Page tools

Bills Digest No. 99 1999-2000 Copyright Amendment (Moral Rights) Bill 1999

Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details

Passage History

Copyright Amendment (Moral Rights) Bill 1999

Date Introduced: 8 December 1999

House: House of Representatives

Portfolio: Attorney-General

Commencement: In general, upon Royal Assent

Purpose

The Copyright Amendment (Moral Rights) Bill 1999 amends the Copyright Act 1968 (the Copyright Act) to provide protection for the moral rights of authors, composers, play-wrights, artists and film writers, directors and producers.

Background

Moral Rights

Moral rights are a separate category of rights to those currently recognised in the Copyright Act. The existing bundle of rights-the right to reproduce, to perform and so on-are all economic rights in that they protect the property interests of the person who created the material.

Moral rights seek to protect something else: they are concerned with 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.⁽¹⁾ There are four basic types of moral rights:

attribution-the right to be identified as the creator of material
integrity-the right to object to derogatory acts perpetrated on material that are prejudicial to the creator's honour and reputation, such as its distortion, mutilation or unauthorised modification
disclosure-the right to determine if and when material is made public
withdrawal-the right to withdraw material from the public.

Protection of Moral Rights

International obligations

The moral rights of attribution and integrity have long been recognised in European jurisdictions, and they are provided in article 6 bis of the 1928 Berne Convention for the Protection of Literary and Artistic Works. Australia is presently bound by the 1971 Paris Revision of the Convention.⁽²⁾ As the Attorney-General noted in his Second Reading Speech,

Moral rights are also the subject of long-standing international obligations for Australia.⁽³⁾

It is noted that the rights of disclosure and withdrawal are not the subject of international treaty obligations.

Australian law

The Copyright Act provides limited protection for the right of attribution in Part IX, which deals with the false attribution of authorship. It may also be argued that sections 35(5) and 55(2) partly protect the right of integrity.⁽⁴⁾ Nevertheless, the protection afforded to moral rights under Australian copyright law falls short of that required by the Berne Convention. In practice, creators wishing to enforce moral rights have to rely on the piecemeal protection provided by other areas of the law, such as the Trade Practices Act 1974 and the torts of passing off and defamation.⁽⁵⁾

Reform of Australian law

The need for specific moral rights legislation has been examined and debated in Australia for many years. In 1988, in its report on moral rights, a majority of the Copyright Law Review Committee (CLRC) recommended against the introduction of moral rights legislation. Following the publication of the report debate about moral rights intensified, leading to the then Government in its 1993 election platform undertaking to review the issue. In June 1994 the Ministers for Justice and Communications and the Arts released a Discussion Paper entitled Proposed Moral Rights Legislation for Copyright Creators. Responses to the Discussion Paper generally supported the introduction of moral rights.

In February 1996 the then Government released an Exposure Draft of proposed moral rights legislation and called for comments from industry groups. Consultation on the Exposure Draft gave rise to the Copyright Amendment Bill 1997, which was introduced into the House of Representatives in June 1997. The Bill was referred to the Senate Legal and Constitutional Legislation Committee which reported in October 1997. The Committee recommended a number of changes to the moral rights provisions, none of which were implemented because they were subsequently withdrawn from the Copyright Amendment Bill 1997.⁽⁶⁾ In his Second Reading Speech the Attorney-General explained that

The moral rights provisions were withdrawn from that Bill in 1998 when it became apparent that there was a need for further consultation on two or three specific issues of concern to industry.⁽⁷⁾

In February 1999 the Copyright Law Review Committee (CLRC) completed its report on the Simplification of the Copyright Act 1968. The CLRC recommended that the Act incorporate the exclusive moral rights of attribution and integrity.⁽⁸⁾

The present Bill reintroduces the moral rights legislation. The Bill retains much of the substance of the Copyright Amendment Bill 1997 but incorporates changes recommended by the Senate Committee and by various industry groups.

The significant differences between the Copyright Amendment Bill 1997 and the Copyright Amendment (Moral Rights) Bill 1999 are as follows:

the provision for moral rights to be waived⁽⁹⁾ has been dropped
screenwriters have been included as authors of cinematograph films,⁽¹⁰⁾ and
provision has been made for co-authorship agreements, whereby screenwriters, directors and producers may jointly exercise their rights of integrity.

