What are moral rights?

Moral rights are given to authors of copyright works which were introduced subsequent to the passing of the Copyright Amendment (Moral Rights) Act 2000 (Cth) (Amendment).  This amended the Copyright Act 1968 (Cth) (Act) by inserting sections 189 through to 195AZO.

The Revised Explanatory Memorandum, Copyright Amendment (Moral Rights) Bill 1999 (Cth), which explains Parliaments intention under the Amendment, and section 189 of the Act provide for the addition of three (3) moral rights in respect of authors and performers:

  • an author’s right to be identified as the author of a work (the right of attribution of authorship);[1]
  • the right of an author to take action against false attribution (the right not to have authorship of a work falsely attributed);[2] and
  • an author’s right to object to derogatory treatment of his or her work which prejudicially affects his or her honour or reputation (the right of integrity of authorship of a work).[3]

Moral rights may only be afforded to individuals.  Companies and other entities do not have the benefit of moral rights available to them.[4]

What do moral rights protect?

A broad set of works are protected by moral rights, including:

  • musical works;
  • dramatic works such plays and ballets;
  • literary material such as novels, song lyrics and poems;
  • artistic works such as drawings, paintings, photographs, maps and plans;
  • cinematograph films such as feature films, documentaries, music videos, television programs and television commercials; and
  • computer programs.[5]

Generally, all three (3) of an author’s moral rights generally continue until such time that copyright ceases to subsist in the works.[6]  An exception to this rule is the case of a cinematograph, where the moral right of integrity of authorship continues until the author dies.[7]  A performer’s right of attribution of performership and right not to have performership falsely attributed in respect of a recorded performance continues until copyright ceases to subsist in the recorded performance.[8]  A performer’s right of integrity of performership in respect of a recorded performance continues in force until the performer dies.[9]

Retrospective application of moral rights to previously published works

The Moral rights introduced in the year 2000 apply retrospectively in respect to literary, dramatic, musical or artistic works, other than cinematograph film made before the commencement of Copyright Amendment (Moral Rights) Act 2000 (Cth).  As stated in sections 195AZM195AZO, moral rights subsist in respect of a work made prior or after the commencement of the Act.  However, it is to be noted, that only acts, or omissions made after 21 December 2000 give rise to possible moral rights infringements.

When will moral rights be infringed?

Various specific and complicated rules apply in respect of infringement of the three moral rights.  Generally, an infringement of the right of attribution will be established where a person does, or authorises the doing of, an attributable act in respect of the work without the identification of the author.[10]  A person will infringe an author’s right not have authorship of a work falsely attributed if they person do an act of false attribution in respect of the work.[11]

An author’s right of integrity of authorship will be infringed where a person subjects the protected work to derogatory treatment.[12]  The meaning of ‘derogatory treatment’ is context specific, but generally refers to some material distortion, destruction, mutilation or material alteration of the work which prejudices the author’s honour or reputation.[13]

Similarly, a performer’s right of attribution will be infringed where a person communicates, stages or records the performance without proper and accurate identification of the performer.[14]  A performer’s right not to have their work falsely attributed will be infringed where a person falsely or incorrectly attributes the work to someone other than the performer.[15]  A performer’s right of integrity of performership will be infringed where the performance is subjected to ‘derogatory treatment’.[16]

Example of moral rights infringement

In the case of Meskenas v ACP Publishing Pty Ltd [2006] FMCA 1136 (Meskenas), The Federal Magistrates Court considered damages payable for moral rights infringement and held that these damages are comparable to copyright infringement damages payable.

In March 2005, a photograph of Her Royal Highness Crown Princess Mary of Denmark standing in front of a portrait of was published in the Australian Woman’s Day magazine, owned by ACP Publishing ACN 053 273 546 (now named Are Media Pty Ltd) (ACP Publishing).  The authorship was incorrectly attributed to Jiawei Shen, a competitor of the real artist, Vladas Meskenas.

The chief subeditor made a personal apology, but the uncorrected misattribution did not cease for nearly a year.  In June 2006, a formal retraction and apology was made.  In the published apology, the photograph of the painting was reproduced in reverse, adding to Meskenas’s distress.  This conduct attributed to breach of the author’s moral integrity.

ACP Publishing was found to be liable for infringing Meskenas’s moral rights of attribution of authorship and false attribution of authorship.  Nominal damages of $1,100 for economic loss and aggravated damages of $8,000 for additional distress were awarded.

Takeaways

Moral rights subsist in copyrighted works under Australian statutory and common law.  These rights exist automatically and require no action on the behalf of the author or artist and generally remain in force for as long as copyright subsists in the works.  Such rights are common considerations in the publishing of various artistic works and the infringement of moral rights may carry substantial penalties.

Links and further references

Related articles

How much copying results in copyright infringement?

Accessory liability for copyright infringement

Palmer breaches copyright – liable for $1.5m AUD in damages

Implied terms in copyright licences

s115A Copyright Act – infringement outside Australia

Legislation

Copyright Act 1968 (Cth)

Copyright Amendment (Moral Rights) Act 2000 (Cth)

Revised Explanatory Memorandum, Copyright Amendment (Moral Rights) Bill 1999 (Cth)

Cases

Boomerang Investments Pty Ltd v Padgett (Liability) [2020] FCA 535

Corby v Allen & Unwin Pty Limited [2013] FCA 370

Francis v Allen & Unwin [2014] FCA 1027

Further information

If you need advice on moral rights and copyright law for your business contact me for a confidential and obligation free and discussion:

Malcolm BurrowsMalcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.
Legal Practice Director
Telephone: (07) 3221 0013 (preferred)
Mobile: 0419 726 535
e: mburrows@dundaslawyers.com.au

 

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

[1] For performers, see Copyright Act 1968 (Cth) s 193.

[2] For performers, see Copyright Act 1968 (Cth) s 195AC.

[3] For performers, see Copyright Act 1968 (Cth) s 195AI; Explanatory Memorandum to the Copyright Amendment Moral Rights (Bill) 1999.

[4] Copyright Act 1968 (Cth) s 190.

[5] Copyright Act 1968 (Cth) s 189; See broadly Copyright Act 1968 (Cth) Part IX Divisions 1 – 8.

[6] Copyright Act 1968 (Cth) s 195AM(2).

[7] Copyright Act 1968 (Cth) s 195AM(1).

[8] Copyright Act 1968 (Cth) s 195ANA(1)-(2).

[9] Copyright Act 1968 (Cth) s 195ANA(3).

[10]  Copyright Act 1968 (Cth) s 195AO.

[11] Copyright Act 1968 (Cth) s 195AP.

[12] Copyright Act 1968 (Cth) s 195AQ.

[13] Copyright Act 1968 (Cth) ss 195AJ, 195AK, 195AL.

[14] Copyright Act 1968 (Cth) s 195AXA.

[15] Copyright Act 1968 (Cth) s 195AXB.

[16] Copyright Act 1968 (Cth) s 195AXC.

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