You Can't Take It With You When You Die... Or Can You?: A Comparative Study of Post-Mortem Moral Rights Statutes from Israel, France, and the United States

galia aharoni, tulane university law school

Abstract

Moral rights – including the rights to attribution, integrity, and dissemination – is a sticky, controversial subject even standing on its own. Questions concerning the duration of these rights seem to compound the issue even further: If moral rights protection stems from a desire to protect the author’s intrinsic relationship with the work, when should the protection stop? Upon his death? Upon the expiration of the work’s copyright? …Never? Such questions become even more pressing when a country – especially a self-acknowledged “developing” country such as Israel – enacts a moral rights law of its own, and when consequently no one yet knows where the moral chips, as it were, will fall.

This Article will analyze Israel’s new Moral Rights statute within its newly-passed Copyright Act in light of two opposing, but equally influential, role models: France (whose approach to moral rights and author protection was essentially the model for all moral rights laws to come), and the United States (who has been grudgingly dragged into creating even minimal moral rights laws, kicking and screaming the entire way). Emphasis will be placed on moral rights duration, and post-mortem rights, in particular. Section II of this article introduces the different legal approaches taken by the Berne Convention, France, and the United States, as well as both Israel’s old and new approaches to moral rights. Section III further analyzes and compares these various statutes. Finally, Section IV demonstrates that Israel’s new Copyright Act – although more temperate and reasonable than the extreme measures taken by countries such as France – is still highly flawed. Extending both the right of attribution and the right of integrity after the author’s death threatens a loss of a healthy public domain and presents problems from the country’s own future culture and economy. In addition, it also encourages frivolous and self-interested lawsuits, unfairly takes away property rights from rightful owners, and may actually even encourage the further distortion of the artist’s original message and meaning in itself. Israel, therefore, should err on the side of protecting the public domain by minimizing post-mortem moral rights protection.