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Moral Rights Notes

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1 LAWS3021 Foundations of IP 2 Moral Rights eb notes

Table of Contents

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2 Moral Rights Intro

Three types of moral rights: A. Right of attribution B. Right Not to be Falsely Attributed C. Right of integrity Consider each right individually. These rights last for the duration of a copyright work and cannot be assigned. In particular see s 189 CA for the definition of a moral right as: (a) in relation to an author: (i) a right of attribution of authorship; or (ii)a right not to have authorship falsely attributed; or (iii)a right of integrity of authorship; and (b) in relation to a performer: (i) a right of attribution of performership; or (ii) a right not to have performership falsely attributed; or (iii) a right of integrity of performership. Note the definition of author:

* Author, in relation to a cinematograph film, means the maker of the film, which means the director, producer and screenwriter of the film. performance means a performance within the meaning of Part XIA, so far as the performance consists of sounds performer in a performance: (a) means each person who contributed to the sounds of the performance; and (b) in relation to a performance that occurs outside Australia, does not include a person who is not a qualified person at the time of the performance. Note: See also section 191B, which deals with the conductor of a musical performance. work means a literary work, a dramatic work, a musical work, an artistic work or a cinematograph film.

*

Moral rights conferred on individuals: Only individuals have moral rights: S 190 CA

Overview:

1. Is there a moral right?

2. Duration of the moral right?

3. Can the moral right be exercised by legal personal representative?

4. Infringement of the moral right?

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3 A. Right of Attribution: s 193, and s 195ABA

1. Has there been a failure to attribute the author of a literary,

If author of work or film

3 dramatic, artistic or musical work, or a film?
a. Author's name should be clear and reasonably prominent b. On works: attribution is necessary after 21 December 2000 c. On films: attribution is necessary on films made on or after 21 December 2000

2. Has there been a failure to attribute the performer of a live performance or recorded performance?

3. Defence? No infringement if: a. Author consented in writing to failure to attribute; or b. Action was 'reasonable' in the circumstances State law under s 193: Author has right to attribution of authorship under s 193: Under s 193 CA the author of a work (literary, dramatic, artistic or musical work, or a film - according to the definition of relevant definition of work for Part IX in s 189) - has a right of attribution of authorship: s 193(1). This is the right to be identified in accordance with the CA as the author of the work if any attributable acts (defined in s 194) are done in respect of the work. a. Note def: right to be attributed is a moral right according to para (a)(i) of moral rights definition in s 189 CA

1. First issue: has there been a work or a film?
a. Literary work?
b. Dramatic work?
c. Artistic work?
d. Musical work?
e. Film?

2. Second: has there been an attributable act?
a. Literary, dramatic or musical works: attributable acts are the following: to reproduce the work in a material form (s 194(1) (a) to publish the work (s 194(1)(b)); to perform the work in public (s 194(1)(c)); to communicate the work to the public (s 194(1)(d)); to make an adaptation of the work (s 194(1)(e)). b. Artistic work: attributable acts are the following: to reproduce the work in a material form (s 194(2)(a) to publish the work (s 194(2)(b)); to exhibit the work to the public (s 194(2)(c)); to communicate the work to the public (s 194(2)(d)). c. Cinematograph film: to make a copy of the film (s 194(3)(a); to exhibit the film in public (s 194(3)(b)); to communicate the film to the public (s 194(e)(c).

3. Third, does the act apply because of the dates?
a. Works - attribution necessary after 21 Dec 2000. b. Film - attribution on films made on or after 21 Dec 2000.

4. Fourth, has there been a failure to attribute?
a. Attribution in any way reasonable: The author of a work (works + film) may be identified by any reasonable form of identification: s 195(1). Note s 195(2): if the author of the work makes known to the person who is required to identify the author that the author wishes to be identified in a particular way (s 195(2)(a); and the identification in that way is reasonable in the circumstances (s 195(2)(b)) - identification is to be made that way.

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4 b. Identification must be clear and reasonably prominent : s

195AA. This means that when a work (LDMA) is reproduced in a material form, an adaptation made of a L, D or M work, or a copy of a film is made, an identification will be reasonably prominent if it is included on each reproduction, adaptation, or copy of the film, in such a way that a person acquiring the reproduction or copy will have notice of the author's identity: s 195AB.

5. Fifth, is there a defence? See below: Consent; or Reasonable? See s 195AR

2. If performer

Example of case: Meskenas v ACP Publishing

5. The right of attribution expressed in s 193 is a positive right and prima facie was breached by the publication. The publication did not identify Meskanas as the author.

6. When determining whether reasonable or not to identify: cannot see there was anything in nature of work to prevent him. The portrait was signed. No evidence provided to indicate anything difficult in identifying it, or any practice in industry, or voluntary code that made it difficult to identify author. Identification of another artist would seem that magazine had no trouble about making an identification albeit a wrong one: Meskanas Right of attribution of performership: A performer in a live performance or recorded performance has a right of attribution of performership in respect of the performance: s 195ABA(1) [The performer's right is the right to be identified in accordance with this Division as a performer in the performance if any of the acts (the attributable acts) mentioned in section 195ABB are done in respect of the performance.].

