Speech and Related Matters,” Rev Cent and E Eur L 22 (2), 1996, 129. Rakhmilovich, V.A., “The New Civil Code of the Russian Federation,” Rev Cent and E Eur L, 22 (6), 1996, 135. Ralite, J., “Vers un droit d’auteur sans auteurs,” Le Monde diplomatique, March 1998, 5. Ramsey, L.E., “The Implications of the Europe Agreements for an Expanded European Union,” ICLQ 44, 1995, 161. Rapp, R.T. and Rozek, R.P., “Benefits and Costs of Intellectual Property Protection in Developing Countries,” J. World Trade 24 (5), 1990, 75. Rastorgoueff, L.P., “The New Law of Copyright in Russia,” J Socy Comp Leg (New Series), XII (I), 1912, 302. Reichman, J.H., “The Duration of Copyright and the Limits of Cultural Policy,” Cardozo A and Ent LJ 14, 1995, 625. Reinbothe, J. and von Lewinski, S., “The WIPO Treaties 1996: Ready to Come into Force,” EIPR 24 (4), 2002, 199. Ricketson, S., “The Concept of Originality in Anglo-Australian Copyright Law,” J Copyrt Socy USA 32, 1992, 265. —— “Simplifying Copyright Law: Proposals from Down Under,” EIPR 21 (11), 1999, 537. —— “The Boundaries of Copyright: Its Proper Limitations on Exception: International Conventions in Treaties,” IPQ 1, 1999, 56. Rom, M., “Some Early Reflections on the Uruguay Round Agreement as Seen from the Viewpoint of a Developing Country,” J World Trade 28 (6), 1994, 5. Rose, R., “How Russians Cope: Living in an Antimodern Society,” E Eur Const Rev 8 (1/2), 1999, 68. Rosen, Z., “Mod, Man, and Law: A Reexamination of the Law of Computer Game Modifications,” Chi-Kent J IP 4, 2005, 196. Roudakov, N.S. and Gringolts, I.A., “L’agence de l’URSS pour les droits d’auteur (VAAP): Sa création, ses fonctions, sa structure,” RIDA, 1974, 3. Sajo, A., “How Russian law reflects Russian realities: The Law of Liposuction,” E Eur Const Rev, 1999, 102. Salmon, P., “Co-operation Between the World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO),” St John’s J Leg Comment 17, 2003, 429. Samahon, T.N., “TRIPs Copyright Dispute Settlement after the Transition and Moratorium: Nonviolation and Situation Complaints against Developing Countries,” L and Poly in Intl Bus, Spring 2000, 1051. Samuelson, P., “Comparing US and EC Copyright Protection for Computer Programs: Are They More Different Than They Seem?,” J L and Comm (Symposium on US–EC Legal Relations) 13, 1994, 279. —— “The U.S. Digital Agenda at WIPO,” Va J Intl L 37, 1997, 369. Sarraute, R., “Current Theory on the Moral Right of Authors and Artists under French Law,” AJCL, 16, 1968, 465. Schermers, H.G., “The International Protection of the Right of Property,” in F. Matscher and H. Petzold (eds), Protecting Human Rights: The European Dimension, Verlag Köln: Carl Heymanns, 1988, 565.

