Australia: The New Moral Rights Legislation

Co-written by Jenny Markovic

The Copyright Amendment (Moral Rights) Act 2000 (Cth) (‘the Act’) came into force on 21 December 2000 after significant amendments were made to the original Bill during 2000. The Act amends the Copyright Act 1968 (Cth) and introduces comprehensive moral rights protection in Australia for both authors of literary, dramatic, musical and artistic works and for film-makers (producers, directors and screenwriters).

Previously, authors received limited moral rights protection under the Copyright Act 1968 covering false attribution in the content of literary, artistic, dramatic and musical works. There was, however, no protection for cinematograph films and the provisions did not include a positive obligation of attribution.

‘Moral rights’ seek to protect the creator’s honour and reputation. Moral rights exist because in some sense creative material is an emanation or extension of the creator’s personality, and what is done with his or her material may affect his or her standing and reputation.

‘Economic rights’ in a work relate to the creator’s right to reproduce, assign or license the work. A creator is not able to assign his or her moral rights, even where the economic rights in the work have been assigned or sold.

The Australian Copyright Council has noted that under the Act moral rights are attached to the following ‘works’:

• Written material (novels, screenplays, poems, song lyrics and journal articles);
• Artistic works (paintings, drawings, architecture, sculpture, craft work, photographs, maps and plans);
• Musical works;
• Dramatic works (ballets, plays, screenplays and mime);
• Computer programs;
• Cinematograph films (such as feature films, documentaries, music videos, television programs and television commercials).

Under the Act, creators are entitled to take legal action in certain circumstances which include where:

• they are not attributed or credited for their work (the right of attribution);
• their work is falsely attributed to someone else (the right against false attribution); or
• their work is treated in a derogatory way (the right of integrity) for example, by distorting or modifying it.

The right of attribution is infringed if, after 21 December 2000, someone does an act in respect of a work without identifying the author in a clear and prominent way. Such acts include the acts usually referred to as economic rights of copyright such as reproduction, publication, exhibiting and transmitting.

Infringement of the right against false attribution occurs in a number of circumstances including:

• the attributor applies a person’s name to a work or its reproduction which falsely implies that the person is the author of the work, or that the work is an adaptation of the person’s work;
• a person commercially deals with a work (including offering to sell, hire or exhibit in public) which has an author’s name on it, and the person knows that the named author is not the author of the work;
• a person commercially deals with an altered work as if it were an unaltered work where that person has knowledge that it is not the unaltered work of the author (except where the effect of the alteration is insubstantial, or is required by law, or is necessary to avoid a breach of the law).

A person infringes the right of integrity if the person, after 21 December 2000, subjects an author’s work to derogatory treatment. ‘Derogatory treatment’ is broadly defined and includes ‘a material distortion of, or the destruction or mutilation of, or a material alteration to the work itself that is prejudicial to the author’s honour or reputation’: Copyright Act 1968 ss 195AJ-195AL. It is noteworthy that neither ‘honour’ nor ‘reputation’ is defined in the Act. Examples of this type of conduct may include editing a novel or removing sections of a film.

The right of attribution and the right of integrity will not be infringed if the act or omission was reasonable.

The Act 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.

It is not an infringement of the right of integrity to do something in good faith to restore or preserve a work.

Moral rights will not be infringed where the creator has provided full and informed consent to an otherwise infringing act. This consent, however, must be in writing and conform to further requirements under the Act.

Liability for infringement of moral rights can be incurred by the person who does the infringing act or who authorises another to do it.

The Act gives the courts the discretion to choose from a wide range of remedies for infringement, including injunction, damages, ordering a public apology, and reversal of a mistreatment of a work.

For literary, dramatic, musical and artistic works, moral rights will last for the life of the author plus 50 years. The right of integrity in authorship in relation to films, however, will last only until the creator’s death.

The Attorney-General’s Department has noted that, while the above amendments are a major advance for authors and film-makers in affording them recognition and respect in connection with their creations, experience in other countries suggests that enforcement of moral rights through the courts will be an exceptional occurrence. Rather, it has been envisaged that the main impact of the Act will be to build on good existing industry practice and, where necessary, to raise awareness of the need to respect the creativity of authors and artists.

Clearly, however, the Act is more broad reaching. It is important in agreements with consultants and independent contractors (particularly in ‘creative’ fields) to ensure that moral rights are addressed to avoid difficulties which may arise when material prepared or provided under contract is altered for any reason. Further, employers and businesses must be aware that, even where an employer owns copyright, the employee still holds the moral rights, unless a moral rights consent in writing has been obtained.