Edit this page

Moral Rights and Performers Rights

1. Rights Granted to Authors
   1. Right of Attribution
   2. Right against False Attribution
   3. Right of Integrity
   4. Defence of Reasonableness
2. Waiver and Assignment
3. Examples
4. Remedies

Creators of copyright have a special right known as “moral rights”, in addition to the rights covered earlier in this topic. Moral rights ensure that:

• a creator is credited for their work at all times even if it is sold or assigned;

• a creator may take action if their work is falsely attributed (i.e. credited to someone else, or their name is credited incorrectly); and

• a work is not treated in a manner that is prejudicial to a creator’s honour or reputation.

Moral rights can only be owned by individuals (not corporations). A creator will hold their moral rights for the entire duration of copyright; moral rights cannot be transferred to anyone else.

The concepts of moral rights and performers rights are still relatively new in Australia, with the first mention of moral rights being introduced by the Copyright Amendment (Moral Rights) Act 2000 (Cth) and additional performers rights being implemented as a result of the US Free Trade Agreement Implementation Act 2004 (Cth). These moral rights protect authors, creators and directors - they protect individuals not the copyright owners. These rights operate parallel to the copyright regime and act as inalienable rights.

The philosophy underpinning moral rights is that creators deserve respect integral to the act of creativity which remains even after copyrights has been assigned.

Video overview by Nicolas Suzor on Moral Rights.

Moral rights were introduced by the Copyright Amendment (Moral Rights) Act 2000 (Cth) which provides that creators are protected from three sources of harm:¹

• a right of attribution of authorship;
• rights against false attribution of authorship; and
• a right of integrity.

As noted above, the moral rights were extended in 2004 to include performers.

Rights Granted to Authors

Right of Attribution

The right of attribution requires that an author must be identified where attributable acts are done in respect of the work². The right of attribution is also applied to performers.³

Creators of copyright material have the right to be attributed when the work is:

• for literary, dramatic, or musical works: reproduced, published, performed, communicated, or adapted.
• for artistic works: reproduced, published, exhibited, communicated;
• for films: copied, exhibited, communicated.
• For performances: communicated, staged, or copied.

If a creator has not stated the way in which he or she wishes to be identified, any clear and reasonably prominent form of identification may be used.⁴

Attribution must be clear and reasonably prominent.⁵

It is not necessary to attribute the creator if:

• the creator has consented in writing not to be identified; or
• it is reasonable in all the circumstances not to identify the author.⁶

Right against False Attribution

Authors of literary, dramatic, musical and artistic works and films and performers have the right not to have the authorship of their works falsely attributed.⁷

False attribution means:

• crediting the wrong person as the creator or performer; or
• crediting the creator of a work that has been altered without acknowledging the alterations.

It is also an infringement of this right to knowingly deal with or communicate a falsely attributed work.

• NOTE: the reasonableness test is unavailable as a defence.

Right of Integrity

The right of integrity is the right not to have your work subjected to derogatory treatment.⁸

Derogatory treatment means doing anything 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. It also includes doing anything else in relation to the work that is prejudicial to the author’s honour or reputation. In the case of artistic works, exhibiting in a way or place that is prejudicial to the author’s honour or reputation.

It is not clear to what extent the test for whether a derogatory treatment is prejudicial to the author’s honour or reputation takes into account the author’s subjective view, as opposed to an objective test. To date, there have been no cases in Australia to clarify what this might mean.

It is not an infringement if the derogatory treatment or other action was reasonable.⁹

There are special exceptions to infringement of the right of integrity in relation to artistic works (including buildings and architectural drawings).

It is not an infringement of moral rights to destroy a moveable artistic work, if the creator, or the creator’s representative, is given a reasonable opportunity to remove the work. Further it is not an infringement to change, relocate, demolish or destroy a building of which an artistic work forms part, or to which it is affixed, provided certain conditions (including the giving of notice and provision of access for the purpose of making a record and consultation) are met.

It is not an infringement of moral rights to change, relocate, demolish or destroy a building, provided certain conditions (including the giving of notice and provision of access for the purpose of making a record and consultation) are met; or to remove or relocate site-specific artworks, provided certain conditions (including the giving of notice and provision of access for the purpose of making a record and consultation) are met.