340

Select bibliography

Schmidt, A.J., “Soviet Civil Law As Legal History: Chapter or a Footnote?,” in G. Ginsburgs, D.D. Barry, and W.B. Simons (eds), The Revival of Private Law in Central Eastern Europe: Essays in Honor of FJM Feldbrugge, The Hague: Kluwer Law International, 1996, 45. Schricker, G., “Farewell to the ‘Level of Creativity’ (Schöpfungshöhe) in German Copyright Law,” IIC 26 (1), 1995, 41. Schwartz, E.J., “Recent Developments in the Copyright Regimes of the Soviet Union and Eastern Europe,” J Copyrt Socy USA, 1991, 123. Sen, A., “Radical Needs and Moderate Reforms,” in A. Sen and J. Dreze (eds), Indian Development: Selected Regional Perspectives, Delhi: Oxford University Press, 1997, 1. Sharlet, R., Maggs, P.B., and Beirne, P, “PI Stuchka and Soviet Law,” in P. Beirne (ed.), Revolution in Law: Contributions to the Development of Soviet Legal Theory, 1917–1938, Armonk, NY: M.E. Sharpe, 1990, 45. Sherwood, R.M., “The TRIPS Agreement: Implications for Developing Countries,” IDEA: J L and Tech 37, 1997, 491. Sokol, R.P. “Freedom of Expression in France: The Mitterand–Dr. Gubler Affair,” Tulane J Intl and Comp L 7, 1999, 5. Solomon, P.H. and Fogelsong, T.S., “The Procuracy and the Courts in Russia: A New Relationship?,” E Eur Const Rev 9 (4), 2000. Online: http://www.law.nyu. edu/eecr/vol9num4/features/nikitinarticle5.html. Sterling, J.A.L., “Creator’s Right and the Bridge between Author’s Right and Copyright,” IIC 29 (3), 1998, 302. —— “Philosophical and Legal Challenges in the Context of Copyright and Digital Technology,” IIC 31 (5), 2000, 508. Stokes, S., “Categorising Art in Copyright Law,” Ent L Rev 12 (6), 2001, 179. Strömholm, S., “Droit Moral – The International and Comparative Scene from a Scandinavian Viewpoint,” IIC 14 (1), 1983, 1. Subedi, S.P., “Protection of Women Against Domestic Violence: the Response of International Law,” Eur Hum Rts Rep, 6, 1997, 587. Suhl, N.C., “Moral Rights Protection in the United States under the Berne Convention: A Fictional Work?,” Fordham IP, Media and Ent LJ 12, 2002, 1203. Sundara Rajan, M.T., “Moral Rights and the Protection of Cultural Heritage: Amar Nath Sehgal v. Union of India,” Intl J Cult Prop 10 (1), 2001, 79. —— “Moral Rights in the Public Domain: Copyright Matters in the Works of Indian National Poet C. Subramania Bharati,” Sing J Leg Stud, 2001, 161. —— “The Implications of International Copyright Law for Cultural Diversity Policies,” in T. Bennett, Differing Diversities: Cultural Policy and Cultural Diversity, Strasbourg: Cultural Policy and Action Department Council of Europe, 2001. —— “The Past and Future of Privacy in Russia,” Rev Cent and E Eur L 27 (4), 2001, 625 [backdated from 2002]. —— “Moral Rights and Copyright Harmonization: Prospects for an ‘International Moral Right’?,” paper presented at the Annual Conference of the British and Irish Law, Education, and Technology Association (BILETA), April 2002, Free University Amsterdam (an updated version of the paper is currently pending submission to the European Intellectual Property Review). —— “Moral Rights in the Digital Age: New Possibilities for the Democratisation of Culture,” Int Rev L, Comp and Tech, 16 (2), 2002, 187. —— “Moral Rights in Information Technology: A New Kind of ‘Personal Right’?,” IJLIT 12 (1), 2004, 32.

Select bibliography 341 —— “The Artist in a Global Village: Harmonization and Arts Law in the UK,” Media and Arts Law Review 10 (2), 2005. —— “The ‘New Listener’ and the Virtual Performer: The Need for a New Approach to Performers’ Rights,” in M. Geist (ed.), In the Public Interest: The Future of Canadian Copyright Law, Toronto: Irwin Law/Creative Commons, 2005, 309. —— “Copyright and Free Speech in Transmission: The Russian Experience,” in J. Griffiths and U. Suthersanen (eds), Copyright and Free Speech: Comparative and International Analyses, Oxford: Oxford University Press, 2005, c. 13. Sviridova, A., “Living in Lawlessness,” in feature: “Citizen and Law after Communism,” E Eur Const Rev 7 (1), 1998, 71. Swenson, B., “Intellectual Property Protection through the Berne Convention: A Matter of Economic Survival for the Post-Soviet New Commonwealth of Independent States,” Denv J Intl L and Poly 21, 1992, 77. Tapper, C.B. “Criminality and Copyright,” in D. Vaver and L. Bently (eds), Intellectual Property in the New Millennium: Essays in Honour of William R. Cornish, Cambridge: Cambridge University Press, 2004, c. 19. Teitel, R., “Transitional Jurisprudence: The Role of Law in Political Transformation,” Yale LJ 106, 1997, 2009. Tiefenbrun, S., “Piracy of Intellectual Property in China and the Former Soviet Union and its Effects Upon International Trade: A Comparison,” Buffalo L Rev 46, 1998, 1. Tucker, R.C., “What time is it in Russia’s History?,” in C. Merridale and C. Ward (eds), Perestroika: The Historical Perspective, London: Edward Arnold, 1991, 34. Tunney, J., “E.U., I.P., Indigenous People and the Digital Age: Intersecting Circles?,” EIPR 20 (9), 1998, 335. Tuomi, W.V., “Protecting Aboriginal Folklore: Copyright and Charter Rights,” Can IP Rev 16 (2), 2000, 403. Turner, J.E., “Artists in Adversity: The Siniavskii–Daniel Case,” in T.L. Becker (ed.), Political Trials, New York: Bobbs-Merrill, 1971, 107. Tyulubeva, L., “Uchebnik po-piratski [A Textbook the Pirate’s Way],” Avtorskoye pravo i smezhnie prava 3, 2000, 65. —— “Muzeinie tsennosti i knigoizdanie [Museum Values and Book Publishing],” Avtorskoe pravo 3, 2001, 75. Vaver, D. “Authors’ Moral Rights in Canada,” IIC 14, 1983, 329. —— “Translation and Copyright: A Canadian Focus,” EIPR 16 (4), 1994, 159. —— “Introduction to Issues of Current Concern in European Intellectual Property Law,” OIPRC Electronic Journal of Intellectual Property Rights WP 08/99. Online: www.oiprc.ox.ac.uk?EJWP0899.html. —— “Recent Copyright Developments in Europe,” OIPRC Electronic Journal of Intellectual Property Rights WP 06/99. Online: www.oiprc.ox.ac.uk?EJWP0699. html. —— “Moral Rights Yesterday, Today and Tomorrow,” International Journal of Law and Information Technology 7 (3), 1999, 270. —— “Canada’s Intellectual Property Framework: A Comparative Overview,” IPJ 17, February 2004, 125. Vicente, W.S., “Questionable Victory for Coerced Argentine Pharmaceutical Patent Legislation,” U Pa J Intl Econ L 19, 1998, 1101. Vinje, T.C., “Harmonising Intellectual Property Laws in the European Union: Past, Present and Future,” EIPR 17 (8), 1995, 361.

