Section 80 stipulates that an author may object to the derogatory treatment of her work. The section then goes on to define treatment as 'any addition, alteration or modification'. Unless something amounts to a 'treatment' in the first place, one cannot go into the question of whether such treatment is derogatory in the fist place (Cornish). When a work is destroyed, it cannot be said that there has been an addition or alteration of some sort to the work-the work itself ceases to exist.
Therefore on a straightforward and perhaps sensible way of reading section 80, the section cannot cover instances where the work itself is destroyed. One may argue that a 'purposive construction' of the statute in accordance with the Berne Convention (hereinafter referred to as 'Convention') may yield an interpretation in favour of the right to prevent destruction.
After all, section 80 was drafted in order to comply with the obligations spelt out in the Convention. However a closer look at this aspect would reveal quite the opposite. 2. The Berne Convention The moral rights language of the Convention is wider than the CDPA and includes a right not just against any modification, distortion or mutilation but also against any 'derogatory action' that is 'prejudicial to the honour or reputation' of the author.
One could therefore argue that the term 'any other derogatory action' would cover an instance where the work itself is destroyed. This argument however does not stand good ground when one considers the legislative history of the Convention. Sam Ricketson points out in his classic treatise on the Berne Convention that there was an express rejection of the proposal by the civil law countries to mandate the inclusion of a RPD as one of the moral rights.
Rather, in one of the voeux adopted at the end of the Conference, the Convention left it to member countries to provide for such an additional right, if they so desired-a fairly obvious extension of the principle that this international convention was a minimum standards one and did not impact upon a member's right to articulate higher standards within its won national regime. Even otherwise, on a straightforward reading of the Convention, one may have problems inferring such an additional right.
For one, assuming that such a right to object could be said to fall within 'any derogatory action', it is clear that this by itself would not suffice. One has also to show that the said action is 'prejudicial to the honour or reputation of the artist', a phrase that is to be interpreted objectively (Ricketson). Here again, there was an express rejection by common law countries of the proposal that protection should be accorded to any action that violated "moral interests"-finally, as a compromise, the term "prejudicial to honour or reputation" was used.
This being an objective term, it is arguable that although an artist may consider the destruction of her work a personal affront, it may nevertheless not cause any loss of reputation or honour in the eyes of the general public, as the work itself ceases to exist. Had the term "moral interests" been used, a term that is a highly subjective one, one could perhaps have argued in favour of reading a RPD into the Convention regime.
