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RIDA 201 | 07-2004

Doctrine

Authors' rights and the spirit of the work

CARREAU, Caroline

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Literary, artistic and musical creation is usually a progression. It does not stop at, is not gauged by nor is even tied to the mere “reading”, “viewing” or “hearing” that it may be given one day by its audience. Though the principle behind this observation is clear, it can nevertheless be delicate to apply in practice. Indeed, it anticipates doubts or detours in the creative process that are too subtle for it to be possible to take them systematically into account. The risk then is of never being able to embrace fully an activity towards which the legislator has yet been sympathetic over the years. The balance that the protection of authors’ rights must also seek to achieve from this perspective rests precisely on an approach to intellectual creation that reflects certain particular characteristics of the “crafting” of an intellectual work. Indeed, it is clear, as its name suggests, that it can never be completely separated from the intellectual effort that generated it. The true difficulty then is to determine the point at which the author’s thought process both exists and is translated to a sufficient extent to be truly part of the work that he or she has created. The notion of the spirit of the work plays a fundamental role in this regard. The aim of this study is precisely to define its features and determine its implications.