342

Select bibliography

Von Lewinski, S., “Copyright in Central and Eastern Europe: An Intellectual Property Metamorphosis,” Fordham IP, Media and Ent LJ 8 (1), 1997, 39. —— “A Successful Step Towards Copyright and Related Rights in the Information Age: The New E.C. Proposal for a Harmonisation Directive,” EIPR 20 (4), 1998, 135. —— “Proposed EC Directive on Copyright and Related Rights in the Information Society as it Progresses,” IIC 30 (7), 1999, 767. Waldron, J., “Homelessness and the Issue of Freedom,” UCLA L Rev 39, 1991, 295. —— “From Authors to Copiers: Individual Rights and Social Values in Intellectual Property,” Chi-Kent L Rev 68, 1993, 841. Woodmansee, M., “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author’,” Eighteenth-Century Studies 17, 1984, 425. Yakovlev, A., “Legal Protection of Computer Programs in Russia,” EIPR 18 (5), 1996, 292. Zabatta, P.G., “Moral Rights and Musical Works: Are Composers Getting Berned?,” Syracuse L Rev 43, 1992, 1095. Zlatarski, V., “ ‘Moral’ Rights and Other Moral Interests: Public Art Law in France, Russia, and the United States,” Colum-VLA J L and Arts 23, 1999, 201.

Interviews Interview with Y. Yevtushenko, Red Spring: Episode 14 (The Sixties), Online: www.cnn.com/SPECIALS/cold.war/episodes/14/interviews/yevtushenko/.

Index

access, right of 32–6, 90–3, 100–1, 211–12, 214–16 adaptation 319n65 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) see TRIPs Agreement AIDS 210 Akhmatova, Anna 131, 206 Aksenov, Vasily 115 Alford, William 18, 222 alienation, right of 286n34 All-Union Administration for the Protection of Copyrights (VOUAP), Russia 112, 120–1 All-Union Agency of Copyrights (VAAP), Russia 112–13, 118–19, 121 anonymous works 85, 96, 98, 108, 109, 115–16, 137, 193, 290n108 anti-Soviet propaganda 74, 103, 111–19, 127–30, 133–6 arbitrazh courts, Russia 196 artistic creation, persistence of 223–4 artistic judgment 110–11 Arzhak, Nikolai 125 Asphalt Jungle, The 200–1, 287n53, 307–8n12 attribution right 78, 83, 85, 96, 98–9, 107–8, 109, 115–16, 184, 195, 201, 226, 282n80 audiovisual works 23, 29, 44, 201, 257n80, 260n16, 266n84, 310n142–3 Australia 41, 165, 304n58 authors’ rights: role in democratization 68–71; Russia 90–3, 109–20 authors’ views, consistency of 143–4 authorship: prerogatives of 140–1; rights of 171, 175–8, 180, 184, 193–4

Berman, Harold 128 Berne Convention for the Protection of Literacy and Artistic Works (1886) 11–13; Article 2(1) 197; Article 5 85–6; Article 6bis 23, 32, 42, 108, 162, 164–5, 169, 171–2, 175, 176, 184, 193, 200, 225–6, 236, 292n131; Article 17 73–4, 121–2, 137; Berlin Act (1908) 85, 88; Committee of Honor 77; convention on developing countries 17, 252n26; improvement to standards 168; influence of 163–5, 173–4; membership 15–16, 52, 84, 100, 101–2, 161–3, 253n41, 254n44, 267n90; and national treatment 86; Paris text (1971) 15, 52; requirements of 183; Rome text (1928) 15, 78; Stockholm Protocol (1967) 254n45, 287n54; and TRIPs 14; and the United States 161–3 Bhagwati, Jagdish 7 bilateral conventions, Russia 86 Blok, Alexandr Aleksandrovich 91 Bolsheviks 89, 90–3, 110, 117, 128 Brezhnev, Leonid 131, 154 Brodsky, Joseph 113, 117, 140, 290–1n113 Brothers Karamazov, The 135 Buffet, Bernard 200 Bulgaria 15 Butler, William 60 Canada 19, 44, 119, 175, 255n57, 304n58 case law 104–6, 116–19, 198–203; see also Siniavski–Daniel case Caxton, William 73, 259n6, 277n6 censorship 30–4, 72, 73–4, 102–7, 111–19, 137–8, 205–6, 249n8, 314n12

