Differences

This shows you the differences between two versions of the page.

Link to this comparison view

Both sides previous revision Previous revision
Next revision
Previous revision
ausip:moralrights [2019/02/25 15:08]
jessiej_87
ausip:moralrights [2019/09/11 14:54] (current)
nic
Line 1: Line 1:
 # Moral Rights and Performers Rights # Moral Rights and Performers Rights
  
-The concepts of moral rights and performers rights are still relatively ​new in 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, creatorsdirectorsthey protect individuals not the copyright owners. These rights operate parallel to the copyright regime and act as inalienable rights. ​+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. The philosophy underpinning moral rights is that creators deserve respect integral to the act of creativity which remains even after copyrights has been assigned.
Line 7: Line 17:
 **Video overview by Nicolas Suzor on [Moral Rights](https://​www.youtube.com/​watch?​v=Zg_pPoz2BXY&​index=6&​list=PLa0bKPnUKQrzsxtMxKxWy_Ed2KWNs-s0u).** **Video overview by Nicolas Suzor on [Moral Rights](https://​www.youtube.com/​watch?​v=Zg_pPoz2BXY&​index=6&​list=PLa0bKPnUKQrzsxtMxKxWy_Ed2KWNs-s0u).**
  
-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) ))+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) ))
  
   * a right of attribution of authorship;   * a right of attribution of authorship;
Line 19: Line 29:
 ### Right of Attribution ### Right of Attribution
  
-The right of attribution requires that an author must be identified where attributable acts are done in respect of the work (s 193). This also applied to performers. ((s 195ABA))+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))
  
 Creators of copyright material have the right to be attributed when the work is: Creators of copyright material have the right to be attributed when the work is:
Line 28: Line 38:
   * For performances:​ communicated,​ staged, or copied.   * 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. ((ss 195, 195ABC))+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 195, 195ABC))
  
-Attribution must be clear and reasonably prominent. ((s 195AA, 195ABD))+Attribution must be clear and reasonably prominent. ((//​CA// ​s 195AA, 195ABD))
  
 It is not necessary to attribute the creator if: It is not necessary to attribute the creator if:
  
   * the creator has consented in writing not to be identified; or   * the creator has consented in writing not to be identified; or
-  * it is reasonable in all the circumstances not to identify the author. ((ss 195AR, 195AXD))+  * 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. ((ss 195AC, 195AHA))+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))
  
-False attribution means:+False attribution means:
  
   * crediting the wrong person as the creator or performer; or   * crediting the wrong person as the creator or performer; or
Line 52: Line 62:
 ### Right of Integrity ### Right of Integrity
  
-The right of integrity is the right not to have your work subjected to derogatory treatment. ((See ss 195AJ-195ALB))+The right of integrity is the right not to have your work subjected to derogatory treatment. ((//​CA// ​ss 195AJ-195ALB))
  
 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. 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.
Line 58: Line 68:
 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 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. ((195AS, s 195AXE))+It is not an infringement if the derogatory treatment or other action was reasonable. ((//CA// ss 195AS and 195AXE))
  
 There are special exceptions to infringement of the right of integrity in relation to artistic works (including buildings and architectural drawings). There are special exceptions to infringement of the right of integrity in relation to artistic works (including buildings and architectural drawings).
Line 81: Line 91:
  
  
-**Video overview by Madeline Menzies-Miha on [Moral Rights and Reasonableness](www.youtube.com/​watch?​v=gycmrJ_AOhk)** ​ +**Video overview by Madeline Menzies-Miha on[Moral Rights and Reasonableness](https://www.youtube.com/​watch?​v=gycmrJ_AOhk)**
    
  
Line 88: Line 98:
  
  
-**Video overview by Courtney Steffens on [Moral Rights and Reasonableness](www.youtube.com/​watch?​v=mlfjVQYif3s)**+**Video overview by Courtney Steffens on[Moral Rights and Reasonableness](https://www.youtube.com/​watch?​v=mlfjVQYif3s)** ​ 
  
    
Line 101: Line 111:
 ## Examples ## Examples
  
-As the moral rights are relatively new, no significant body of case law has yet developed in Australia.+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. 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.
  
-__*Perez & Ors v Fernandez[2012] FMCA 2__+__//Perez & Ors v Fernandez// (([2012] FMCA 2))__
  
-Perez '​Pitbull' ​is 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')+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'​. 
-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.” +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. + 
-    ​- ​It was a material alteration or distortion; and +The Federal Magistrates Court held that the new recording infringed Perez'​s right of integrity ​on the basis that: 
-    ​- ​It was prejudicial to Perez'​s honour and reputation because ​+ 
 +  * 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 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 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.     - 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.+Fernandez'​s use was not reasonable in the circumstances
 + 
 +__//Schott Musik International GmbH v Colossal Records of Australia// (( (1996) 71 FCR 37 (Carmina Burana case), [1997] FCA 531))__ 
 + 
 +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. 
 + 
 +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”.
  
-__*Schott Musik International GmbH v Colossal Records ​of Australia* (1996) 71 FCR 37 (Carmina Burana case)__+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"​.
  
-- 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 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"​.
-- The issue was whether a techno remix of a classical musical work ‘debased’ the original. +
-- The Federal Court held that a wide approach should be taken, taking account of 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: “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 v Fersing* (1962) D Jur 570 (Fr)__ __*Buffet v Fersing* (1962) D Jur 570 (Fr)__
  
-Bernard Buffet had painted six panels of a refrigerator,​ and 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.+Bernard Buffet had painted six panels of a refrigerator,​ and 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.
  
 __*Huston v Societe de l'​Exploitation de la Cinquieme Chaine* (1991) 149 Revue Internationale du Droit d'​Auteur 197 (Cour de cassation)__ ​ __*Huston v Societe de l'​Exploitation de la Cinquieme Chaine* (1991) 149 Revue Internationale du Droit d'​Auteur 197 (Cour de cassation)__ ​
  
-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'​.+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'​.
 - An earlier suit brought in the US failed. - An earlier suit brought in the US failed.
 - Material distortion of his work prejudicial to honour or reputation. ​ - Material distortion of his work prejudicial to honour or reputation. ​
  
-__*Snow v The Eaton Centre Limited(1988) 70 CPR (2d) 105__+__//Snow v The Eaton Centre Limited// (( (1988) 70 CPR (2d) 105))__
  
-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. +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 Ontario High Court ordered that the ribbons be removed, holding that the treatment of the sculpture was prejudicial to Snow's honour or reputation. +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. ​+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.__+__//Morrison Leahy Music Limited and another v Lightbond Limited// (([1993] E.M.L.R. 144.))__
  
-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.+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.
  
-__*Confetti Records v Warner Music[2003] EWCh 1274 (ch) [150]__+__//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.+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 ​ ## Remedies ​
  • ausip/moralrights.1551067737.txt.gz
  • Last modified: 8 months ago
  • by jessiej_87