Main Provisions

Item 1 of Schedule 1 replaces existing Part IX of the Copyright Act with new Part IX that provides more comprehensive protection for moral rights. Specifically, the new part protects the rights of attribution and integrity belonging to authors of literary, dramatic, musical and artistic works and cinematograph films.

New section 189 defines terminology used in new Part IX. 'Moral rights' is defined to mean the following three rights recognised in the new part: the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship (the right of integrity).

Note that for the purposes of new Part IX, 'work' is defined to include a cinematograph film, something which is elsewhere considered to be subject matter other than works (see Part IV). The definition of 'author' is similarly extended to include the 'maker' of a cinematograph film, which is in turn defined to include the screenwriter, director and producer of the film. The new part uses the term 'transmit', which means both broadcast and cause to be transmitted to subscribers to a diffusion service. (This definition will be ineffective when the Copyright Amendment (Digital Agenda) Bill 1999 becomes law, and for this reason Schedule 2 of the Bill proposes at that time to replace the term 'transmit' with 'communicate'.)⁽¹¹⁾

New section 191 applies to films with more than one screenwriter, director or producer. The section states that where more than one is involved, the moral rights in the film belong to the principal screenwriter, director or producer as the case may be.

New section 192 confirms that moral rights are additional to the economic rights already provided for by the Copyright Act. New section 190 stipulates that only individuals have moral rights. This means that corporate bodies cannot claim moral rights under Australian copyright law. For this reason new section 191(3) provides that where the producer of a film is a body corporate, the only moral rights in the film are those belonging to the screenwriter and director.

New Part IX is concerned only with the protection of moral rights in Australia: new section 195AX.

It is proposed to examine the three moral rights in turn, and then some general provisions relating to the duration and exercise of the rights, and remedies for infringement.

Attribution

New Division 2 deals with the right of attribution of authorship. New sections 193 and 194 require a person to identify the author of a work when doing any of the following acts (called 'attributable acts'):

in relation to a literary, dramatic or musical work-reproducing it, publishing it, performing it, transmitting it or making an adaptation of it
in relation to an artistic work-reproducing it, publishing it, transmitting it or exhibiting it in public
in relation to a cinematograph film-copying it, exhibiting it in public or transmitting it

Identification of the author can be made in any reasonable way and must be clear and reasonably prominent: new sections 195(1) and 195AA. Identification is 'reasonably prominent' if it is attached to each copy or adaptation that is made of the work in such a way that a person acquiring the copy or adaptation will have notice of the author's identity: new section 195AB. The only proviso to the requirement of identification arises if the author has indicated, either generally or to the person doing the attributable act, that he or she wishes to be identified in a particular way that is reasonable: in this case identification is to be made in that way: new section 195(2).

The right to attribution is infringed if a person does an attributable act in respect of the work without identifying the author in accordance with new Division 2 as the author of the work: new section 195AO. The right is not infringed, however, if a person establishes that it was not reasonable in all the circumstances to identify the author: new section 195AR. New sections 195AR(2) and (3) contain a list of factors to be taken into account when determining whether in particular circumstances it was reasonable not to identify the author. The factors include:

the nature of the work
the purpose, manner and context in which the work is used
any industry or voluntary codes of conduct that are relevant to the use of the work
the difficulty and expense in identifying the author, and
whether the work was made in the course of employment.

False Attribution

New Division 3 deals with the right not to have the authorship falsely attributed. New section 195AC establishes the author's right not to have the authorship of a work falsely attributed.

New section 195AD sets out the acts which constitute false attribution ('acts of false attribution') in relation to literary, dramatic and musical works:

affixing or inserting in or on a work, or a reproduction of a work, a person's name in such a way as to falsely imply that the person is the author of the work or the author of the adaptation
dealing with a work, or a reproduction of such a work, knowing that the name affixed or inserted is not that of the author's, or that the work is not an adaptation of the author's, or
performing in public such a work or transmitting such a work, knowing that the name affixed or inserted is not that of the author's, or that the work is not an adaptation of the author's.

New sections 195AE and 195AF set out similar acts of false attribution in relation to artistic works and cinematograph films respectively. The main difference is that an artistic work can be falsely attributed by using a person's name in connection with the work, in addition to affixing or inserting the name in or on the work.

New section 195AG(1) establishes that it is also false attribution to deal with an altered literary, dramatic, musical or artistic work, or reproduction of the work, as if it were unaltered, knowing that the work or reproduction is in fact altered. New section 195AG(2) excepts from this provision alterations of a minor or insubstantial nature, and those required by law. New section 195AH makes a similar provision in respect of cinematograph films.