344

Index

Censorship Statute (1828), Russia 30, 78, 79–81, 83 Central and Eastern Europe 4, 14, 16, 19, 166–7, 187–8; see also post-socialist countries Chekhov, Anton 90 China 18, 222, 255n55, 299n5, 319n64 Chukovskaya, Lidia 134–5 Civil Code, Russia: (1887 reform) 81–2; (1964 reform) 99, 105, 136–7, 157, 173, 181–3, 184, 205–6, 207–8, 237; (1992 reform) 187–8; Draft 187–97, 203, 207–8, 218, 227, 228, 236 civil law 56, 276n90, 311n17, 316n23 classical literature 90–3, 100–1 co-authorship 95, 118, 192 Code de propriété intellectuelle et artistique, France 198, 278–9n31, 304n60 Code of Criminal Procedure (1960), Russia 128 Cold War 158–9 common-law 30–4, 40–1, 72, 201, 209, 211, 276n89, 277n5, 281n52, 316n23 communism: Bolsheviks 90–3; international protection 100–9; overview 90; reforms 97–100; status of authors’ rights 109–20; theories of copyright 93–7 communism, breakdown of: current copyright law 169–83; overview 150–2; perestroika and legal change 152–5; reform of copyright 155–69 Communist Party, Russia 123–4, 153, 154 community-based rights 216 comparative law 56–9 compulsory purchase of copyright 103–4, 171, 183, 206, 298n92 computer programs 17, 44, 175, 179–80, 192–3, 197 Constitution: Germany 208, 315n15; Russia 56, 157, 208, 274n59, 302n35; US 43, 197, 208, 229 Constitutional Court, Russia 196, 315n17 Continuation of a Legend, The 105–6 contracts 84, 117–18, 147 copyright: comparative 56–9; development of 73–4; and freedom 30–40; future of 1–6, 40–5; interpretation of 115–19; negative impact of 33–4; new idea of 11–13,

39–40; obsolescence of 35–8; status of 87–8; tradition 107–9; in transition 234–42; see also duration of; reform Copyright Act (1911), UK 85 Copyright Act, Russia: (1911) 76–7, 78–9, 82–5, 87–8, 94, 95–6, 101, 109, 166, 172, 211; (1918) 91, 117; (1925) 93, 94–5, 97; (1928) 94, 95–8, 104, 211; (1993) 55, 158, 160, 167, 170, 173–9, 180–1, 185, 190, 192–200, 202–3, 207, 236, 237, 300–1n23 copyright industries 13, 32–3, 37, 185–6 Copyright Law (1901), Germany 83 Copyright Treaty (WCT) (1996) 168–9, 180–1, 195, 254–5n54, 257n76, 258n84, 261n21; renewed role for 22–4 Creative Commons movement 32–3 creative expression: new forms of 29; persistence of 223–4; Russia 111–19 creative freedom 35–8, 144–8; and moral rights 228–31; see also Siniavski–Daniel case creative professions, Russia 109–11 creative rights 214–15 Criminal Code (1960), Russia 107, 124, 127–30, 132, 133–4, 293n24 Crucible, The 140 cultural heritage 194, 195–6, 315n16 cultural liberalization 62–8 cultural policy under socialism 90–3 cultural systems 212–14 cultural traditions 18–19, 219–20, 274n68 culture: and moral rights 225–8; in transition 234–42 Curtis, Julie 154 cynicism, Russia 97–100 Czechoslovakia 15 Daniel–Siniavski case see Siniavski–Daniel case DaSilva, R.J. 199–200 databases 179–80, 192–3 deceased authors 177–8, 190–1, 194, 203, 227–8; nationalization of publication rights 90–3 defamation 105, 230 Dembour, Marie-Bénédicte 220–1 democratic attitude to knowledge 68–71