It is not an infringement of moral rights to do anything in good faith to restore or preserve a work.

Defence of Reasonableness

A failure to properly attribute the creator, or a derogatory treatment of copyright work, does not infringe the creator’s rights if the action was reasonable in the circumstances.

The Act sets out a number of factors to be taken into account in working out whether the action was reasonable. These include:

• the nature of the work;
• the purpose, manner and context for which it is used;
• relevant industry practice;
• whether the work was created in the course of employment or under a contract of service; and
• if there are two or more authors, their views about the failure to attribute or derogatory treatment.

Video overview by Madeline Menzies-Miha on Moral Rights and Reasonableness

Video overview by Courtney Steffens on Moral Rights and Reasonableness

Waiver and Assignment

Moral rights can be waived. This is not explicitly stated in the Act but the term consent is used on several occasions.

Moral rights cannot be assigned. Even after the economic components of copyright have been assigned, the creators still retains the moral rights.

Examples

As the moral rights are relatively new, no significant body of case law has been developed in Australia.

Moral rights are loosely derived from the French system of droit moral. The French authorities are not directly relevant, but may serve as an illustration of the types of treatments which may be found to be derogatory in Australia.¹⁰

The case of Perez & Ors v Fernandez involved Perez ‘Pitbull’, the US-based author of the song “Bon, Bon”. Fernandez, a Perth-based DJ, had planned to host Perez on-tour in Australia, and Perez had recorded a promo referring to and supporting Fernandez ‘DJ Suave’. After the tour was cancelled, Fernandez deleted a ‘prominent part’ of the recording, and substituted the previously made recording in a way that “made it appear that Mr Fernandez was a subject of the song”.

The Federal Magistrates Court held that the new recording infringed Perez’s right of integrity on the basis that:

• It was a material alteration or distortion; and
• It was prejudicial to Perez’s honour and reputation because - It created a false association that Perez had endorsed or deliberately associated himself with Fernandez; and - It caused Perez “anger and distress” (a subjective factor) and the false association was likely to be concerning for similar artists, who go to great lengths to control the people they are associated with (an objective factor).
  • It was also likely to be prejudicial to an audience who were more familiar with Perez’s work, because it mocked Perez and sought to promote Fernandez at Perez’s expense. Fernandez’s use was not reasonable in the circumstances.¹¹

The case of Schott Musik International Gmbh v Colossal Records Australia involved a a techno remix of a classical musical work and questioned whether this remix ‘debased’ the original. Before the introduction of moral rights, Section 55(2) previously prevented a recording artist from obtaining a statutory licence to record a musical work if the adaptation ‘debases’ the original work.

The Federal Court held that a wide approach should be taken, taking into account the broad spectrum of community tastes and values. At first instance, Tamberlin J considered that “[t]he term ‘debase’ calls for a value judgment based on a significant lowering in integrity, value, esteem or quality of the work.”

Justice Tamberlin considered the evidence, and concluded that the techno remixes did not debase the original, taking into account the lack of reduction in value of the original, the lack of “any widespread perception of reduction in quality, rank or dignity” of the original, the fact that sales and interest in the original may have increased due to the remix, and the fact that the remix “preserves substantial and essential elements of the original intact, communicates a powerful exuberance and rhythmic character quite consistent with the character of the work”.

On appeal, the Full Federal Court used a number of tests: Justice Wilcox stated that, “the adaptation must be so lacking in integrity or quality that it can properly be said to have degraded the original work”. Justice Lindgren noted that “another… way of formulating this question is to ask whether the allegedly infringing arrangement is an impermissible distortion, mutilation or other modification of the musical work. Of course the word ‘impermissible’ itself invokes questions of evaluation and degree”.

The FCAFC held that “‘debase’ is a strong term which requires much more than an opinion, even an expert opinion, that the adaptation is musically inferior”.

Remedies

There are three main remedies available for breach of moral rights. These include:

• An injunction to prevent people from harming a person’s work or to ensure proper attribution for use;

• Damages; and

• An apology and rectification.

---