The right not to have authorship of a work falsely attributed is infringed if a person does an act of false attribution in respect of the work: new section 195AP.

Integrity

New Division 4 deals with the right of integrity. New section 195AI provides an author with a right of integrity and establishes that an author has the right not to have his or her work subject to derogatory treatment.

New section 195AJ defines 'derogatory treatment' in relation to a literary, dramatic or musical work as a material distortion or alteration, a mutilation, or anything else, that is prejudicial to the honour and reputation of the author. Derogatory treatment has a similar definition with respect to artistic works and cinematograph films: new sections 195AK and 195AL. A public exhibition of an artistic work that is prejudicial to the author's honour and reputation because of the manner or place in which the exhibition occurs is also derogatory treatment: new section 195AK(b).

The right to integrity of authorship is infringed if a person subjects a work to derogatory treatment: new section 195AQ(2). The right to integrity is also infringed if he or she does any of the following with the work once it has been derogatorily treated (new sections 195AQ(3)-(5)):

in the case of a literary, dramatic or musical work-reproduces it, publishes it, performs it in public, transmits it or makes an adaptation of it
in the case of an artistic work-reproduces it, publishes it or transmits it
in the case of a cinematograph film-makes a copy of it, exhibits it or transmits it.

The right to integrity is not infringed, however, if it was reasonable in the circumstances to subject the work to derogatory treatment: new section 195AS. New sections 195AS (2) and (3) contain a list of factors to be taken into account when determining whether in particular circumstances it was reasonable to subject the work to derogatory treatment. The factors include:

the nature of the work
the purpose, manner and context in which the work is used
any industry or voluntary codes of conduct that are relevant to the use of the work
whether derogatory treatment was required to comply with law, and
whether the work was made in the course of employment.

In addition, the following do not constitute infringement of the right of integrity (new section 195AT):

destroying or moving a moveable artistic work if the author was first given a reasonable opportunity to move the work
changing or destroying a structure to which is affixed, or a part of which is, an artistic work
changing or demolishing a building that is an artistic work, and
preserving a work in good faith.

General provisions

Duration and exercise of moral rights

New Division 5 specifies the duration of moral rights, and who may exercise them.

New section 195AM provides that moral rights in respect of a work last as long as the copyright in the work, except for the right of integrity, which ceases upon the death of the author. If the author dies, his or her moral rights (except for the right of integrity) may be exercised by their personal legal representative: new section 195AN(1). Similarly, if an author's affairs are administered by another person, that person may exercise their moral rights: new section 195AN(2). An example of a case in which this would be necessary is if the author became legally incapacitated. New section 195AN(2) does not apply if the author becomes bankrupt. Otherwise, moral rights cannot be assigned or bequeathed: new section 195AN(3).

Joint authorship

The moral rights in respect of works with more than author belong to each author separately: new section 195AZI. The consent of any one author does not affect the moral rights of any other author. The same principle applies to films with more than one producer, director or screenwriter: new sections 195AZJ-AZL.

New sections 195AN(4) and (5) provide that, in the case of a work with more than one author, the authors can agree to only exercise their rights of integrity jointly. Such an agreement is known as a co-authorship agreement.

Infringement

New sections 195AU and 195AV establish that selling or dealing within Australia, or importing into Australia for the purposes of selling or dealing, an article which infringes an author's moral rights, constitutes an infringement of the author's moral rights.

Moral rights will not be infringed if the author consents to the act or omission in question: new section 195AW(1). An author's consent may be retrospective, may be unconditional or subject to conditions, and may be specific or general. An author's consent will be presumed, unless the contrary intention appears in a document, to extend to licensees and successors in title: new section 195AW(2)-(5).

Remedies for infringement

New Division 7 specifies the remedies that are available for the infringement of moral rights. New section 195AZ enables an author to bring a civil action for infringement, claiming the following remedies (new section 195AZA(1)):

injunction
damages for loss resulting from the infringement
a declaration that a moral right of the author has been infringed
an order that the defendant make a public apology, or
an order that false attribution or derogatory treatment be removed or reversed.