Index 345 democratization, role of author’s rights 68–71 Department for the Protection of Authors’ Rights, Russia 112 derivative works 174, 194 developing countries 272–3n46–55; and Berne Union 12–13, 17; cultural traditions 18–19; historical disadvantages 61; intellectual property 255n58; as jurisdictions in flux 2–3; moral rights 35, 45, 198, 201, 222–3, 267n88; and TRIPs 14–16, 38–9 Dickens, Charles 11 Dietz, Adolf 36, 163–4 “Digital Age” 32, 35–6, 158–60, 168–9, 208, 248–9n3 Digital Millennium Copyright Act (DMCA) (1998), US 23, 37, 169, 253n33 disclosure, rights of 78, 80, 82, 83–4, 85, 108, 109, 116, 142–4, 174, 175, 180, 184, 198–9, 226–7, 312n38 Dissanayake, Ellen 224 dissidents 53, 74, 102–3, 106–7, 270n22, 292n5 domaine public payant scheme 178, 196, 207, 312n31 Donaldson v. Becket 40 Dostoevsky, Fyodor 74, 90, 126, 127, 135 Dr Zhivago 112, 114, 119, 144, 206 Drahos, Peter 215, 216–17 droit de créer see creative freedom droit de divulgation 199 droit de repentir 199–200 droit de retrait 199–200 droit de suite 179, 193 dualist theories of moral rights 78, 279n36 duration of copyright 36, 76, 80, 81, 85, 87, 94–5, 99–100, 162, 171, 177, 181, 190–1, 192, 202, 259–60n13–14, 281n57, 287n48 economic development 17, 49–50, 60–2, 68–9, 301n25 economic exploitation of works 27 economic freedom 38–9 economic issues, Russia 100–2 economic rights 80, 121, 174, 182–3, 191, 192, 205–6, 219: connection with moral rights 78; of publishers 31 Eden, Sir William 199

editorial judgment, Russia 113–14 Ehrenburg, Ilya 119 Einstein, Albert 54 Eldred v. Ashcroft 43 Elst, Michael 157, 158, 167 employers’ rights 180 enforcement of copyright 36–40, 42–3, 159–60, 191–2; TRIPs 163, 164, 166 Entin, V.L. 152 Esenin-Volpin, Aleksandr 221 Europe: history of copyright 72–3; resurgence of WIPO 16–24 European Union (EU) 19–20; copyright harmonization 20–1, 166–8; influence of 51, 161; membership 269–70n13, 306n77; and moral rights 41, 44, 165, 260–1n20; relations with WTO 20–1 exclusive rights 76, 80, 96, 137, 170, 174, 180, 181, 191–2, 311–12n29 expression, freedom of 30–4, 211–12, 228–31, 277n11 Feist case (1991) 36 Feofanov, Y. 130–1, 135, 143–4 film industry see audiovisual works Ficsor, Mihály 52, 53 Fitzgerald, B. 150 Fitzpatrick, Sheila 90–1 folklore works 76, 172, 192, 222, 223 foreign authors, protection of 87, 101–2, 153 foreign legal experts, Russia 59, 156, 189, 207 foreign literature, suspicion of 86, 102 France 288n81; history of copyright 72; influence of 109, 167; moral rights 43, 44, 78, 105–6, 107–8, 136–7, 198–201, 231, 258–9n4, 280n39; natural rights theory 77 Free Software Foundation 17, 33, 259n12 Fukuyama, Francis 64 Fundamentals of Civil Legislation, Russia: (1961) 95, 97–100, 103–4, 118, 136–9, 140–1, 205–6; (1991 amendments) 156–7, 170–3, 177, 179, 190, 206, 207, 236, 237 Galanskov, Yuri 140 Gashi-Butler, Maryann 187–8 Gashi-Butler, William 187–8 GATT (General Agreement on Tariffs and Trade) 162, 166

346

Index

General Theory of Law and Marxism 93–4 Germany 36, 274n64, 312n31; influence of 78, 87, 109, 167; Kantian approach 107; membership of Berne Union 15; moral rights 44, 76, 208 Ginsburg, Alexander 131, 140 glasnost 151, 152–5 globalization: change as constant 13–15; Europe and resurgence of WIPO 16–24; international framework for copyright protection 24–5; new idea of copyright 11–13; overview 7–11; TRIPs and the developing world 15–16 Gogol, Nikolai 90 Gorbachev, Mikhail 151, 152–4, 161, 169 Gorky, Maxim 91, 143 Gospatent 189 Gould, Glenn 36, 260n18 Grameen Bank 221 Gsovski, Vladimir 80, 84, 111–12, 121 Gulag Archipelago, The 206 Hamilton, Marci 69 Hands 125 harmonization of copyright 16–24, 51–3, 61, 73, 187, 256n67, 266n86, 272n45; EU 166–8, 305n75, 318n45; TRIPs 69–70 Hart, H.L.A. 8 Hayward, Max 125, 126, 144 Heisenberg, Werner 54 Heuman, Susan 75–6 historical context of reform 54–7 historical materialism 93 Hosking, Geoffrey 77, 112, 114–15, 150, 151, 154, 223 Hugo, Victor 77 human rights: and copyright 214–18; and intellectual property 210–14; and moral rights 72–3, 218–33; overview 205–10 Huston, John 193, 200–1, 287n53, 307–8n112, 311n26, 322n3 ideological control, Russia 67–8, 102–7 imagination, freedom of 140, 146–7 inalienability of rights 172, 321n86 incentives to create 50, 53, 68, 76–7 India 15, 18, 38, 50, 159, 180, 197, 201, 213, 265n73, 267n89, 301n33, 319n65, 320n78

