A Work of Art is not Just a Barrel of Pork1: The Relationship between Private Property Rights, Moral Rights Doctrine and the Preservation of Cultural Heritage

摘要

This article focuses on tensions between ius abutendi (the right to abuse one's property), the public interest in conserving artworks, and moral rights doctrine's unsettled position on the artist's right to object to destruction of his work. Building upon Joseph Sax's impassioned plea in Playing Darts with a Rembrandt, it is argued that an exception to absolute property rights should be recognised in favour of cultural objects. This article expands on this, arguing that as artworks belong to the common good, their owners should care for them, for society's benefit and future generations. Essentially, art is properly subject to stewardship rather than narrow liberal conceptions of property rights, which overemphasise the rights and entitlements of owners. If this stance is reasonable and acceptable, in recognition of the value of cultural items to society, it follows that moral rights doctrine's current ambivalence towards the existence of a right to object to destruction is unsustainable.