MORAL RIGHTS ACT—LEGAL DEVELOPMENTS IN COPYRIGHT

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MORAL RIGHTS ACT—LEGAL DEVELOPMENTS IN COPYRIGHT

The Copyright Amendment (Moral Rights) Act 2000 (Cth) (the Moral Rights Act) came into force on 21 December 2000.

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The Copyright Amendment (Moral Rights) Act 2000 (Cth) (the Moral Rights Act) came into force on 21 December 2000. Ostensibly, the Moral Rights Act gives comprehensive moral rights to individual authors and creators of artistic works, films, literary works, dramatic and musical works (Work) that previously were held by the Copyright owner. 'Literary works' includes all published and written works. The Moral Rights Act will also apply to building plans in printed and electronic form where the 'author' is the architect and software where the 'author' is the developer.

Historically, the ownership of copyright in a Work granted the owner unfettered rights in that Work's exploitation. And the owner of the copyright has also historically been (and remains) the person or company that provides the Work to consumers. The identity of the ultimate copyright owner in most cases differs from the author or creator of the Work itself.

Prior to the introduction of the recent amendments to the Copyright Act, the only legal means an author of a Work had to protect its integrity from being compromised or subjected to 'derogatory treatment' was by contractual restriction or, in some cases, defamation. As such the rights introduced by the Copyright Amendment (Moral Rights) Act 2000 (Cth) are an attempt to redress the poor bargaining position that authors of Works have found themselves in with producers, studios, production companies and large corporations, including the right to prevent their Work from being altered or compromised without their consent.

What are moral rights?

The Australian Copyright Council has stated that moral rights, in the context of copyright law, are 'rights relating to a creator's reputation in connection with his or her Work' and that they are 'additional to, and separate from, the "economic rights" associated with the Work'. According to the legislation, moral rights remain with the author even though copyright in the Work may have been transferred to another party. Moral rights are only available for individuals. They are not available to companies.

The Act provides for three Moral Rights:

  1. attribution of authorship

  1. —an author's right to be identified as the author of a Work;

     

  2. integrity of authorship

     

  3. —the right of an author to object to derogatory treatment of their Work; and

  4. the right of an author not to have authorship of a Work falsely attributed.

Example of infringement of moral rights—newsletters

An organisation or company infringes the moral rights of an author of a newsletter if it makes a copy of the newsletter and distributes it to clients or members without identifying the author in accordance with the Moral Rights Act. In similar vein it is an act of false attribution to deal with the newsletter if a person's name has been inserted or affixed to a copy of the newsletter and the organisation or company knows that the person is not the author of the newsletter.

The Moral Rights Act goes even further and states that if a newsletter has been altered by a person other than the author, it is an act of false attribution to deal with the newsletter, so altered, as being an unaltered version of the newsletter if the organisation knew that the newsletter has, in fact, been altered. That is, any altered Work must be disclaimed as such before it is exhibited or published.

Right of integrity

Authors now have the right to protect their Work from 'derogatory treatment'. Derogatory treatment is defined in the Moral Rights Act, and refers to doing anything to a Work that:

  • results in a material distortion of, the mutilation of, or a material alteration to the Work that is prejudicial to the author's honour or reputation; or

  • the doing of anything else in relation to the Work that is prejudicial to the honour or reputation of the author.

In this regard, the Moral Rights Act is unusually emotive. It also imports personal values that will be hard for any Court asked to interpret its provisions to decide upon without controversy and uncertainty.

Defences against breach of moral rights

A person or organisation that does not attribute the author or creator, or treats a Work in a derogatory way, does not infringe or breach moral rights if:

  • a special exception to infringement applied; or

  • the author or creator consented in writing to the act or omission.

Moral rights are personal and cannot be assigned. They can, however, be (for want of a better word) waived. The 'consent defence', as it has become known in some circles, is critical to the successful operation of the Moral Rights Act for businesses that are affected.

Sections 195AW and 195AWA provide that it is not an infringement of a moral right of an author in respect of a Work, if the act or omission, which may otherwise constitute a breach of the Act, was within the scope of a written consent given by the author or a person representing the author. Oral consent is not sufficient; for an author to waive their moral right, the consent must be in writing.

Consent for Works created in the course of employment

In relation to Works created in the course of an author's employment, a 'comprehensive consent' can be given by an employee for the benefit of the employer in relation to all or any acts or omissions (whether before or after the consent is given) and in relation to all Works made or to be made by the employee in the course of employment. All businesses dealing with copyright and ownership of it should obtain a signed consent from their employees. In addition, employment contracts that deal with ownership of copyright will need to provide for appropriate consent from the employee to the employer.

Infringement of moral rights—liability

Liability for infringement of a moral right can be incurred by the person who does the infringing act or who authorises another to do it. The legislation gives the courts 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. If contemplating the grant of an injunction, a court must first look to ways of encouraging the parties to settle.

The Act also provides that a consent provided to the copyright owner is presumed, unless the contrary intention is expressly stated, to extend to the copyright owner's licensees and successors in title.

Practical experience in the UK

For many authors of Works, this is where the reality will hit home. As is the practice in the United Kingdom, authors of Works will, when being contracted by companies to produce that Work, be required to waive their rights under the Moral Rights Act in relation to that Work. For example, it is a commercial reality that production companies will require directors and writers to waive their moral rights under the Moral Rights Act as the film distributors in Australia and overseas will require clear and unfettered title to films they screen.

Impact on business

 

Businesses need to ensure that they have the appropriate consent of an author for Work that they use in their marketing, advertising or other forms of publication so that they are not liable for infringing the moral rights of authors. Most businesses already acknowledge authorship as part of the process of obtaining economic copyright. However, all businesses dealing with copyright and ownership of it should immediately consider:

 

  • obtaining a comprehensive signed consent from all employees already involved in the production of any Works to which moral rights apply; and

  • updating employment contracts to include a comprehensive consent.

 

 
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