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

No. 3] Are Patents and Copyrights MorallyJustified? 843
Arc” (as was recently done in New York), all constitute damage
to the personality of the creator.
In fact, the relationship between creator and creation is so
intimate that when the personality of the former changes, so
too can the treatment of the latter. Under article 32 of the
French 1957 Law, for example: “Notwithstanding the transfer
of his right of exploitation, the author, even after the publication
of his work, enjoys a right of modification or withdrawal
vis-a-vis his transferee.”° 5
The concept ofpersonal rights has also been extended to encompass
the so-called droit tie suite, or inalienable resale royalty
rights. According to this idea, a part ofFrench law’° 6 and relatively
recently adopted into law by several American states, a
percentage of the resale profits beyond a certain level must be
given to the original creator.
Objections to Personality-Based Intellectual Property Theories
At theirfoundation, personality-based theories ofintellectual
property suffer from a confusion about the ontological status of
ideal objects and their relationship to their creators. If, as
Hegel insists, “[a] person must translate his freedom into an
external sphere in order to exist as Idea,” 107 this does not
mean that this “translation” is constitutive of the person ‘himself,
nor that the artifacts resulting from this translation become
inextricably bound up with the person. This is especially
obvious in the case ofsuch artifacts as a puffofsmoke, a tracing
in the sand, or a knot in a piece of rope. The smoke may dissipate;
the tracing may be washed away by the tide; the knot may
come undone; but in none of these cases is the personality of
the creator diminished,
Most claims on behalf of personality-based rights are confined
to “artistic” creations. Thus, Congressman Edward J.
Markey (D-MA) argues that: “A work of art is not a utilitarian
object, like a toaster; it is a creative work, like a song, a poem,
108. C. civ. art. 548, Code penal (C.pCn.] arts. 425.429, art. 84. Damich, however,
argues that, due to difficultiespresented by practical applicationand conflict with other
rights, the right of retraction is “a ‘dead letter’ even in French law.” Damich, supra
note 100, at 25.
106. C. civ. art. 548, Code penal [C.pCn.] arts. 425-429 (“The authors of graphic or
plastic works of arthave, notwithstanding any transfer ofthe original work, an inalienable
right to participate in the product of all sales of this work made at auction or
throughthe intermediation of dealers
107. G. HEGEL, .supra note 78, at 40.
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