Moral Rights and Copyright
Phillip Bailey
Law & Bills Digest Group
23 March 1999
Moral Rights and Copyright
Context
In recent years Australia has considered giving authors and artists greater
control over their creative output.
In February 1999 the Copyright Law Review Committee (CLRC) completed
its report on the Simplification of the Copyright Act 1968. The
CLRC recommended that specific legislation be enacted to recognise and
protect the two 'moral rights' set out in article 6bis
of the Berne Convention.(1)
What are moral rights?
'Moral rights' (droit moral) is a misleading expression, as these
rights have little to do with morality per se.
Instead it is a legal concept, devised in '... recognition that (an artistic)
work is an extension of the creator's personality and, as such, both the
work and the creator's relationship to the work must be acknowledged
and respected.'(2) (emphasis added)
Most commonly the term refers to an author's right to have their work
identified as their own (the right of attribution), and an author's
right to stop distortion or destruction of their work (the right of
integrity). These rights remain with the author and can not be transferred.
Moral rights are sometimes described as 'non-economic', as they are separate
from the economic rights of copyright.
Australia is obliged to protect moral rights as a party to the Berne
Convention. The Berne Convention provides for moral rights in article
6bis, which states:
(1)Independently of the author's economic rights, and even after the
transfer of the said rights, the author shall have the right to claim
authorship of the work and to object to any distortion, mutilation or
other modification of, or other derogatory action in relation to, the
said work, which would be prejudicial to his honour or reputation.
(2)The rights granted to the author in accordance with the preceding
paragraph shall, after his death, be maintained, at least until the
expiry of the economic rights, and shall be exercisable by the persons
or institutions authorised by the legislation of the country where the
protection is claimed. However, those countries whose legislation, at
the moment of their ratification of or accession to this Act, does not
provide for the protection after the death of the author of all the
rights set out in the preceding paragraph may provide that some of these
rights may, after his death cease to be maintained.
Is Australia currently protecting these rights?
Although Australia does not explicitly recognise moral rights, it is
argued that parts of the Copyright Act 1968 provide a similar but
limited form of protection. Pt IX of the Copyright Act 1968 prevents
anyone falsely attributing a work to
an author. There is also an argument that s. 52 of the Trade Practices
Act 1974 (Cth) (and State and Territory mirrored Fair Trading legislation)
can be used to protect against false attribution. Here it should be noted
that both of these methods merely provide a 'negative right' (ie it stops
false attribution, it does not actively require attribution).
Similarly, integrity of a work is said to be protected by the Copyright
Act 1968, in ss 35(5), and 55(2). These grant an author of a visual
artwork the power to stop the copyright owner making use of the work in
any other fashion than that stated in the agreement (arguably this right
also forms part of simple contract law). Subsection 55(2) provides a breach
of copyright to occur if the copyright owner debases an adaptation of
a musical work.
The present Act has been found to protect moral rights. In Carlton
Illustrators v Coleman and Co Ltd (3) Channel J held that
selling an altered form of an artist's work as unaltered, would be a breach
of the statute if it was: '... a material alteration ... which would be
likely to affect the credit and reputation of the artist.'(4) Several
other Australian cases have also considered similar 'negative rights'.(5)
The result is a patchwork of common law and legislated measures that
fail to completely protect moral rights as set out in article 6bis
of the Berne Convention. Whatever the implications are for domestic purposes,
the current law arguably falls short of the accepted international standard.
Attempts to account for moral rights
In 1996 the then Government attempted to legislate for moral rights,
producing an Exposure Draft of the Copyright Amendment Bill 1996.
Equivalent provisions were retained in the Copyright Amendment Bill
1997, but did not form part of the Copyright Amendment Act (No.
1) 1998 passed on 30 July 1998.
What would be the result of strongly protected moral rights?
Many discussions of moral rights, focus on their potential use by visual
artists to stop their works from being mutilated or distorted by purchasers
of their works.
This is not surprising as there have been numerous instances where a
subsequent purchaser has tampered with an artist's work. (In one case,
the buyer of a painting added spots all over it to match a sofa.(6))
Intuitively, the argument for protecting artists from such actions is
strong. Moral rights laws grant creators considerable power but this may
be seen as simply proportional to the loss of reputation that they can
suffer where their work is altered without their consent.
