Updated as at 10/10/2001.
1. What are Moral Rights?
Moral rights are a specific type of intellectual property right which are personal to the author of a work. Moral rights exist in addition to economic rights such as copyright which attach to a work and remain with the author even after economic rights are transferred from the author to another party. Moral rights are different from economic rights such as copyright because they are designed to protect the author's reputation.
Moral rights stem from the French concept of droit morale which is based on the concept that a work embodies the spirit of the author and is an extension of the author's person and personality and therefore, an attack on the work is equivalent to an attack on the author's person or personality.
There are two kinds of rights:
a) right of attribution: the right to be named as the author of the work and the associated right against false attribution, which is the right not to have your name attributed as the author of work if you are not the author; and
b) right of integrity: the right to not have one's work subjected to changes which may be derogatory to one's reputation.
2. Moral Rights in Australia
The Berne Convention (1) requires all of its signatories to protect moral rights (2). Australia is a signatory to the Berne Convention (3).
In December 2000, the Federal Government passed the Copyright Amendment (Moral Rights) Act 2000 ("the Act") amending the Copyright Act 1968 (Cth) to include moral rights protection.
a) Who gets the protection?
The moral rights provided by the Act will apply to the authors of all works covered by the Berne Convention. These are literary, artistic, dramatic and musical works and cinematograph films. The authors of films are the director, the producer (if the producer is a natural person but not a corporation) and the principal screenwriter of the film.
Moral rights can only be held by natural persons; they cannot be held by corporations.
b) What rights do authors get?
The Act provides for three types of rights:
(i) right of attribution
(ii) right against false attribution; and
(iii) right of integrity.
In the case of films the right of integrity expires with the death of the author (4). For other works, the right of integrity continues for the duration of the copyright (copyright usually continues in force for the life of the author plus 50 years). For all material the right of attribution continues for the duration of the copyright (5), however in the case of films this right exists only for films created after the Act commences. For all other works the right exists both for works created before the Act as well as those created afterwards.
3. Right of Attribution
The right of attribution arises when there is any "attributable act". An attributable act exists when the economic rights of copyright in the work are exercised.(6) For example, the author of the work should be identified whenever the work is copied, transmitted or shown to the public.
The author may be identified by any reasonable form of identification.(7) The author may specify a particular way in which he or she is to be identified, and if it is reasonable in the circumstances, identification must be made that way. The identification of the author must be clear and reasonably prominent.(8) "Reasonably prominent" means that identification is included on each reproduction or adaptation of the work so that the person acquiring the reproduction or adaptation has notice of the authorís identity.
4. Right against False Attribution
An author has the right to not have a person ("the attributor") do any of the acts of false attribution that are set out in the Act. (9)
There are different types of acts of false attribution. False attribution in relation to literary, dramatic or musical work or film includes:
(a) inserting or affixing of a person's name in or on a work or a copy of a work in a way that implies falsely that the person is the author (or one of the authors) of the work or that it is an adaptation of that work;
(b) dealing commercially with the work or a copy of the work with a person's name inserted in or affixed to the work if the person doing the dealing knows that the person is not the author of the work;
(c) performing in public or transmitting the work as being a work, or an adaptation of a work, of a person if the attributor (ie the performer or the transmitter) knows that the person is not the author of the work, or that the work is not an adaptation of a work of the person.
In relation to artistic work, false attribution includes using the person's name in connection with the work falsely implying that the person is an author of the work.
In relation to films, false attribution includes dealing commercially with a film or its reproduction which has been altered by a person other than the author commercially as though it were the unaltered work of the author if the dealer knew that it was not. . (10) However, this does not apply if the alteration was only minor or the alteration was required to comply with the law or to avoid breaking the law.
5. Right of Integrity
The author has the right to not have his or her work subjected to derogatory treatment. . (11) Although derogatory treatment is defined differently for each category of work, essentially a work is defined to be subjected to derogatory treatment if anything is done in relation to the work that is prejudicial to the author's reputation or honour . (11).
"Derogatory treatment" includes the doing of anything in relation to the work that results in distortion or mutilation of, or alteration to the work that is prejudicial to the author's honour or reputation. In relation to artistic work, derogatory treatment also includes the exhibition of the work in public in a manner that is prejudicial to the author's honour or reputation because of the manner or the place in which the exhibition occurs.
6. Infringement of Moral Rights
Essentially, infringement occurs if any of an author's moral rights are not observed reasonably in the circumstances.
The matters which must be taken into account when determining whether or not it was reasonable in the circumstances to breach moral rights differ depending on the type of right. Common matters include:
(a) the nature of the work,
(b) the purpose for which the work is used,
(c) the manner in which the work is used,
(d) the context in which the work is used,
(e) any relevant industry practice,
(f) any relevant industry practice contained in voluntary codes of conduct, and
(g) whether the work was created in the course of employment.
In relation to the right of attribution, one must also take into account any difficulty or expense that would have been incurred to identify the author or representatives of the author. In relation to the right of integrity, the matters to be considered also include whether or not the treatment was required by law or was necessary to avoid breaking the law.
Certain treatment is specifically expressed not to constitute an infringement of the author's right of integrity of authorship . (13). For example:
* The destruction of a moveable artistic work is not an infringement of the author's right of integrity if the person who destroyed the work gave the author, or a person representing the author, a reasonable opportunity to remove the work.
* An artistic work forming part of or attached to a building can be changed, relocated, demolished or destroyed as long as the owner has made reasonable inquiries and been unable to locate the author. If the author is located, the owner must provide the author with a written notice stating the owners intention and the notice must allow the author to have access to the work within 3 weeks from the date of the notice, either for making a record of it or consulting with the owner about the change, relocation, demolition or destruction.
