Australia: Moral Rights and Government Agencies

Intellectual Property Update
Last Updated: 21 March 2010
Article by Anthony Willis and Caroline Atkins

This Intellectual Property Update aims to provide you with a basic understanding of moral rights in order to help you ensure that your agency does not inadvertently infringe a person's moral rights.

What are moral rights?

Moral rights refer to a collection of rights that are conferred on the creators of copyright works (books, paintings, etc) and films by the Copyright Act 1968. These rights are:

  • The right of a creator to be clearly and prominently identified as the creator of the work - the right of attribution.
  • The right of a creator not to have authorship of a work falsely attributed to another person - the right against false attribution.
  • The right of a creator to object to 'derogatory treatment' - the right of integrity.

Derogatory treatment means doing anything in relation to the work which prejudices the creator's 'honour or reputation'.

Example:

An agency commissions a painting to use on the cover of its annual report. The agency owns the copyright in the painting. However, the agency may infringe the artist's moral rights if it includes a copy of half of the painting on its website, or uses copies of the painting on promotional coffee mugs, in a manner that prejudices the artist's reputation.

Moral rights are automatic. The creator of the work does not need to apply for, or register, their moral rights.

Reasonableness

The Copyright Act provides a defence of reasonableness such that:

  • There is no infringement of the right of attribution if it was reasonable in the particular circumstances not to identify the creator. (For example, failing to give attribution to the creator of the work may be determined to be reasonable if after significant investigation the creator of the work could not be identified).
  • There is no infringement of the right of integrity if the derogatory treatment or other action was reasonable. (For example, manipulating a work may be determined to be reasonable if it is accepted practice in the relevant industry).

There is no defence of reasonableness for false attribution.

Duration of moral rights

The right of integrity in a work lasts until the death of the creator of the work. The other moral rights (the right of attribution and the right against false attribution) continue in force until copyright in the work expires.

The relationship with copyright

Moral rights and copyright are different things. When a person creates a work, a book for example, this results in three distinct elements:

  • the physical item (ie copies of the book).
  • the copyright in the book - also known as the 'economic right' (the rights to do certain things with the work such as to make a reproduction or adaptation of it).
  • the moral rights.

These three elements can all be 'owned' by different people. For example, it may be that the physical item is owned by the person who purchased the book at the bookstore, the copyright is owned by the publisher (having purchased the copyright from the author) and the moral rights are 'owned' by the author.

Non-assignable

Unlike copyright, moral rights are only conferred on individuals and are not able to be transferred. Therefore, a party that purchases or licenses the copyright in a work from the creator of the work must still ensure that they do not use the work in a way that would infringe the creator's moral rights.

Example:

One right of a copyright owner is to 'make an adaption of the work'. However, in making that adaption the copyright owner will need to ensure that they do not infringe the creator's moral right of integrity by making an adaption that is a 'derogatory treatment' of the work.

Moral rights consents

Although moral rights cannot be transferred, the creator of a copyright work can give a party a written consent to do an act that would otherwise infringe the creator's moral rights.

It has become very common to request moral rights consents from potential creators of copyright works. Typically an agreement to transfer copyright in a work will be accompanied by or include a moral rights consent in relation to that work.

It is often advisable for an agency to seek a moral rights consent even if it intends to clearly give attribution to the creator of the work and has no intention to deal with the work in a derogatory manner. This is because the moral rights consent acts as 'backstop protection', in case an employee of the agency inadvertently infringes moral rights.

What can my agency do?

Agencies must either:

  • Ensure that they do not infringe the creator's moral rights in the work.
  • Obtain from the creator of the work a freely-given written consent to the doing of the acts that would otherwise infringe the moral rights.

Here are some practical tips:

  • Consider obtaining moral rights consents from employees by including a moral rights consent in your agency's employment agreements. Many of the copyright works that an agency deals with are created by employees.
  • Consider obtaining moral rights consents from nonemployees by inserting in your agency's template contracts a requirement for:
    • contractors who are individuals (for example, sole traders or volunteers) to give moral rights consents; and
    • contractors who are not individuals to obtain moral rights consents from their staff and independent contractors who may create copyright works.
  • A 'blanket' consent which is acceptable for employees may not be effective for non-employees. Ensure that consents obtained from non-employees (such as contractor personnel, commissioned artists, etc) clearly identify:
    • the specific work(s) to which the consent relates (for example, photos of Canberra skyline taken by Fred Smith on 1 January 2005); and
    • the specific acts or omissions to which the creator is giving their consent (for example, to not attribute the creator in the March 2010 edition of My Agency Magazine).
  • Ensure that your agency's intellectual property register records the creator of the work and whether or not they have given a moral rights consent.
  • Ensure that your agency's IP policy clearly sets outs the agency's standard position on moral rights.
  • Ensure that staff at you agency have been given adequate moral rights training (distributing this Intellectual Property Bulletin is a good starting point, although a more extensive face-to-face IP training session would be beneficial for staff who regularly deal with copyright works).
  • When giving attribution to a creator, determine if the creator has specified a particular way in which they wish to be identified. If so, identify them in that way.

Remedies

If a government agency infringes a creator's moral rights it could lead to one or more of the following:

  • A court declaration that a moral right of the creator has been infringed.
  • A court order to pay financial compensation to the creator (an award of damages).
  • A court order to stop the infringing activity (an injunction).
  • A court order to publicly apologise for the infringement.
  • A negative public reaction or political embarrassment.

Case Study – Meskenas

In the Australian case of Meskenas v ACP Publishing Pty Ltd (2006) 70 IPR 172, damages were awarded for an infringement of moral rights.

ACP is the publisher of the magazine Woman's Day. It published an issue of Woman's Day that included a photograph of Princess Mary standing in front of a portrait of the late Dr Victor Chang. The portrait was painted by Mr Meskenas, but the caption in Woman's Day incorrectly attributed the portrait to another artist.

Copyright in the painting was owned by the estate of Dr Chang, who had commissioned the painting and performed a triple bypass operation for Mr Meskenas as consideration. Therefore, Mr Meskenas' only redress under the Copyright Act was for infringement of his moral rights. ACP was found to have infringed Mr Meskenas' moral rights and was ordered to pay damages of $1100 for wrongful attribution (infringement or moral rights) and aggravated damages of $8000 for the additional hurt caused by its failure to publish an apology and correction in a timely manner once made aware of its error.


History

In Australia, protection of moral rights came into force on 21 December 2000 with the enactment of the Copyright Amendment (Moral Rights) Act 2000 (Cth).

The Act was introduced to ensure greater respect for the integrity of creative endeavour and to give full and proper effect to Australia's obligations under the Berne Convention for the Protection of Literary and Artistic Works - the main international convention on copyright.


© DLA Phillips Fox

DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit www.dlaphillipsfox.com

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions