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ausip:moralrights [2015/11/20 10:04]
natcameron [Waiver, assignment, and remedies]
ausip:moralrights [2019/09/11 14:54] (current)
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-# Moral Rights+# Moral Rights and Performers ​Rights
  
-**Video overview by Nicolas Suzor on [moral rights](https://​www.youtube.com/​watch?​v=Zg_pPoz2BXY&​index=6&​list=PLa0bKPnUKQrzsxtMxKxWy_Ed2KWNs-s0u).**+Creators of copyright have a special right known as “moral rights”, in addition to the rights covered earlier in this topicMoral rights ensure that:
  
-Moral rights were introduced by the Copyright Amendment (Moral Rights) Act 2000 (Cth)+a creator is credited for their work at all times even if it is sold or assigned;
  
-Part IX of the Copyright Act 1968 (Cthnow provides:+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 right of attribution of authorship;+* a work is not treated in a manner that is prejudicial to a creator’s honour or reputation.
  
-    * rights ​against false attribution ​of authorshipand+Moral rights ​can only be owned by individuals (not corporations). A creator will hold their moral rights for the entire duration ​of copyrightmoral rights cannot be transferred to anyone else.
  
-    * right of integrity.+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 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
  
-* Protection for moral rights has more recently ​been extended to directors and performers.+The philosophy underpinning ​moral rights ​is that creators deserve respect integral to the act of creativity which remains even after copyrights ​has been assigned.
  
-## Right of Attribution+**Video overview by Nicolas Suzor on [Moral Rights](https://​www.youtube.com/​watch?​v=Zg_pPoz2BXY&​index=6&​list=PLa0bKPnUKQrzsxtMxKxWy_Ed2KWNs-s0u).**
  
-* An author must be identified where attributable acts are done in respect ​of the work (s 193).+Moral rights were introduced by the Copyright Amendment (Moral Rights) Act 2000 (Cth) which provides that creators ​are protected from three sources of harm:((Part IX of the //Copyright Act 1968// ​(Cth) ))
  
-    ​Performers too: s 195ABA+  ​a right of attribution of authorship;​ 
 +  * rights against false attribution of authorship; and 
 +  * a right of integrity.
  
-* Creators of copyright material have the right to be attributed when the work is:+As noted above, ​the moral rights were extended in 2004 to include performers.
  
-    * for literary, dramatic, or musical works: reproduced, published, performed, communicated,​ or adapted.+## Rights Granted to Authors
  
-    * for artistic works: reproduced, published, exhibited, communicated;​+### Right of Attribution
  
-    * for films: copied, exhibited, communicated.+The right of attribution requires that an author must be identified where attributable acts are done in respect of the work ((//CA// s 193))The right of attribution is also applied to performers. ((//CA// s 195ABA))
  
-    * For performancescommunicated,​ staged, or copied.+Creators of copyright material have the right to be attributed when the work is:
  
-If a creator has not stated the way in which he or she wishes to be identifiedany clear and reasonably prominent form of identification may be used(s 195195ABC)+  ​for literary, dramatic, ​or musical works: reproducedpublished, performed, communicated,​ or adapted. 
 +  * for artistic works: reproducedpublished, exhibited, communicated;​ 
 +  * for films: copied, exhibited, communicated. 
 +  * For performances:​ communicated,​ staged, or copied.
  
-* Attribution must be clear and reasonably prominent (s 195AA195ABD)+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. ((//CA// ss 195195ABC))
  
-* It is not necessary to attribute the creator if:+Attribution must be clear and reasonably prominent. ((//CA// s 195AA, 195ABD))
  
-    * the creator has consented in writing ​not to be identified; or+It is not necessary ​to attribute the creator if:
  
-    ​* it is reasonable in all the circumstances not to identify the author (ss 195AR, 195AXD)+  * the creator has consented in writing not to be identified; or 
 +  ​* it is reasonable in all the circumstances not to identify the author. ((//​CA// ​ss 195AR, 195AXD))
  
-## Right against False Attribution+### 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.+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. ​((//CA// ss 195AC, 195AHA))
  
-    * Section 195AC (false ​attribution ​of authorship)+False attribution ​means:
  
-    ​Section 195AHA (false attribution ​of performance)+  ​crediting the wrong person as the creator or performer; or 
 +  * crediting the creator ​of a work that has been altered without acknowledging the alterations.
  
-* False attribution means:+It is also an infringement of this right to knowingly deal with or communicate a falsely attributed work.
  
-    ​crediting ​the wrong person ​as the creator or performer; or+NOTE: the reasonableness test is unavailable ​as a defence.
  
-    * crediting the creator ​of a work that has been altered without acknowledging the alterations.+### Right of Integrity
  
-* It is also an infringement ​of this right to knowingly deal with or communicate a falsely attributed ​work.+The right of integrity is the right not to have your work subjected to derogatory treatment((//CA// ss 195AJ-195ALB))
  
-## Right of Integrity+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.
  
-* The right of integrity ​is the right not to have your work subjected to derogatory treatment ​(see ss 195AJ-195ALB).+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.
  