1. First issue: has there been a live performance or recorded performance such that performer has a right of attribution in respect of it under s 195ABA? (must be a performance so far consisting of sounds) performance means a performance within the meaning of Part XIA, so far as the performance consists of sounds. recorded performance means a performance embodied in a record so as to constitute a sound recording. performance in Part XIA means: (a) a performance (including an improvisation) of a dramatic work, or part of such a work, including such a performance given with the use of puppets; or (b) a performance (including an improvisation) of a musical work or part of such a work; or (c) the reading, recitation or delivery of a literary work, or part of such a work, or the recitation or delivery of an improvised literary work; or (d) a performance of a dance; or (e) a performance of a circus act or a variety act or any similar presentation or show; or (f) a performance of an expression of folklore; being a live performance: (g) that is given in Australia, whether in the presence of an

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5 audience or otherwise; or (h) that is given by one or more qualified persons (even if it is also given by one or more persons who are not qualified persons), whether in the presence of an audience or otherwise. Note: Conductor to be treated as a performer: If a performance of a musical work is conducted by a conductor, then the sounds of the performance are to be treated as having been made by the conductor (as well as by the persons who actually made those sounds): s 191B [As a consequence - conductor can be treated as one of the performers - note however qualified person requirement in the definition of a performer in s 189).

2. Second: has there been an attributable act?
a. Live performance: communicating the live performance to the public (s 195ABB(1)(a)); and staging the live performance in public (s 195ABB(1)(b)). b. Recorded performance: making a copy record of the recorded performance (s 195ABB(2)(a)); and communicating the recorded performance to the public (s 195ABB(2)(b)).

3. Third, does the act apply because of the dates?

4. Fourth, has there been a failure to attribute?
a. Attribution in any way reasonable: The performer may be identified by any reasonable form of identification: s 195ABC(1). Note s 195ABC(2): if the performer makes known to the person who is required to identify the performer that the performer wishes to be identified in a particular way (s 195ABC (2)(a)) and it is reasonable (s 195ABC2()(b)- identification is to be made that way. If performance is presented by group name, identification by group name is sufficient: s 195ABC(3). b. Identification must be clear and reasonably prominent or reasonably audible: s 195ABD. When a copy record is made of a recorded performance, an identification of a performer or group of performers is taken to be reasonably prominent if it is included on each copy record of the recorded performance in such a way that a person acquiring the copy record will have notice of the identity of the performer or group: s 195ABE.

5. Fifth, is there a defence?
a. Consent b. Reasonable?

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6 B. Right Not to be Falsely Attributed: s 195AC195AH Summary Issue: Has there been a false attribution of authorship?

* Has the wrong person been credited as the author?
o False authorship for literary dramatic or musical work: s 195AD o False authorship for artistic work: s 195AE o False authorship for cinematograph film: s 195AF OR

OR

*

Has the work been altered without acknowledging the alterations when the author is credited?
o For altered L, D M or A work: s 195AG o For altered cinematograph film: s 195AH

*

Has someone knowingly dealt with or communicated a falsely attributed work?
o For literary, dramatic or musical work - to deal with the work ( s 195AD(b)) or reproduction of the work (s 195AD(c)) or perform the work or communicate the work to the public if attributor knows that person is not an author of the work or work is not adaptation of work of person (s 195AD(d)).

Note false attribution just means objectively incorrect, not that the person who attributed the work intended that it be wrong: Meskenas Test: Right not to be falsely attributed: The author of a work has a right not to have authorship of the work falsely attributed: s 195AC(1). The author's right is the right not to have a person (the attributor) do, in respect of the work, any of the acts (the acts of false attribution) mentioned in the following provisions of this Division: s 195AC(2).

* Source of right: right not to be falsely attributed is a moral right according to para (a)(ii) of moral rights definition in s 189 CA

1. Is there a work?
a. Literary, dramatic or musical work: s 195AD b. Artistic work: s 195AE c. Cinematograph film: s 195AF d. Altered literary, dramatic, musical or artistic work: s 195AG

e. Altered cinematograph film: s 195AH Division 3---Right not to have authorship of a work falsely attributed 195AC Author's right not to have authorship falsely attributed (1) The author of a work has a right not to have authorship of the work falsely attributed. (2) The author's right is the right not to have a person (the attributor) do, in respect of the work, any of the acts (the acts of false attribution) mentioned in the following provisions of

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7 this Division. 195AD Acts of false attribution of authorship of a literary, dramatic or musical work If the work is a literary, dramatic or musical work, it is an act of false attribution in relation to the author of the work: (a) to insert or affix, or to authorise the inserting or affixing of, a person's name in or on the work, or in or on a reproduction of the work, in such a way as: (i) to imply falsely that the person is the author or an author of the work; or (ii) to imply falsely that the work is an adaptation of a work of the person; or (b) to deal with the work with a person's name so inserted or affixed, if the attributor knows that the person is not an author of the work or that the work is not an adaptation of a work of the person, as the case may be; or (c) to deal with a reproduction of the work, being a reproduction in or on which a person's name has been so inserted or affixed, if the attributor knows that the person is not an author of the work or that the work is not an adaptation of a work of the person, as the case may be; or (d) to perform the work in public, or communicate it to the public, as being a work of which a person is the author or as being an adaptation of a work of a person, if the attributor knows that the person is not an author of the work or that the work is not an adaptation of the work of the person, as the case may be. 195AE Acts of false attribution of authorship of artistic work (1) This section applies if the work is an artistic work. (2) It is an act of false attribution in relation to the author of the work: (a) to insert or affix, or to authorise the inserting or affixing of, a person's name in or on the work, or in or on a reproduction of the work, or to use, or to authorise the use of, a person's name in connection with the work, or in connection with a reproduction of the work, in such a way as to imply falsely that the person is an author of the work; or (b) to deal with the work with a person's name so inserted or affixed, if the attributor knows that the person is not an author of the work; or (c) to deal with a reproduction of the work, being a reproduction in or on which a person's name has been so inserted or affixed, if the attributor knows that the person is not an author of the work; or (d) to communicate the work to the public as being a work of which a person is the author, if the attributor knows that the person is not an author of the work. 195AF Acts of false attribution of authorship of cinematograph film (1) This section applies if the work is a cinematograph film.

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