information regimes 66–8, 275n74, 275n76 infringement 13–14, 37, 84, 97, 166, 182–3, 191–2 inheritability of rights 172, 177, 91–2, 94–5, 98, 284–5n10, 306n95 integrity, right of 78, 83–4, 96–7, 98–9, 104–6, 108, 109, 171–2, 176–7, 182, 200–1, 225–8 intellectual property 317n39; and human rights 210–14; after socialism 49–51 internalized censorship 114–15 international copyright 7–25; Tsarist Russia 85–7 International Covenant on Civil and Political Rights (1976) 214 International Covenant on Economic, Social and Cultural Rights (1976) 214–15, 225 international economy 47–9 international framework for copyright protection 24–5 international human rights law 214–18 International Intellectual Property Alliance (IIPA) 173 international issues, copyright reform 160–9 International Literary Association 12 international moral rights 42–3 international pressure to harmonize 51–3 international protection of copyright 100–9 internationalization: national laws 56–9; Western norms 69–70 Internet Treaties, WIPO see Copyright Treaty (WCT); Performances and Phonograms Treaty (WPPT) inviolability of works 99, 109, 116, 141–2, 171, 177, 193–4, 289n87, 315n17, 320n79 Iron Curtain, The 104–5, 293n25 Japan 58 judicial interpretation of rights 198–203 Kahn-Freund, Sir Otto 3 Kaplan, Benjamin 31 Kenez, Peter 137 Khatchaturian, Aram 105 Khrushchev, Nikita 94, 97, 99, 119, 123–5, 126, 131, 133, 136, 153–4, 292n1, 300n16

Index 347 Kistiakovsky, B.A. 75 Klein, Naomi 7 knowledge: access to 50, 90–3; free circulation of 27–8; protection of 316–17n33; works of 197 Kuznetsov, Anatoli 105–6 Lady Chatterley’s Lover 139 language status, Russia 81 law: credibility of 29–30; in transition 65–6 Law on the Legal Protection of Computer Programs and Databases (1992), Russia 179–80, 312n34 law reform, Russia 152–8 law-limited power 66 lawlessness, Russia 159–60 Lawrence, D.H. 139 laws, hierarchy of 156–8 legal imperialism 2, 57–9 legality, re-establishment of 119–20 legislative issues, Russia 156–8, 196 Lenin, Vladimir 63, 90, 92, 93, 143, 295n57 Lessig, Lawrence 32–3 Levitsky, Serge 84, 94, 95–6, 98, 99, 104 liberal movement, Russia 75–6, 77 licensing schemes 32–3, 111–12, 193 literary techniques 146 long-term v. transitional law reform 155–6 McCarthy, Joseph 140, 297n80–1 Makepeace Experiment, The 125 Mandelstam, Osip 74, 131 Marxism 89, 94–6, 109, 115, 285n18 Mattei, Ugo 2, 57–8, 59 medicine 34, 210, 212–13, 255n57, 301n33, 315n20 Mexico 19 Millar v. Taylor 32, 40 Miller, Arthur 140 modernization, Russia 82–5 modification of works 84 monist theories of moral rights 78, 279n36 moral rights 40–5, 277n4; continuing improvements to 195–7; and creative freedom 228–31; and culture 225–8; in Daniel–Siniavski prosecution 136–48; expansive model of 203–4; as future of copyright law 40–5; and human rights 218–24; interpretation

in Russia 115–19; judicial interpretation 198–203; Russia 77–85, 195–7l; in TRIPs 164–5; true politics of 231–3 moral rights theory 139 most-favored nation status 162, 166 multi-faceted works 192 multimedia 197 Muravina, Elena 73, 112, 113 musical works 81 N’diaye, N’dene 62 NAFTA (North American Free Trade Agreement) 19 name, right of 85, 171, 175, 177, 178, 184, 190, 193–4 national development models 18–19 national laws, internationalization of 56–9 national treatment 101–2, 166, 193, 270n20 nationalization program, Russia 90–3, 105, 117 natural rights theory 77, 264n56, 277n8 neighboring rights 23; Draft Civil Code 195 Netanel, N.W. 69–70 New Economic Policy (NEP), Russia 92, 98 New York District Court 105, 166 Newcity, M.A. 79, 88, 92, 103, 106, 113, 142 non-conformist works 110–19 non-property theory of authorship 96–7 Novy Mir 114 Nuremberg war criminal trials 219 On Socialist Realism 125, 126 One Day in the Life of Ivan Denisovich (1962) 99, 120, 123 open source movement 28–9, 44 oral works 34, 76, 172 originality, concept of 222 ownership of copyright 77, 211, 229, 275n82 parody 43, 229–31 Pashukanis, E.B. 93–4 Pasternak, Boris 112, 114, 119, 125, 131, 144, 206 Patent Appeals Chamber, Russia 189 patents 17, 29, 189, 195, 210, 212–13, 259–60n13, 301n25

