|
|
[Home] [Help] [Databases] [WorldLII] [Feedback] |
|
Federal Law Review |
In Moral Rights and Their Application in Australia, Maree Sainsbury offers a summary of the new moral rights regime established in Australia in 2000. It is a decent guide and handbook to moral rights for legal practitioners, the authors of copyright work, and the users of copyright material. As the author notes:
The Australian moral rights legislation impacts on the rights and obligations of many people in diverse circumstances, from the creator of a highly unique work of art to the designer of a web site incorporating factual information or graphics which someone else has created. Any person creating or dealing with copyright material should be aware of the moral rights implications. This book provides a detailed analysis of the moral rights legislation, while stressing the fundamental provisions. It also provides some useful practical guidance for those who are affected, both in general terms and with respect to the more specific situations outlined above.[1]
It is a shame, though, that the publisher has pitched this text as a guidebook for legal practitioners. The narrative flow of the text is constantly interrupted by basic overviews of the chapters, and checklists of risk management considerations. The publisher should have shown greater bravery and confidence, and released the book as an academic monograph. The material is intrinsically interesting, and would have surely found a wider audience if it was written in a more discursive fashion.
Maree Sainsbury provides an enjoyable account of the history and nature of moral rights. She charts the romantic, Continental origins of moral rights, and explains their translation to countries such as Australia and the United States. There has been much suspicion and distrust of moral rights in common law countries. As David Vaver notes, the term 'moral rights' is somewhat inexact and misleading:
The expression 'moral rights' is misleading. Shakespeare was wrong: a rose by any other name does not smell as sweet. Whoever first translated 'droit moral' as 'moral right(s)' virtually made these rights perpetually suspect to English speakers. Since the word 'moral' is commonly contrasted with 'legal', one's first reaction to a 'moral right' is that it is something to which one has no legal entitlement — only a moral or (if one prefers polysyllables) deontological entitlement. On the one hand, retaining droit moral is unsatisfactory. It emphasizes the foreignness of the whole concept and inhibits its easy integration into English law... On the other hand, there is no good English translation or shorthand for droit moral: 'personal rights' or 'intellectual rights' come within range but still are connotatively off-target.[2]
As a result, common law countries have tended to interpret moral rights in light of existing jurisprudence — especially in the fields of defamation law, contract law, passing off, and consumer protection law. There have been concerns that, as a result, moral rights have only been afforded symbolic protection in common law countries.
The book offers an eminently readable account of the epic policy process behind the enactment of the Copyright Amendment (Moral Rights) Act 2000 (Cth). In the past three decades, there has been a series of policy inquiries, which discussed whether Australia should have a system of moral rights.[3] There were three versions of the legislation put forward into Parliament in 1997, 1999, and 2000. There were dramatic revisions in the redrafting of the legislation. Maree Sainsbury outlines the outcome of such political prevarications. The politics of the legislative process are never properly discussed. There are allusions to the disagreement within the film industry as to the content of the first draft of the Bill in 1997. However, there is not yet a systematic account of the positions taken by the various professional organisations in the debate.[4] Similarly, there is a summary of the final convoluted provisions dealing with public architecture and sculpture. Yet, there is no sense of the political lobbying undertaken by the Property Council of Australia, and the Royal Australian Institute of Architects.[5] As a result, the reader is left in the dark as to why Australia reached the legislative compromises that it did in relation to the moral rights regime.
Maree Sainsbury provides a commentary on the new right of attribution — the right to be identified as the author of the work. She also considers the right against false attribution — emphasizing English precedents such as Clark v Associated Newspapers Ltd.[6] The book does not mention the recent Supreme Court of Queensland case of Adams v Quasar Management Service Pty Ltd, [7] which provided a consideration of false attribution of authorship. A civil engineer who had written a Domestic Construction Manual alleged that s 190 of the Copyright Act 1968 (Cth) dealing with the false attribution of authorship was breached because he was not identified as one of the authors of the original work comprised in the New South Wales and Victoria editions. The defendants countered that they were protected by the new defence of reasonableness under s 195AR of the Copyright Act 1968 (Cth). However, Philippides J held that the defendants could not avail themselves of the new defence:
Part IX of the Act was substantially amended by the Copyright Amendment (Moral Rights) Act 2000 (Cth), which came into force on 21 December 2000. As the relevant attribution in this case occurred prior to 21 December 2000, it is Part IX, as in force prior to the amendments, that is applicable in this case. This is made clear by the transitional provisions of the Amendment Act. [Section] 195AR and s 195AZA of the Act form part of the provisions of Part IX introduced in December 2000 and are therefore not applicable.[8]
Philippides J found that the defendants were in breach of s 190 of the Copyright Act 1968 (Cth). However, the judge did not think that damages were warranted — as the plaintiff had already received compensation for breach of contract. Philippides J could be faulted for confusing attribution and false attribution in this case. Arguably, the civil engineer was concerned about lack of attribution — rather than being falsely attributed as the author of the work. This case shows that judges will need to be careful distinguishing between the right of attribution and the right against false attribution under the new moral rights regime.
