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13/12/2016
Moral Rights to integrity: from architectural works to “your silence makes you more interesting…”
Por:  Manuel Antonio Rodríguez

The peculiar nature that informs, maintains and surrounds Copyright is constantly giving rise to new situations and cases. Many of them are complex and dynamic and may lead to place the scope of the regulations protecting authors and other holders in direct confrontation with general rights that have an influence in the social group. As such regulations could also be in line with the interest of one single person. 

And it is not that we are making reference to the permanent debate of Copyright and the Right to Culture, including the related topic of cost, value or consideration inherent in the use of intellectual works, products or productions protected by Copyright. No. We focus the comments of this simple reflection on the multiple, varied, prolific and even clever situations derived from the infringement of moral rights. 

After the protection granted to the author of an intellectual work of being recognized as such (authorship), right that seeks to prevent the different modalities of plagiarism, the second moral right most violated, in some cases in an extremely serious manner, is the right to integrity of the work, of which the exercise attempts to prevent changes, modifications, suppressions or alterations of a work. 

Having a long-standing regulatory basis [1] and being regulated in most legislations, whether specifically [2] or in a more generic manner [3], it seemed that it is assumed that the legal consequences derived from the infractions occurring in these matters would be of simple and relatively speedy application and jurisdictional correction. This statement is very far from being true.

Let’s consider the architectural work and see some legal decisions that involve the integrity right being affected: 

It is convenient to be absolutely clear about the concept and scope of the architectural work and differentiate it, for instance, from the work of art. There are cases in which the violation is caused by removal, without consultation, of any element being part of the work, as it was the non-consulted removal of a logotype of a bank entity that was part of an artistic wall (erroneously considered an architectural work), leaving in its place a huge hole, roughly finished with cement, as indicated at that time by the plaintiff [4].

There are situations in which the architectural work, remembering what occurred with the “Monument to Fishermen” (Monumento al Pescador, in Spanish) from the renowned Spanish author of Arcadi Blasco, is subject to unjustifiable acts of aggression that decontextualize and denature it, as appreciated and decided in the Provincial Hearing of Alicante (Spain) by sentencing the City Council of El Campello [5].

An emblematic and very widely analyzed case is the architectural work of the Zubi Zuri Bridge located in Spain, since the alleged damage to integrity was based on the fact that subsequently a footbridge was built, which that also provided a public service of general interest. According to the statement of the author of the bridge drawings, the renowned Spanish architect Santiago Calatrava: “The Zubi Zuri is no longer a work that finishes by itself. Now it has an addition that alters its unquestionable personality […]. Another object that has nothing to do with the pre-existing work has been added. It was a finished and light bridge that solved the certainly complex problems of support in an imperceptible manner, without the density with which many other bridges of Bilbao have tackled the communication between both sides. […] Now it is evident, however, that it has an extension of which the support should be described as striking: some concrete supports of considerable diameter that hold the footbridge are the continuation of a bridge in which the supports can barely be noticed” [6].

Although the decision was favorable for Calatrava [7], not all of his claims were granted causing a heated debate about weighting or not of Copyright over the notion of buildings and real estate for public service (hospital, schools, theaters, among others) which brought to my mind the position of some authors who state that the author must accept the modifications made, provided that the essence of the work is kept, a point in which we totally differ, since it would be possible to incorporate modifications not planned in the functions of the original drawings [8].

Similarly, as we make reference to the moral right to integrity of the architectural work, such power is also present in other genres of works, even when the right is affected by a fact that for many could be insignificant. In a literary work for recreation, the text in the expressive manner conceived by the author should not be modified in any manner without the express and written consent of the author, even though the text may contain grammatical errors. Let’s take the following phrase as an example: “Your love profoundered in my heart”. Profoundered is not a grammatical error; it is just an invented word mixing the verb founder and the adverb profoundly, which gives it an unquestionable originality. The editor or proofreader who changes such word commits an infraction. 

It is the same case with the phrase “your silence makes you more interesting” if question marks, exclamation marks or ellipsis are added. Its emphasis and sense change dramatically since it may be assumed, in accordance with the expressive context before or after the phrase, as criticism, irony, unease or lack of interest. These two examples, in spite of not having yet a judicial resolution, show that for Copyright the grounds for a work to be protected are irrelevant, but it makes everything conditional on originality, a simple word that sometimes generates pragma-dialectics. It is something like love.

 

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[1] Berne Convention for Protection of Literary and Artistic Works for protection of literary or artistic works. Article 6, bis 1; “Moral Rights: […] 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 honor or reputation.” There should be no doubt that this protection corresponds not only to the drawings, but to the building. It suffices thus to read Article 5, c, ii, of the aforementioned Convention: “[…] when these are works of architecture erected in a country of the Union or other artistic works incorporated in a building or other structure located in a country of the Union, the country of origin shall be that country”.
[2] Intellectual Property Law of Spain: Article 14. “Contents and Characteristics of Moral Rights. The following inalienable rights that cannot be waived correspond to the author: […] 4. Demand respect for integrity of the work and prevent any deformation, modification, alteration or attempt against it involving damage to his lawful interests or to the detriment of his reputation.”
[3] Law on Copyright of the Bolivarian Republic of Venezuela. Article 20.- “the author has, even before the purchaser of the material object of the work, the right to forbid any modification thereto that may put at risk his honor or reputation. The author of architectural works may not oppose to the modifications that were necessary during or after construction. However, if the work has an artistic nature, the author shall have a privilege for study and conduction thereof […]
[4] http://caracas.tsj.gob.ve/decisiones/2006/noviembre/2122-21-01474-.html. “[…] even though the bank entrusted the work to the artist and paid some fees for elaboration thereof, it included initially the logotype representing him and indicating that it belongs to such author, but in any case nothing authorized removal thereof. It should have been established the situation in which the logotype may be altered in the future or change dramatically at some point as not to include it or, in any case, agree with the artist upon what to do in the event that it occurred or at least obtain the authorization of the artist. It was disproved in the course of the proceedings with the declaration of expert witnesses that the concrete wall was an architectural work, but that it was and remains a work of art. Even in the case, not proven, that the removed logotype was a trademark belonging to the sued bank entity, case in which it would have been able to do whatever it deemed fit, of course, without affecting the copyright of the artist of the work, this is precisely its limit, which was not respected (the right to integrity of the work of art) and that caused a damage since one of the elements of the original work was missing, the work is aesthetically affected, and the author is morally affected. The latter is disturbed by the actions without consultation, for which it claims remedy by this legal action. Therefore, the claim is declared admissible and it is so decided. 
[5] The judgment ordered returning to the sea the “Monument to Fishermen” after a coastline advance caused that it was surrounded by sand instead of water. The Judge dismissed the allegation that the authority did not comply with its obligation of keeping the monument in the environment for which it was conceived, to wit water, with its artistic singularity. The "Monument to Fishermen" is composed of two parts: a bow (a jetty emerging from the sea and currently located in the middle of beach sand, which shall be corrected), and a rudder, element originally located in land.
[6] FJ 7º SJMER.
[7] See: http://www.cerlalc.org/derechoenlinea/dar/?mode=archivo&id=1421
[8] Common sense, more than regulations, shall make the author accept the necessary modifications, such as incorporating ramps where there were stairs as to facilitate movement of handicapped people; adding emergency exits to observe the new Municipal Ordinances, but the owner of the property shall ensure that the author is given first the right of designing these mandatory and necessary modifications.

 

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