348

Index

perestroika 151, 152–5, 162, 169–70, 299n6 Performances and Phonograms Treaty (WPPT) (1996) 41, 44, 168–9, 180–1, 254–5n54, 257n76, 258n84, 261n21; renewed role for 22–4 performers’ rights 23–4, 169, 172, 179, 195, 265n70 personal rights 277n4, 316n24; see also moral rights Petrashevsky Circle 74 philosophical implications, TRIPs 163–5 piracy 11, 38, 48, 79, 160, 303n54 Pistor, Katharina 66 Plekhanov, Georgy V. 92 political constraints and moral rights 144–8 political issues, Russia 102–7 political judgment, authors/publishers 113–15 political role of creative authorship 135–6 political transformation 68–71 politics of moral rights 231–3 post mortem auctoris 178–9, 180 post-colonial modernization 17, 58, 318n53 post-communist copyright: Civil Code project 188–90; Draft Civil Code 190–7; expansive model of moral rights 203–4; judicial interpretation of moral rights 198–203; overview 187–8 post-socialist countries: approaches to reform 53–9; copyright law 51–3; dimensions of reform 60–71; intellectual property 49–51; overview 47–9; transformation of 3–4 posthumous rehabilitation 178–90, 181 posthumous works 194 Pozhitkov, I. 176 Prins, Corien 53, 101 printing technology 11, 73–4, 259n6, 277n6 privacy, right of 143 Private Law Research Center, Russia 188–90 Prokofiev, Sergei 104–5 property-based rights, Russia 81–2, 95–6 pseudonymous works 85, 96, 98, 108, 109, 115–16, 135, 137, 140–1, 193 psychological impact of censorship 114–15

public domain works 105, 117, 178, 194, 227–8 public interest, recognition of 174–5 public performance rights 83, 282n72 public right to culture 214–15 publication right 78, 80, 82, 83, 108, 142–3, 171, 181, 193–4, 196, 210, 227, 296n72; nationalization of 90–3, 108, 111–13 publishers: editorial judgment 113–14; exploitation by 84, 201 publishing abroad 102–3, 112, 129–30, 142 publishing licences system, Russia 111–12, 141, 142 publishing, regulation of 79–80 Pushkin, Alexander 74, 77, 81, 90, 284n9, 314n1 radicalism, Russia 90–3, 97–100 Ralite, Jacques 37 Rastorgoueff, L.P. 82, 83 Recht, Pierre 225 reform 13–15; post-socialist countries 53–71; Russia 97–100, 155–69, 267–8n2–4 Reinbothe, Jorg 22 reproduction of works 175 reputation, right to 175–6, 178, 184, 193, 200, 225–8 resale royalties 179 Ricketson, S. 73 rights: balance of 60, 69–70; concept of 220–1 Romania 15 Rospatent 189 royalties 178, 179 Rushdie, Salman 139, 297n77 Russia: cultural policy 90–3; current copyright law 169–83; expansive model of moral rights 203–4; experience of reform 3–4; international copyright 85–7; international protection of copyright 100–9; judicial interpretation of moral rights 198–203; membership of UCC 52–3; moral rights 77–85, 195–7; overview 3–4, 5; perestroika and legal reform 152–5; prerevolutionary development of copyright 73–4; reform of copyright 97–100, 152–69; status of author’s rights 109–20; status of copyright 87–8; theories of copyright 75–7,

Index 349 93–7; see also communism; postcommunist copyright; post-socialist countries; Tsarist Russia Sakharov, Andrei 154 samizdat 102, 114, 115, 287n57, 317n37 Schmidt, Albert 55–6, 63 science, works of 197 Sehgal, Amar Nath 201 self-censorship, Russia 114–15 Shostakovich, Dmitri 104–5, 105, 111, 193, 200, 266n81, 289n89, 293n25, 311n26, 322n4 Sinclair, Upton 92, 285n12 Siniavski–Daniel case 107, 113, 119, 120, 122, 139, 205, 278n14, 292n9, 292n129, 295n52, 295n56, 298n100; conduct of defendants 140–8; defence/prosecution 133–6; and moral rights 136–40; overview 123–4; trial 124–33 skaz 127, 293n21 social benefits of creativity 145–6 social change 48–9, 62–8 socialist history 54–6 socialist legacy 60–1 socialist legality, Russia 53, 94, 119–20, 123, 131, 133–4 socially important expression 230–1, 298n102 Société des gens de letters, Paris 77 Solzhenitsyn, Alexander 99, 120, 123, 206 Soviet Union see Russia Special 301 Report, USTR 166, 169, 173, 307n99 Spycatcher 139, 277n9 Stalin, Joseph 56, 94, 99, 119, 120, 123, 125, 126, 128, 223, 300n16 Stallman, Richard 17, 33 standardization 42–3, 61, 304n59 State and Revolution, The (1917) 93 state censorship, Russia 111–13 Stationers’ Company, UK 30–1, 261n26–7, 279n33 Statute of Anne (1710), UK 30–1, 38, 40, 46, 250–1n16 Strömholm, S. 35, 77, 84, 147–8 sui generis approach 82–5, 95, 107 Supreme Court, Russia 118, 153, 206, 294–5n48 Supreme Court, US 36, 43, 230 Supreme Patent Chamber, Russia 189, 196

