Experimenting with EU Moral Rights Harmonisation and Works of Visual Arts: Dream or Nightmare?

Moral rights have always faced challenges in copyright law. Some jurisdictions protect them fiercely, while others oppose the frailest safeguard to find a compromise with the international mandate. In the EU, moral rights are not harmonised, nor the European legislator has provided any explicit rules for their protection. Even so, the possibility of harmonising moral rights has never been barred, neither have there been attempts to explore such an opportunity. The conventional emphasis on the different approaches to moral rights between civil law and common law countries, often to justify the reluctance towards harmonisation, is barely acceptable. The implications of the digital and post-digital revolutions prompted new attention to moral rights and elicited by copyright exceptions whose harmonisation has always been desirable. Nevertheless, harmonisation should not come at all costs. It seems acceptable to envision a flexible approach exploring a focused application of moral rights to a single subject matter, i.e. works of visual arts, which the EU legislator has already addressed via Directive 2001/84/EC (droit de suite). Such an experiment looks specifically at the peculiar US coverage of moral rights under the Visual Artists Rights Act (VARA) but does not rule out a more comprehensive application.