COPYRIGHT: NEW LAW PROTECTING AUTHORS’ MORAL RIGHTS

The Copyright Amendment (Moral Rights) Act 2000, which amends the Copyright Act 1968, came into force on 21 December 2000. The Act introduces, for the first time, comprehensive moral rights protection in Australia for authors of literary, dramatic, musical and artistic works and film-makers (producers, directors and screenwriters). The legislation takes account of extensive consultation between the Government and stakeholders. It creates a moral rights regime that leads the common law world.

The Act expressly implements two moral rights that are separate and distinct from the economic rights in a literary, dramatic, musical or artistic work or film. They are the right of attribution of authorship – to be named in connection with one's work, and the right of integrity of authorship – the right of an author to object to treatment of a work that demeans their reputation. The Act also re-enacts, and extends to films, the right against false attribution of authorship of a work that was in old Part IX of the Copyright Act.

The right of integrity is primarily directed against mutilation or distortion of a work that is prejudicial to the author’s reputation. In the case of art works, the right also covers destruction and public exhibition that are prejudicial. Both that right and the right of attribution cover copyright uses of prejudicially altered or unattributed works and films, including reproduction, publication, public performance and distribution, and also making available on-line as from the commencement of the Copyright Amendment (Digital Agenda) Act 2000 which is 4 March 2001.

Concern that the legislation further burdens users of copyright material is misplaced. If the user of a work respects the right of a creator – that is, acknowledges, where reasonable, the authorship of the work and, where reasonable, avoids treatment that is prejudicial to the reputation of the author – then the user does not owe the author anything and does not need the author’s permission to make the intended use of the work. In contrast, a user of one of the copyright economic rights – such as the right to reproduce, to publish, to broadcast – must always have the copyright owner’s permission, express or implied, unless the use comes within a statutory exception.

To underline the personal nature of moral rights, under the legislation they remain with the author even though he or she may have transferred copyright in the work concerned to another person. After the author’s death, they are exercisable by the author’s legal personal representatives. Generally, moral rights will last as long as the copyright in the work concerned.

Liability for infringement of a moral right can be incurred by the person who does the infringing act or who authorises another to do it. The legislation gives the courts the discretion to choose from a wide range of remedies for infringement, including damages, ordering a public apology and reversal of a mistreatment of a work. If contemplating the grant of an injunction, a court must first look at ways of encouraging the parties to settle.

Importantly, non-attribution of a work or prejudicial mistreatment will not be an infringement of moral rights if the act or omission was reasonable. The legislation prescribes a number of matters to be considered in determining reasonableness, including the nature of the work, the purpose, manner and context of its use, relevant industry practice and whether it was made in the course of employment.

For instance, just as copyright works can range from high art to very mundane, functional materials, so do the obligations vary as to the degree of recognition and respect which users of works must accord the authors. These could range from full respect for the works of established authors to minimal or no recognition of the authorship of material such as some computer programs and written instructions on the operation of household appliances.

In cases where it would be inconvenient to give the required degree of recognition or respect, the legislation provides for obtaining the written consent of the author to non-compliance. There are very precise provisions about the permitted scope of a consent. Persons employed to create works can give a comprehensive consent in favour of their employer. The legislation expressly states that consent obtained under duress or by a false or misleading statement will not be valid.

The legislation recognises that moral rights present special difficulties for buildings and art works associated with them or sited in public places. It makes detailed provision for the architect or artist to be consulted before any change to or demolition of a building or removal of a public site-specific art work, without impinging on the right of the owner to deal with their property.

The legislation also recognises the different nature of films compared with literary, dramatic, musical and artistic works, consistently with the treatment of such subject matter elsewhere in the Copyright Act. While the right of integrity of authorship will apply to literary, dramatic, musical and artistic works made before 21 December 2000, it will apply only to films made after that date. Further, while that right in literary, dramatic musical and artistic works lasts as long as copyright, the legislation provides that in films it continues only until the death of the last surviving film-maker. There are other differences.

The amendments are a major advance for authors and film-makers in affording them recognition and respect in connection with their creations. However, experience in other countries suggests – and the Government expects – that enforcement of moral rights through the courts will be an exceptional occurrence. The main impact of the new legislation will, it is envisaged, be to build on good existing industry practice and, where necessary, to raise awareness in an educative way of the need to respect the creativity of authors and artists.

If you wish to speak to someone in the Attorney-General’s Department, please contact:

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