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This Electronic Thesis Or Dissertation Has Been Downloaded from Explore Bristol Research This electronic thesis or dissertation has been downloaded from Explore Bristol Research, http://research-information.bristol.ac.uk Author: Cheng-Davies, Tania Title: Avoiding another Bonfire of the Vanities the Right to Object to Destruction under Moral Rights Doctrine General rights Access to the thesis is subject to the Creative Commons Attribution - NonCommercial-No Derivatives 4.0 International Public License. A copy of this may be found at https://creativecommons.org/licenses/by-nc-nd/4.0/legalcode This license sets out your rights and the restrictions that apply to your access to the thesis so it is important you read this before proceeding. Take down policy Some pages of this thesis may have been removed for copyright restrictions prior to having it been deposited in Explore Bristol Research. However, if you have discovered material within the thesis that you consider to be unlawful e.g. breaches of copyright (either yours or that of a third party) or any other law, including but not limited to those relating to patent, trademark, confidentiality, data protection, obscenity, defamation, libel, then please contact [email protected] and include the following information in your message: •Your contact details •Bibliographic details for the item, including a URL •An outline nature of the complaint Your claim will be investigated and, where appropriate, the item in question will be removed from public view as soon as possible. Avoiding another Bonfire of the Vanities: the Right to Object to Destruction under Moral Rights Doctrine Tania Su Li Cheng-Davies A dissertation submitted to the University of Bristol in accordance with the requirements for award of the degree of PhD in the Faculty of Social Sciences and Law, University of Bristol Law School, March 2018 91, 583words 1 ABSTRACT At the heart of the research underpinning this thesis is the question of why moral rights doctrine in common law jurisdictions ignores the possibility of creators having a legitimate claim to protection when faced with the destruction of their creative works. It is a question rarely examined or analysed in depth by the courts or legal commentators. The thesis posits that this lacuna in the doctrine undermines its threefold role as protector of a creator’s personality rights, a buttress against the erosion of cultural heritage, and a counterbalance to the overtly utilitarian and commercial nature of the copyright regime in common law countries. The thesis also critically examines the standard arguments raised against the recognition of such a right for creators. In the process, the research engages with a variety of sources from without the common law, namely, the ontology of art, the Roman concept of Iniuria, and anthropological studies on the concept of honour: sources not previously examined and applied in the context of this question. The research question is examined in the context of the United Kingdom’s utilitarian copyright regime, whose weak moral rights doctrine arguably undermines the nation’s artistic and cultural heritage. Lessons are sought from an appraisal of the cultural settings and moral rights regimes in other common law countries: Singapore, US, Australia and India. The underlying interdisciplinary and comparative law methods employed in the research ultimately aim to construct a case for the United Kingdom to embrace a widening of its moral rights, allowing its creators to object to the destruction of their works. ii ACKNOWLEDGEMENTS It seems a lifetime since I started on the PhD journey. Along the way, I have received much generous help and support from my supervisors, colleagues and family, and I cannot thank them all enough. I have had the fortune of having three leading IP scholars as supervisors during my time at Bristol. I benefitted much from the invaluable advice and guidance given me by Professor Aurora Plomer and Dr Sujitha Subramaniam, for which I will always be grateful. My most heartfelt thanks must go to my primary supervisor, Professor Andrew Charlesworth, who supervised my work from start to completion, for his unstinting support and advice, maddening attention to detail, his great sense of humour, and for pushing me always to raise my game. He has, over time, managed to (just!) cure me of my tendency to indulge in ‘purple prose’ and my penchant for archaic terminology. Apart from the aforementioned (sorry for another archaic term, Andrew!) there are several other lovely people at Bristol to whom I must give acknowledgement and thanks for their help, support and guidance. Professor Tony Prosser and Ms Nina Boeger, for their critical eye and advice during my upgrade viva. Professor Joanne Conaghan, for believing in me and appointing me to a lectureship at this wonderful university. Professor Antonia Layard, for always lending a sympathetic ear and for all her sagely advice over coffee at the Boston Tea Party café, which have certainly helped to keep me sane throughout. And Mrs Stephanie Dimberline, for helping me through all the administrative headaches throughout the process. I also wish to thank the Modern Law Review for the award of a two-year scholarship in support of my PhD studies. Above all, I thank my family. My parents, Cheng Poh Yuen and Tjong Njie Tjhoen, for having encouraged my voracious reading habit and obsessive love for music and the arts. My brother, Dr Kenny Cheng, for always being so generous and thoughtful, even though I was as a child, and still am, the most annoying little sister. My two wonderful children, Tirion and Geraint for their unconditional love, infectious laughter, constant stream of tricks and jokes – they inspire me always. And, my husband Col, for his belief in me, dedication, incredible patience and the many mugs of hot, milky, sugary builder’s tea which would appear magically on my desk – thanks from the bottom of my heart. iii Author’s declaration I declare that the work in this dissertation was carried out in accordance with the requirements of the University’s Regulations and Code of Practice for Research Degree Programmes and that it has not been submitted for any other academic award. Except where indicated by specific reference in the text, the work is the candidate’s own work. Work done in collaboration with, or with the assistance of, others, is indicated as such. Any views expressed in the dissertation are those of the author. SIGNED: Tania Cheng-Davies DATE: 19 October 2018 iv Table of Contents Part I: Research Context ................................................................................................................. 1 Chapter 1 - Introduction ............................................................................................................. 1 1. Background ........................................................................................................................ 1 2. Aims of Thesis ................................................................................................................... 3 3. Structure of Thesis ............................................................................................................. 5 4. Research Questions ............................................................................................................ 9 5. Limitation of Query to fine art ............................................................................................ 9 6. Methodology .................................................................................................................... 10 7. Summary and Contribution of Research........................................................................ 14 Chapter 2 – Legal Context: Aims and Roles of Moral Rights and Copyright Law ................. 16 1. Introduction ..................................................................................................................... 16 2. Background and history of Copyright Law and Moral Rights Doctrine in the UK – a search for the foundation of moral rights in the UK ............................................................................. 18 3. The Aims of Copyright Law and Moral Rights Doctrine ................................................... 28 a. Aims of Common Law Copyright and Civil Law Copyright ......................................... 28 b. The public interest in UK copyright regime .................................................................. 30 4. The public interest in the encouragement of learning: the role of copyright ....................... 33 a. What do creations mean to their creators? ..................................................................... 34 b. What drives the creative process? ................................................................................. 36 5. The public interest in the encouragement of learning: the role of moral rights ................... 40 6. Conclusion ....................................................................................................................... 43 Chapter 3 – Social Context: The Destruction of Art and its Impact on Art and Society ........ 45 1. Introduction ..................................................................................................................... 45 2. Examples of Destruction .................................................................................................. 46 a. Mass Destruction of Art: The Bonfire of the Vanities, 1497 and 1498; Nazi Bonfires, 30 March 1939 and 27 July 1942 .............................................................................................
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