Moral rights
Moral rights of authors, film-makers and performers
With amendments that came into force on 26 July 2007, Part IX of the Copyright Act 1968 provides for comprehensive moral rights protection in Australia for authors of literary, dramatic, musical and artistic works, film-makers (producers, directors and screenwriters) and also for performers. The amendments extending moral rights protection to performers for their live and recorded performances (ie sound recordings of performances) implement Australia’s obligations under the WIPO Performances and Phonograms Treaty, which also commenced on that date.
Nature of moral rights
Part IX implements three moral rights that are separate and distinct from the economic rights in a literary, dramatic, musical or artistic work, film or live or recorded performance. They are:
- the right of attribution of authorship or performership — to be named in connection with one’s work, film or performance
- the right against false attribution of authorship or performership of a work, film or performance, and
- the right of integrity of authorship or performership — the right of an author or performer to object to treatment of a work, film or performance that demeans their reputation.
When moral rights apply
The right of integrity is primarily directed against mutilation or distortion of a work, film or performance that is prejudicial to the author or performer’s reputation. In the case of art works, the right also covers destruction and public exhibition that are prejudicial in that way.
The right of integrity also covers copyright-type uses of prejudicially altered works, films and recorded performances, including reproduction, broadcasting, making available online, public performance or exhibition, distribution and, in the case of works, publication. The right of attribution and the right against false attribution also apply to all, or some, of those uses of unattributed or misattributed works, films and performances.
Differences between moral rights and copyright or performers’ rights
Concern that moral rights further burden the users of copyright material is misplaced. If the user of a work, film or performance respects the right of a creator or performer — that is, acknowledges, where reasonable, the authorship or performership of the work, film or performance and, where reasonable, avoids treatment that is prejudicial to the reputation of the author or performer — then the user does not owe the author or performer anything and does not need the author or performer’s permission to make the intended use of the work, film or performance. In contrast, a user of one of the copyright economic rights or performers’ rights — such as the right to reproduce, to publish, to record, to broadcast — must always have the copyright owner or performer’s permission, express or implied, unless the use comes within a statutory exception.
To underline the personal nature of moral rights, they remain with the author or performer even though he or she may have transferred copyright in the work, film or recording concerned to another person. After the author or performer’s death, they are exercisable by the author or performer’s legal personal representatives. Generally, moral rights will last as long as the copyright in the work, film or recording concerned.
Infringement of moral rights — defences
Liability for infringement of a moral right arises where a person mistreats a work, film or performance, or makes a use of it, in contravention of one of the three rights, or authorises another to do that. 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, film or performance. If contemplating the granting of an injunction, a court must first look at ways of encouraging the parties to settle.
Importantly, non-attribution of a work, film or performance or prejudicial mistreatment will not be an infringement of moral rights if the act or omission was reasonable in the circumstances. The legislation prescribes a number of matters to be considered in determining reasonableness, including the nature of the work, film or performance, the purpose, manner and context of its use, relevant industry practice and whether it was made or given 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, films and performances must accord the authors and performers. 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 or performer to non-compliance. There are very precise provisions about the permitted scope of a consent. Persons employed to create works or films or to perform 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.
Application of moral rights to various copyright materials and performances
Part IX recognises that moral rights present special difficulties for buildings and for 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 recognises the different nature of films compared with literary, dramatic, musical and artistic works, a difference recognised throughout the Copyright Act. While the right of integrity of authorship in literary, dramatic musical and artistic works lasts as long as copyright, in films it continues only until the death of the last surviving film-maker. There are other differences.
The nature of performers’ moral rights is different again, reflecting not only the nature of performances but also the different international obligations. Attribution of groups of performers is by reference to their group name, where they have so chosen. Infringement by non-attribution, false attribution and prejudicial treatment of live performances must have occurred at, or almost at, the same time as the performances were given. There are other distinctive details of performers’ moral rights.
Role of moral rights
For authors, film-makers and performers, Part IX affords them recognition and respect in connection with their creations and performances. However, experience in other countries, and so far in Australia, suggests that enforcement of moral rights through the courts is an exceptional occurrence. The main impact of Part IX is, therefore, 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, artists, film-makers and performers.
Further information
Questions and answers on the legislation can be found in the information sheet on moral rights prepared by the Australian Copyright Council.