-* Derogatory ​treatment ​means:+It is not an infringement if the derogatory ​treatment ​or other action was reasonable. ((//CA// ss 195AS and 195AXE))
  
-    * doing anything that results in a material distortion ​ofthe mutilation ​of, or a material alteration ​to, the work that is prejudicial to the author'​s honour or reputation; or+There are special exceptions to infringement ​of the right of integrity in relation ​to artistic works (including buildings and architectural drawings).
  
-    * doing anything else in relation to the work that is prejudicial ​to the author'​s ​honour ​or reputation; ​or+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.   
  
-    * in the case of artistic worksexhibiting in way or place that is prejudicial ​to the author’s honour ​or reputation.+It is not an infringement ​of moral rights to changerelocate, demolish or destroy ​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 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.+It is not an infringement of moral rights ​to do anything in good faith to restore ​or preserve a work.
  
-    * To date, there have been no cases in Australia to clarify what this might mean.+### Defence of Reasonableness
  
-* It is not an infringement if the derogatory treatment ​or other action was reasonable ​(s 195AS, s 195AXE)+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.
  
-* There are special exceptions ​to infringement of the right of integrity in relation to artistic works (including buildings and architectural drawings).+The //Act// sets out a number of factors ​to be taken into account in working out whether ​the action was reasonableThese include:
  
-It is not an infringement ​of moral rights to:  +  ​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.
  
-    * destroy a moveable artistic work, if the creator, or the creator'​s representative,​ is given a reasonable opportunity to remove the work; or 
  
-    ​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 consultationare met;  ​+**Video overview by Madeline Menzies-Miha on[Moral Rights ​and Reasonableness](https://​www.youtube.com/​watch?​v=gycmrJ_AOhk)** 
 + 
  
-    * 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  + 
  
-    * 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+**Video overview by Courtney Steffens on[Moral Rights and Reasonableness](https://​www.youtube.com/​watch?​v=mlfjVQYif3s)**  ​
  
-* 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;+## Waiver and Assignment
  
-    * the purpose, manner and context for which it is used;+Moral rights can be waived. This is not explicitly stated in the //Act// but the term consent ​is used on several occasions.
  
-    * relevant industry practice;+Moral rights cannot be assigned. Even after the economic components of copyright have been assigned, the creators still retains the moral rights. ​
  
-    * whether the work was created in the course of employment or under a contract of service; and+## Examples
  
-    * if there are two or more authorstheir views about the failure to attribute or derogatory treatment.+As the moral rights ​are relatively newno significant body of case law has been developed in Australia.
  
-<WRAP box round 450px> +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.
-Madeline Menzies-Miha on Moral rights ​and reasonableness +
-{{youtube>​gycmrJ_AOhk}} ​  +
-  +
-</​WRAP>​ +
- +
  
 +__//Perez & Ors v Fernandez// (([2012] FMCA 2))__
  
-<WRAP box round 450px> +The case of [Perez & Ors v Fernandez](http://​classic.austlii.edu.au/​au/​cases/​cth/​FMCA/​2012/​2.html) 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'​. 
-Courtney Steffens ​on Moral rights ​and reasonableness +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”.
-{{youtube>​mlfjVQYif3s}} +
-</​WRAP>​ +
- +
  
 +The Federal Magistrates Court held that the new recording infringed Perez'​s right of integrity on the basis that:
  
-## WaiverAssignment ​and Remedies+  * 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 workbecause it mocked Perez and sought to promote Fernandez at Perez'​s expense. 
 +Fernandez'​s use was not reasonable in the circumstances.
  
-* Moral rights can be waived.+__//Schott Musik International GmbH v Colossal Records of Australia// (( (1996) 71 FCR 37 (Carmina Burana case), [1997] FCA 531))__
  
-    * This is not explicitly stated in the Act but the term consent is used on several occasions.+The case of [Schott Musik International Gmbh v Colossal Records Australia](http://​classic.austlii.edu.au/​au/​cases/​cth/​FCA/​1997/​531.html) 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.
  
-* Moral rights cannot ​be assigned.+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.”
  
-* Moral rights will persist even where the author has assigned ​the economic rights.+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”.
  
-* Remedies for moral rights infringements can include injunctionsdamages and apologies ​or the removal ​or reversal ​of the particular treatment.+On appealthe 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"​.
  
-### Examples+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"​.
  
-As the moral rights are relatively new, no significant body of case law has yet developed in Australia.+__*Buffet v Fersing* (1962) D Jur 570 (Fr)__
  
-* Moral rights are loosely derived from the French system ​of droit moral. The French authorities are not directly relevantbut may serve as an illustration of the types of treatments ​which may be found to be derogatory in Australia.+Bernard Buffet had painted six panels ​of a refrigeratorand signed only one panel. Fersing bought ​the refrigerator at a charity auction and resold the panels individually for a profit. Buffet was able to recover damages for infringement ​of his moral right of integrity because Fersing had mutilated his expression, ​which was intended ​to stand as a whole.
  