* The removal or relocation by a person ("the remover") of a moveable artistic work that is situated at a place that is accessible to the public, and was made for installation in that place, is not an infringement of the author's right of integrity if the remover makes reasonable inquiries and cannot discover the identity and location of the author. If the author is located, the same requirement to give notice and access mentioned in the last point applies.
Anything done in good faith to restore or preserve a work is not, by that act alone, an infringement of the authorís right of integrity of authorship in respect of the work. Anything done in good faith simply to restore or preserve an original or copy of a work or film is not an infringement of the author's right of integrity of authorship of that work or film.
If something is done in relation to the work with the author's consent, it is not an infringement of the author's moral rights as long as the thing comes within the scope of the consent granted. . (14)
In the case of employees general consents may be signed for the benefit of their employers which cover all or any of the works they create during the course of their employment. . (15)
A consent given for the benefit of the owner of copyright in the work is presumed unless the contrary intention appears on the contract or other consent instrument.
7. Remedies for Infringement
The remedy for an infringement of an author's moral rights would be a civil action against the infringer. The possible remedies include: injunction, damages for loss suffered as a result of the infringement, a declaration that the author's moral rights have been infringed, an order that the defendant make a public apology, or an order that any false attribution or derogatory treatment be removed or reversed. . (16)
8. Internet and Moral Rights
The ease with which works that are stored digitally can be reproduced, disseminated, manipulated, adapted and so on means that there is enormous scope for breach of moral rights on the Internet.
In 1997 for example, the so-called "wear sunscreen" speech circulated the globe via the Internet. The speech was attributed to Kurt Vonnegut as an address he gave to a graduation ceremony at MIT (the Massachusetts Institute of Technology). The speech was widely disseminated via group email and reached an enormous audience whose size could not be estimated with any accuracy. The mode by which the email was disseminated was via forwarding. A user would receive the email, then forward it on to a group of friends, then each person in that group would forward it on to another group, and so on. In this process, each time an email was sent and received, an attributable act would be deemed to have occurred.
The speech was in fact a column by a journalist, Mary Schmich, published by the Chicago Tribune on 1 June 1997. Not only had Mr Vonnegut never written the speech but the speaker at the MIT graduation ceremony that year was Mr Kofi Annan, the secretary general of the United Nations. . (17)
Any attempt to find the originator was futile because of the number of loops the message had been though. This example illustrates clearly the difficulty of monitoring and enforcing moral rights on the Internet.
9. Service Providers and Moral Rights
Internet Service Providers (ISPs) and other related service providers may encounter similar problems of "indirect liability" as they already have in relation to defamation and copyright with respect to moral rights.
Each time a work is hosted, sent, received, etc. an attributable act would be deemed to have occurred. Where it is impossible to find the actual person who originated the work which infringes moral rights, the easier option (as is sometimes the case with defamation on the Internet: see Defamation Fact Sheet) may be to sue the ISP on whose network the work was passed through or hosted.
ISPs may be able to rely on various defences including the cost involved in identifying the author. Also in terms of policy, the legislature may exempt them from being held liable when they were not able to control or check the materials which pass through or are hosted on their network. (18)
10. Industry Codes of Practice
Since the legislation was introduced, various industry bodies have established or are in the process of establishing codes of practice that need to be considered when using the work of another.
In August 2001 the Royal Institute of Architects entered into an agreement with the Advertising Federation of Australia, establishing guidelines for the advertising industry attributing the work of architects when using their works in advertising. It will apply to advertisements that include a drawing, model, illustration, building/s, urban environments, or a piece of furniture.
The Screen Producers Association of Australia, the Australian Screen Directors Association and the Australian Writers Guild have a consent regime permitting alterations to be made to films so long as the reasoning complies with certain criteria.
Both the National Association for the Visual Arts, and the Australian Society of Authors are the process of establishing an industry code of practice regarding attribution. It is expected that these will both clarify the extent of retrospective rights and obligations.
Other relevant Fact Sheets:
Copyright
Defamation
Sources of Law
Copyright Amendment (Moral Rights) Act 2000
Copyright Act 1968 (Cth)
Explanatory Memorandum to Copyright Amendment (Moral Rights) Bill 1999
Second Reading Speech (19)
End Notes
1. Berne Convention for the Protection of Literary and Artistic Works. This is an important international instrument which establishes the intellectual property protection regime.
2. See Article 6 of Berne Convention, of Paris text 1896: Independently of the authorís economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work (right of attribution, 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 (right of integrity).
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 protection is claimed. The means of redress for safeguarding the rights granted by this article shall be governed by the legislation of the country where protection is claimed.
3. Initially, the Convention was applied to Australia when the British Government applied it to Australia with its consent in 1887. Australia became a signatory in its own right since 1928.
4. see new section 195 AM (1)
5. see new section 195 AM (3)
6. See new section 194.
7. See new section 195.
8. See new section 195AA and 195AB.
9. See new section 195AC.
10. See new section 195AG.
11. See new section 195AI.
12. See new section 195AJ, 195AK and 195AL.
13. section 195AT.
14. See new section 195 AWA.
15. See new section 195 AW. (4)
16. See new section 195AZA.
17. For a fuller account of this story, see: http://chicagotribune.com/news/columnists/schmich/0,1122,SAV-9708030176.00.html
18. T. Aplin, "Internet Service Provider Liability for Moral Rights Infringement in Australia" @ http://www.law.murdoch.edu.au/dtij/articles/vol1_1/aplin.html
19. http://www.aph.gov.au/parlinfo/billsnet/main.htm