The Berne Treaty gives voice to the idea that art and the artist are not commodities to be treated like sausage. The Berne Treaty gives to the artist a specific standing to object to defacement of his/her work and it recognizes moral rights as distinct from economic rights. That distinction is at the heart of the debate.
To sign the treaty, a country must have a moral rights concept in its domestic law sufficiently clear to comply with the requirements of the treaty. The powerful economic interests that oppose moral rights for artists maintain that U.S. law is sufficient to qualify for Berne membership and no further recognition need be given to the moral rights of its artists. No film fantasy is as outlandish as that claim.
Under what law is the work of film artists, for instance, protected for today and for future generations? Where is the law that defines their moral rights?
What law gave Frank Capra moral rights to protest the colorization of "It's a Wonderful Life"?
What law gave John Huston legal support to seek redress for his disgust at a similar act of defacement performed on "The Maltese Falcon"?
What law protects those of our colleagues, living and dead, whose honor and reputations are offended by the electronic speeding up or slowing down of their films, or the capricious editing of scenes to fit the films into arbitrary time slots?
What law protects against the offense to honor and reputation of our foreign colleagues whose films undergo similar humiliations when they are exhibited in the United States? Sir David Lean has complained that nowhere in the world can "Dr. Zhivago" be seen as he originally made it.
Bertrand Tavernier, president of the French Society of Film Directors, has said that his first introduction to the United States was through American films of the '30s and '40s. He saw "Mr. Smith Goes to Washington" and applauded when Jimmy Stewart, as the idealistic young senator, declared that "Lost causes are the only kind worth fighting for." Tavernier saw and understood that perseverance and morality could persuade the Senate.
The last refuge of those who oppose strong moral rights legislation is the absurd contention that if the original negative is untouched, the "real" picture is somehow still intact. This is an argument made of nonsense. No one sees the original negative. Ever! They are made to be duplicated. It is in that duplication that they have their only life and their only audience.
Not a single original negative ever won an award, not a single original negative ever made someone laugh or cry.
There are those who say the marketplace enjoys this defacement, wants to see black-and-white films in pastel colors and will tolerate any disfigurement. Comments like those reveal a lack of understanding of the creative process. The creation of art is not a democratic process, and in the very tyranny of its defined vision lies its value to the nation. The public has no right to vote on whether a black-and-white film is to be colored anymore than it has the right to vote on how the scenes should be written, whether the next angle should be a close-up or a wide shot, whether music should enter or fade out or what kind it should be, or on any of the thousands of other artistic choices made by the artist in the turbulent process of creation. The public does have a right to accept or reject the result but not to participate in its creation.
If our adversaries think the current copyright law protects us, they are wrong. To comply with the law's warnings about misrepresentations, a film defacer would merely have to attach a disclaimer before the film is projected, stating that it has been colorized, or electronically shortened, that scenes have been edited, that the composition has been changed or other "improvements" have been added.
The current law does not protect the film, it does not protect the artists. It protects the consumer and does not in any way bestow on the United States the credentials that clearly are required by the Berne Treaty.
How did this magical notion arrive that something is there that isn't there? Powerful economic interests have gathered and in a massive and cynical act of self-service, they have invented it. They have performed this reverse intellectual somersault to rationalize their insensitive and untenable position; namely, that what is good for their special interest is good for the U.S.A.
A community of artists also lives, has a voice and contributes to the national health and welfare. We request that the Congress rebalance the competing interests of "show" and "business." We urge that Berne-implementing legislation contain our proposal that without the agreement and permission of the two artistic authors (the principal director and principal screen writer), no material alterations may be made in a film following its first, paid, public exhibition.
In the interest of fair play and honor among the civilized nations of the world, we ask the Senate to stand up and perform an act of political courage; to resist the economic powers that insist you serve them only and not us; to recognize the moral principle involved here as of greater importance to our national self-esteem than another buck on the bottom line; to grant that Berne requires moral rights in American law that do not now exist.