Tapper, Colin 8, 10, 168 Tarsis, Valery 140 technological change 17–19, 27–30, 97–8 technological issues 13–15, 153, 156, 158–60, 174, 185 technology: access to 50; availability of 35–6; challenges of 27–30; moral rights 265n73 Teitel, Ruti 65, 156 Tertz, Abram 125, 143 “Thaw”, Russia 99, 119–20, 123–4, 154 theories of copyright, Russia 75–7, 93–7 This is Moscow Speaking 125, 126 Tolstoy, Leo 77, 90, 213 Trade Relations Agreement (1990), Russia–United States 161–2 tradition in copyright, Russia 107–9 transitional countries 301n30; see also post-socialist countries transitional law reform 65–6; v. longterm reform 155–6 transitional problems, Russia 207–10 translation, freedom of 80–1, 82, 85, 86, 87, 99–100, 170–1, 174, 194, 212, 282n81, 287n56, 319–20n65–6 Tretyakovsky Art Gallery, Moscow 202–3 Trial Begins, The 125 TRIPs Agreement 11–13, 162–6, 257n81, 304n59; acceptance of 59; accession to 100, 253–4n42; adoption of 9, 13–15; alternatives to 17–18; Article 9.1 42, 174; Article 9.2 34; compliance 173; and corporate interests 37–8; and democratization 68–70; and the developing world 15–16; economic rationale 38–9; improvement to standards 168; membership 170, 236, 249n8, 304n56; and moral rights 41, 42–3, 44, 45, 175, 176, 237, 239, 304–5n61; protection in 211; response to globalization 20 Tsarist, Russia: development of copyright 73–4; international copyright 85–7; moral rights 77–85, 280n42; overview 72–3; status of copyright 87–8; theories of copyright 75–7 Tunney, James 18 Turgenev, Ivan 12, 77, 86, 90, 101

350

Index

Turkey 167 Turner, J.E. 131, 140 Twentieth-Century Fox 105, 293n25 Tyomushkin, O.P. 135 Tyulubeva, I. 202 UK 18, 30–2, 315n18; development of copyright law 40–1, 73, 77; legislation 85; moral rights 44, 119, 165, 279n32 Union of Soviet Writers (VOUAP) 112–13, 178, 308n117 United Nations 12, 13 United States; influence of 51, 161–3, 207; infringement penalties 23, 37; membership of Berne Union 12, 161–3; model 18, 19, 36–7, 57, 77, 95; and moral rights 43–5, 105, 193, 208, 212, 236, 302n43; and new technologies 13–14, 30, 153, 193; piracy 11; Trade Representative’s (USTR) Office 160, 163, 166, 169, 173, 181, 302n47; and TRIPs 38–9 Universal Copyright Convention (UCC) 253n41, 270n16; membership 16, 52–3, 81, 87, 99, 100, 103, 104, 106, 120–1, 161, 162, 171, 212 Universal Declaration of Human Rights (1948) 214–15, 225 universally applicable rights 218–24 unpublished works 142–3, 193–4 use, right of 170–1, 193, 317n44 Visual Artists’ Rights Act (VARA), US 43, 266n78 Vlaminck, Maurice D. 199–200 von Lewinski, Silke 22 waivers 42, 266n74, 308n113, 315n19 Waldron, Jeremy 229 War and Peace 213 Watson, Alan 63 Western approach to reform 64

Western development models 18 Western European law 72–3, 76–7, 136–7 Western European Romanticism 213, 220, 297n76 Western law 29, 47–9, 54, 56–9, 69–70 Whistler case 199–200, 298n95 WIPO (World Intellectual Property Organization) 303n52; bloc-voting 252n29; founding of 12–13; influence of 161; rejuvenation of 20; relationship with EU 20–1; resurgence in Europe 16–24; technology issues 166; see also Copyright Treaty (WCT); Performances and Phonograms Treaty (WPPT) withdrawal, right of 143–4, 175–6, 180, 184, 196, 199–200, 291n123, 298n101, 313n44 Woodmansee, Martha 10 World Intellectual Property Organization (WIPO) see WIPO World Trade Organization (WTO) see WTO Wright, Peter 139, 296n72 WTO (World Trade Organization): creation of 9; Dispute Settlement Understanding 13, 14–15, 17, 24–5, 38–9, 42, 252–3n31, 253n39, 268–9n7; influence of 161; membership 100, 168, 170, 237, 256–7n68; relations with EU 20–1, 167–8; see also TRIPs Yevtushenko, Yevgeny 114, 206 Yumbulul v. Reserve Bank of Australia 213 Yunus, Muhammad 221 Zamyatin, Evgeny 112, 223 Zola, Emile 12

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