Are Patents and Copyrights Morally Justified? - Tom G. Palmer

No. 3] Are Patents and Copyrights Morally Justified? 841
not be restricted by copyright: “He [an editor] represents himself,
not as that author as ifhe were speaking through him, but
as another. Translation into another language is also not infringement,
for it is not the very speech ofthe author although
the thoughts may be the same.” 94
Like Kant, Hegel argues that artistic reproductions are “so
peculiarly the property of the individual artist that a copy of a
work of art is essentially a product of the copyist’s own mental
and technical ability,” while the reproduction ofliterary works
or of inventions “is of a mechanical kind.” 95 Hegel declared
further that “this power to reproduce has a special character,
viz, it is that in virtue ofwhich the thing is not merely a possession
but a capital asset.” 96 The right of reproduction of inventions
or literary works derives from their nature as capital
assets, and not merepossessions. They yield an income stream,
the diminution of which substantially diminishes the value of
the capital.
The theories of personal rights and of personality set forth
by Kant and Hegel have been extended in the last hundred
years or so to embrace a range ofrights to artistic productions
far wider than they envisioned. Indeed, these alleged rights are
not, like Anglo-American copyrights, fully alienable, but are, as
the French 1957 Law on Artistic and Literary Property 97 declares,
“perpetual, inalienable, and imprescriptible.” 98 Substantial
efforts have been made to import this notion into
American law, much of them occasioned by the introduction of
the technique of “colorizing” films originally produced in
black-and-white. 99
As developed under French law, four such personal rights
are retained by artists: the right of disclosure, the right of attribution,
the right of integrity, and the right of retraction.’ 0 °
94. Id.
95. G. HEGEL, supra note 78, at 54.
96. Id. at 55.
97. C. civ. art. 548, Code penal (C.pCn.I arts. 425.429 (“Lawof March 11, 1957 on
literaryand artistic property”); see also Loi du 11 mars 1957 cur Ia propriété littéraire et
artistique, 1957 Journal Officiel de Ia Republique Française U.O.1 2728, 1957 Recuetl
Dailoz Legislation [D.L.] 102 (for amendments and cases interpreting the statute).
98. Sd.
99. For an overview of the proposed legislation, as well as a discussion of the pros
and cons of these proposals, see Donnelly, Artist’s Rights and copyrights, i CoNG. QUAR-
TERLY’s RES. REP. 245 (1988); see also Wash. Post, May 22, 1988, at Fl, col. I.
100. See Damich, The Right of Personality: A Common-Law Basis for the Protection of the
Moral Rights ofAuthors, 23 GA. L. REV. 1, ~6-25(1988).