It is when this power comes into potential conflict with other economic
interests that dilemmas arise. Indeed, it is the threat to other interests
and established 'ways of doing business' that may account for halting
progress towards a comprehensive code in Australia. (Imagine, for example,
the situation where a screenwriter could stop a film producer from altering
a script.)
Overseas Experience
Moral rights have long been recognised in civil law countries, but have
taken a while to become accepted in common law countries. Both the UK
and the US approach to moral rights place these 'non-economic' rights,
clearly second to economic rights.(7)
The resistance to moral rights in common law countries has generally
been due to a fear that the result will be uncertainty about the extent
to which a copyright owner may exploit a work they have published. Whilst
the right of attribution is uncontroversial, the right of integrity has
attracted much attention.
Strong opposition to the introduction of moral rights legislation in
the US came from Hollywood film producers.(8) There has long been a tension
in Hollywood between authors and directors wanting 'creative control',
and producers wanting to be able to alter a script or film to maximise
commercial appeal.(9) Hollywood producers feared that moral rights would
remove their ability to freely make alterations to both screenplays and
completed films.
The moral rights implemented in the US are very limited in extent, and
are in essence limited to visual artwork only.(10)
The UK legislation(11) extends to literary, dramatic, musical or artistic
work, or the director of a copyright film. It excludes, however, computer
programs, magazines, and work created whilst under employment.(12)
In accord with this resistance to full moral rights, both the US and
UK legislation allows contractual waivers to remove these rights.(13)
It has been suggested that such measures are evidence of the intention
of both the UK and the US to fulfil their international obligations, whilst
protecting their main concern, the economic exploitation of intellectual
property.(14)
Concluding Comments
The CLRC's recommendation that moral rights be explicitly recognised
in the Copyright Act 1968, was made in the second part of its report,
released in February 1999, and is currently being considered by the Government.
The moral rights provisions in the 1997 Bill covered all works (and was
wider in scope than the US and UK legislation as it covered computer programs)
and did not permit contractual waivers. Although it should be noted that
the current Australian Government has indicated its intention that any
legislated moral rights would allow contractual waiver.
Moral rights are explicitly and strongly protected in civil law countries,
without apparently harming commercial exploitation of artistic works.
It should be noted that the UK and US implementation of moral rights was
limited in scope and allowed contractual waiver. The effect of moral rights
in a common law country without at least the availability of contractual
waiver is unclear. 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.
Endnotes
1. The Berne Convention consists of 105 states and embodies a considerable
collection of basic rights that member states must afford to authors
of other member states. Australia has been a member in its own right
since 1928. The convention has been revised on numerous occasions, the
most recent being the 1971 Paris text.
2. Australian Copyright Council, Implementing Moral Rights in
Australia, Bulletin 84 (November 1993), p. 1, quoted from Paras,
'Is Australia on the Road to Formally Recognising Moral Rights, or is
this One International Obligation which will Never be Formally Implemented?'
(1997) 2 Media and Arts Law Review 16 at p. 18.
3. [1911] 1 KB 771.
4. Id at 780-81.
5. Preston v Raphael Tuck and Sons Ltd [1926] 1 Ch. 667;
Crocker v Papunya Tula Artists Pty Ltd (1985) 5 IPR 426. It should
be noted that in both cases the plaintiff artists' claims failed.
6. Malcolm, J. Moral Rights & The Arts: a Discussion Paper,
Australia Council, 1984, p. 1.
7. Paras, see n. 2 at p. 34.
8. See Baumgarten, J. Gorman, R. Meyer, C.A. 'Preserving the Genius
of the System' (1990) vol 8, no. 3, Copyright Reporter for discussion
of the possible impact of moral rights on the film industry.
9. E.g., 'If a script is optioned ... or purchased, the altering
process kicks into high gear ... the gut wrenching tale of Jessica Savitch,
a bi-sexual, drug abusing TV anchor-woman who died tragically young,
can become, after 26 "polishes" 1995's soft and fuzzy love story Up
Close and Personal' Grey, Ian, 'The Screenplay', Icon, June
1998, p. 58.
10. Visual Artists Rights Act 1990 (USA)
11. Chapter IV, Copyright, Designs an Patents Act 1988 (UK)
.
12. s. 77(1);80(1); and 79 Copyright, Designs and Patents Act
1988 (UK).
13. s 87 Copyright, Designs and Patents Act 1988 (UK); s.
106(e)(1) of the Visual Artists Rights Act 1990 (USA)
14. Paras, see n. 2 at pp. 33-34.
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