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Law Notes Foundations of Intellectual Property Notes

Moral Rights Notes

Updated Moral Rights Notes Notes

Foundations of Intellectual Property Notes

Foundations of Intellectual Property

Approximately 187 pages

These notes set out the relevant legal principles, and provide succinct fact summaries to demonstrate how those legal principles have been applied in various cases.

At the beginning of each document on each topic, there is a table of contents (hyperlinked so you can navigate easily through the document), and also an 'exam checklist', which you can use during revisions or exams to remind yourself of the key issues you have to address.

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LAWS3021 Foundations of IP 2 Moral Rights eb notes

Table of Contents

LAWS3021 Foundations of IP 2 Moral Rights eb notes 1

Moral Rights 2

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

B. Right Not to be Falsely Attributed: s 195AC-195AH 6

C. Right of integrity: ss 195AI – 195AL 12

2. Defences 15

(a) Reasonableness : s 195AR-AS 15

For failure to identify author: s 195AR (for performances: s 195AXD) 15

Reasonableness of derogatory treatment of copyright works: s 195AS (for performances: s 195AXE) 17

(b) Consent: s 195AW (film, work included in a film); s 195AWA (work not a film or included in a film, and s 195AXJ (performer’s consent to act or omission) 19

Author’s consent to act or omission—films or works in films: s 195AW (consent invalidated by duress/false statements under s 195AWB) 19

Author’s consent to act or omission—work that is not a film or included in a film: s195AWA (consent invalidated by duress or false statements: s 195AWB) 20

Performer’s consent to act or omission: s 195AXJ (invalidated by duress or false statements: s 195AXK) 21

(c) Specific exceptions for infringement to right of integrity: s 195AT 23

Duration and exercise of moral rights 27

Appendix – notes on origins, rationale and prelim points 29

Moral Rights

Intro

Three types of moral rights:

  1. Right of attribution

  2. Right Not to be Falsely Attributed

  3. 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:

  1. in relation to an author:

  1. a right of attribution of authorship; or

  1. a right not to have authorship falsely attributed; or

  2. a right of integrity of authorship; and

  1. 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 PartXIA, 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 section191B, 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?

Right of Attribution: s 193, and s 195ABA

  1. Has there been a failure to attribute the author of a literary, dramatic, artistic or musical work, or a film?

    1. Author’s name should be clear and reasonably prominent

    2. On works: attribution is necessary after 21 December 2000

    3. 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:

    1. Author consented in writing to failure to attribute; or

    2. Action was ‘reasonable’ in the circumstances

If author of work or film

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.

  1. 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?

    1. Literary work?

    2. Dramatic work?

    3. Artistic work?

    4. Musical work?

    5. Film?

  2. Second: has there been an attributable act?

    1. 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)).

    2. 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)).

    3. 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?

    1. Works – attribution necessary after 21 Dec 2000.

    2. Film – attribution on films made on or after 21 Dec 2000.

  4. Fourth, has there been a failure to attribute?

    1. 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.

    2. 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...

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