In proceedings for an injunction, the court has a duty to consider whether the matter can be settled through negotiation, and it may adjourn proceedings in order for the parties to attempt to negotiate: new section 195AZA(3). In deciding what relief should be granted, the court may take into account the following factors (new section 195AZA(2)):

whether the defendant was, or should have been, aware of the author's moral rights
the harm caused to the author's honour and reputation
the extent of public exposure of the work
any mitigating action taken by the defendant
cost and difficulty in identifying the author, or removing or reversing any false attribution of authorship or derogatory treatment, as the case may be.

Any damages recovered for infringement of moral rights are to be taken into account when assessing damages for infringement of other rights (including economic rights) under the Copyright Act, and vice versa: new sections 195AZB(2) and (3).

New sections 195AZD-AZF establish presumptions as to the subsistence of copyright and moral rights, and as to authorship, that assist in the proving facts in moral rights actions.

Application

New section 195AZM(2) and (3) provides that the right of attribution (except in the case of films) and the right not to have authorship falsely attributed, subsist in works made before the commencement of new Part IX, but that actions can only be brought for infringements after commencement.

The right to integrity of authorship subsists only in works and films made after the commencement of new Part IX: new section 195AZM(1).

Concluding Comments

The Bill implements a regime to protect the rights of attribution (including the negative right against false attribution) and integrity in Australian copyright law. In so doing, the Bill would appear to meet Australia's international obligations as far as moral rights protection is concerned.

It is perhaps worth commenting on two matters that have been raised in relation to moral rights legislation generally. The first is the need in common law jurisdictions for a provision to allow waiver of moral rights. The waiver provisions that formed part of the Copyright Amendment Bill 1997 have not been included in the present Bill. As was pointed out in a recent IRS Research Note:

If after further investigation it is found that moral rights, despite being 'non-economic', affect the commercial exploitation of works, a balance may need to be struck between the value of commercial exploitation of works and the interests of authors. The bottom line may be that artistic creators may be forced to ask how much their artistic integrity is worth.⁽¹²⁾

The second matter concerns the liability of Internet Service Providers (ISPs) for infringements of moral rights that arise through the making of ephemeral reproductions in the course of operating the Internet.⁽¹³⁾ The Copyright Amendment (Digital Agenda) Bill 1999 contains provisions⁽¹⁴⁾ which exclude ISPs from liability for temporary reproductions made as part of the technical process of making or receiving a communication. Perhaps consideration could be given to extending similar protection to exclude liability for infringement of moral rights arising from such temporary reproductions.

Endnotes

Attorney-General's Department and the Department of Communication and the Arts, Proposed Moral Rights Legislation for Copyright Creators, Discussion Paper, June 1994, para. 1.1.
ibid., para. 1.3.
Hon Daryl Williams AM, QC, MP, Attorney-General, Copyright Amendment (Moral Rights) Bill 1999 Second Reading Speech, Parliamentary Debates, House of Representatives, 8 December 1999, p. 13026.
Section 35(5) applies only in relation to commissioned photographs, paintings, drawings, portraits and engravings, and gives the creator the right to restrain the material from being used for a purpose other than that for which it was commissioned. Section 55(2) deems a record of a musical work that debases the work to be an infringement of copyright.
S. Platt and P. McDougall, 'Moral rights for Australian artists: how will the new legislation compare?', Art Monthly Australia, October 1997, p. 24.
Hon Daryl Williams AM, QC, MP, Attorney-General, Copyright Amendment (Moral Rights) Bill 1999, Second Reading Speech, Parliamentary Debates, House of Representatives, 8 December 1999, p. 13026.
CLRC, Simplification of the Copyright Act 1968 Part 2: Categorisation of Subject Matter and Exclusive Rights, and Other Issues, February 1999, para 5.03.
This was one of the recommendations of the Senate Legal and Constitutional Legislation Committee: see p. 13 of the Committee's report, October 1997.
This is because the Copyright Amendment (Digital Agenda) Bill 1999 removes the term 'transmit to subscribers to a diffusion service', and alters the definition of 'broadcast' in the Copyright Act 1968.
On this issue, see T. Aplin, 'Internet Service Provider Liability for Moral Rights Infringement in Australia', Digital Technology Law Journal, Vol 1, No 1, 1999.
See proposed sections 43A and 111A of the Copyright Amendment (Digital Agenda) Bill 1999.

Contact Officer and Copyright Details

Andrew Grimm
19 January 2000
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

IRS staff are available to discuss the paper's contents with Senators and Members
and their staff but not with members of the public.

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 2000.