#8561 - Moral Rights Notes - Foundations of Intellectual Property

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

Duration and exercise of moral rights 27

Appendix – notes on origins, rationale and prelim points 29

Intro

Three types of moral rights:

Right of attribution
Right Not to be Falsely Attributed
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:

in relation to an author:

a right of attribution of authorship; or

a right not to have authorship falsely attributed; or
a right of integrity of authorship; and

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:

Is there a moral right?
Duration of the moral right?
Can the moral right be exercised by legal personal representative?
Infringement of the moral right?

	Has there been a failure to attribute the author of a literary, dramatic, artistic or musical work, or a film? Author’s name should be clear and reasonably prominent On works: attribution is necessary after 21 December 2000 On films: attribution is necessary on films made on or after 21 December 2000 Has there been a failure to attribute the performer of a live performance or recorded performance? Defence? No infringement if: Author consented in writing to failure to attribute; or 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. Note def: right to be attributed is a moral right according to para (a)(i) of moral rights definition in s 189 CA First issue: has there been a work or a film? Literary work? Dramatic work? Artistic work? Musical work? Film? Second: has there been an attributable act? 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)). 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)). 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). Third, does the act apply because of the dates? Works – attribution necessary after 21 Dec 2000. Film – attribution on films made on or after 21 Dec 2000. Fourth, has there been a failure to attribute? 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. 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. Fifth, is there a defence? See below: Consent; or Reasonable? See s 195AR Example of case: Meskenas v ACP Publishing 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. 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
2. If performer	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 section195ABB are done in respect of the performance.]. 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 PartXIA, 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 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). Second: has there been an attributable act? Live performance: communicating the live performance to the public (s 195ABB(1)(a)); and staging the live performance in public (s 195ABB(1)(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)). Third, does the act apply because of the dates? Fourth, has there been a failure to attribute? 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...

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

Note def: right to be attributed is a moral right according to para (a)(i) of moral rights definition in s 189 CA

First issue: has there been a work or a film?
1. Literary work?
2. Dramatic work?
3. Artistic work?
4. Musical work?
5. Film?
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).
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.
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 acquiring the reproduction or copy will have notice of the author’s identity: s 195AB.
Fifth, is there a defence? See below: Consent; or Reasonable? See s 195AR

Example of case: Meskenas v ACP Publishing

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.
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

2. If performer

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 section195ABB are done in respect of the performance.].

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 PartXIA, 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 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).

Second: has there been an attributable act?
1. Live performance: communicating the live performance to the public (s 195ABB(1)(a)); and staging the live performance in public (s 195ABB(1)(b)).
2. 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)).
Third, does the act apply because of the dates?
Fourth, has there been a failure to attribute?
1. 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...

#8561 - Moral Rights Notes - Foundations of Intellectual Property

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