-#### *Perez & Ors Fernandez[2012] FMCA 2+__*Huston ​Societe de l'​Exploitation de la Cinquieme Chaine(1991) 149 Revue Internationale du Droit d'​Auteur 197 (Cour de cassation)__ ​
  
-- Perez '​Pitbull'​ is the US-based author ​of the song “Bon, Bon”. Fernandez, ​Perth-based DJ, had planned ​to host Perez on-tour in Australia, and Perez had recorded ​promo referring to and supporting Fernandez ('DJ Suave')+The estate ​of John Huston successfully sought an injunction against ​French television broadcaster ​to prevent the broadcast of colourised version of Huston'​s black and white film 'Asphalt Jungle'. 
-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. +An earlier suit brought ​in the US failed
-The Federal Magistrates Court held that the new recording infringed Perez'​s right of integrity. +Material distortion ​of his work prejudicial to honour ​or reputation. ​
-    - 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.+
  
-#### *Schott Musik International GmbH Colossal Records of Australia* ​(199671 FCR 37 (Carmina Burana case)+__//​Snow ​The Eaton Centre Limited// ​(( (198870 CPR (2d) 105))__
  
-- 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. +A Canadian shopping centre had bought a sculpture ​of 60 flying geese from the plaintiff. When the shopping centre tied Christmas ribbons around the necks of the geese, Snow applied for an injunction
-- The issue was whether a techno remix of a classical musical work ‘debased’ ​the original+The Ontario High Court ordered ​that the ribbons ​be removedholding ​that the treatment ​of the sculpture was prejudicial to Snow's honour ​or reputation
-The Federal ​Court held that a wide approach should ​be takentaking account of the broad spectrum of community tastes and values. +Snow said it was prejudicial ​to his honour – reducing it to crass advertisement ​of Christmas
-- 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: “the adaptation must be so lacking in integrity or quality that it can properly be said to have degraded the original work.” +
-    - Justice Lindgren: ““impermissible distortion, mutilation or other modification ​of the musical work.” +
-- 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"​.+
  
-#### *Buffet ​Fersing* ​(1962) D Jur 570 (Fr)+__//​Morrison Leahy Music Limited and another ​Lightbond Limited// ​(([1993] E.M.L.R. 144.))__
  
-- Bernard Buffet had painted six panels of a refrigeratorand signed only one panel. Fersing bought the refrigerator at charity auction and resold ​the panels individually for profitBuffet ​was able to recover damages for infringement ​of his moral right of integrity because Fersing had mutilated his expression, which was intended to stand as a whole.+In 1993George Michael was granted ​preliminary injunction preventing ​the release of medley of a number of George Michael'​s songsThe Court of Appeal in London found that it was arguable that the remix record could constitute derogatory treatment ​of George Michael'​s works.
  
-#### *Huston ​Societe de l'​Exploitation de la Cinquieme Chaine* ​(1991) 149 Revue Internationale du Droit d'​Auteur 197 (Cour de cassation+__//​Confetti Records ​Warner Music// ​(([2003] EWCh 1274 (ch) [150]))__
  
-- The estate ​of John Huston successfully sought an injunction against a French television broadcaster to prevent ​the broadcast ​of a colourised version ​of Huston'​s black and white film '​Asphalt Jungle'​. +In 2003, the UK High Court found that there was no infringement ​of moral rights when rap lyrics were recorded over the top of a remix of an original song, at least without any expert evidence as to what the lyrics actually meant.
-- An earlier suit brought in the US failed. +
-- Material distortion of his work prejudicial to honour or reputation+
  
-#### *Snow v The Eaton Centre Limited* (1988) 70 CPR (2d) 105+## Remedies ​
  
-- A Canadian shopping centre had bought a sculpture of 60 flying geese from the plaintiff. When the shopping centre tied Christmas ribbons around the necks of the geese, Snow applied ​for an injunction. +There are three main remedies available ​for breach ​of moral rightsThese include:
-- The Ontario High Court ordered that the ribbons be removed, holding that the treatment of the sculpture was prejudicial to Snow's honour or reputation. +
-- Snow said it was prejudicial to his honour – reducing it to crass advertisement ​of Christmas+
  
-#### *Morrison Leahy Music Limited and another v Lightbond Limited* [1993] E.M.L.R. 144.+  - An injunction to prevent people from harming a person'​s work or to ensure proper attribution for use;
  
-In 1993, George Michael was granted a preliminary injunction preventing the release of a medley of a number of George Michael'​s songs. The Court of Appeal in London found that it was arguable that the remix record could constitute derogatory treatment of George Michael'​s works. +  ​Damages; and 
- +
-#### *Confetti Records v Warner Music* [2003] EWCh 1274 (ch) [150] +
- +
-- In 2003, the UK High Court found that there was no infringement of moral rights when rap lyrics were recorded over the top of a remix of an original song, at least without any expert evidence as to what the lyrics actually meant. +
- +
-## Remedies ​+
  
-Injunction:  +  ​An apology ​and rectification.
-    - To prevent peopel from harming a person'​s work or to ensure proper attribution for use.  +
-- Damages.  +
-- Apology ​and rectification. ​+
  
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