Maree Sainsbury also considers the new right of integrity — the right to object to the material distortion, mutilation or alteration to a work that is prejudicial to the author's honour and reputation. The book surprisingly fails to deal with the influential Federal Court case of Schott Musik International GmBH & Co v Colossal Records of Australia Pty Ltd,[9] which considered the meaning of debasement. The case concerned whether a techno dance adaptation made by the group Excalibur of the 'O Fortuna' chorus from Carl Orff's Carmina Burana debased the original work. It involved s 55(2) of the Copyright Act 1968 (Cth), which provided that the entitlement to a compulsory licence for a record does not apply 'in relation to a record of an adaptation of a musical work if the adaptation debases the work'. At first instance, Tamberlin J found that Excalibur preserved substantial and essential elements of the original intact, and communicated an exuberance and rhythmic character consistent with the spirit of the work.
On appeal, the Federal Court upheld the finding of Tamberlin J. There was disagreement, though, over the proper test for debasement. Hill J favoured an objective test, but Wilcox J and Lindgren J supported a subjective test. However, the Federal Court refused to consider whether the original work was debased by associations with advertisements, films, and adaptations licensed by the copyright owners. It found 'the fact that on a future hearing of the work a listener is plagued with visions of Nescafé coffee beans, Arnold Schwarzenegger or Michael Jackson does not necessarily mean that the work is to be regarded as already diminished or debased'.[10] The decision provides the best indication as to how Australian courts will interpret the new moral rights provisions.
The book considers the operation of the new moral rights regime in a number of cultural fields of production and industrial realms. Chapter Six deals with moral rights and digital works — a much neglected subject. There is a good discussion of the impact of moral rights upon computer software, multimedia, and the Internet. It is curious that the policy process behind the Copyright Amendment (Moral Rights) Act 2000 (Cth) ran parallel with the introduction of the Copyright Amendment (Digital Agenda) Act 2000 (Cth). Yet there was little legislative effort to harmonise the two legislative regimes. At the last moment, the Attorney-General, Daryl Williams, did introduce provisions dealing with the liability of Internet Service Providers for moral rights infringement.[11] Arguably, the right of attribution reinforces the protection of electronic rights management information under the new scheme for digital copyright. However, the Government did not address the fundamental tension between the conservative Continental aesthetics of moral rights and the new cultures of copying, which have been made possible by the development of new digital technologies.
The book devotes a good chapter to moral rights and Indigenous cultural property. It provides an interesting gloss upon the implications of the judgment of von Doussa J in Bulun Bulun and Milpurrurru v R & T Textiles Pty Ltd.[12] This groundbreaking judgment provided limited recognition of communal ownership of Indigenous cultural property through the device of fiduciary duties. However, there is a little about the legislative moves afoot to provide comprehensive protection of the moral rights of Indigenous communities. The Federal Government announced that it would put forward a bill to provide communal ownership of moral rights in respect of Indigenous cultural material — Copyright Amendment (Indigenous Communal Moral Rights) Bill 2003. The Attorney-General's press release said:
Indigenous communities will be able to take legal action to protect against inappropriate, derogatory or culturally insensitive use of copyright material under new legislation proposed by the Government. Amendments to the Copyright Act, to be introduced into Parliament later this year, will give Indigenous communities legal standing to safeguard the integrity of creative works embodying traditional community knowledge and wisdom.[13]
At present, the Government has engaged in the drafting of the proposed amendments and has announced that it will continue to consult in fine-tuning the new provisions. Of course it remains to be seen whether such legislative proposals are realised.
There are other curious oversights in the international material. The author mentions the well-known case of Snow v Eaton Shopping Centre,[14] which was heard by the Ontario High Court. However, she fails to discuss the much more significant and momentous Canadian precedent of Théberge v Galerie d'Art du Petit Champlain Inc.[15] The Supreme Court of Canada heatedly debated in the Théberge Case the proper relationship between economic rights and moral rights. Trained in a common law tradition, Binnie J for the majority held:
Moral rights act as a continuing restraint on what purchasers such as the appellants can do with a work once it passes from the author, but respect must be given to the limitations that are an essential part of the moral rights created by Parliament. Economic rights should not be read so broadly that they cover the same ground as the moral rights, making inoperative the limits Parliament has imposed on moral rights. [16]
In a strong dissent, Gonthier J, with a civil law background, argued:
my colleague, Binnie J, suggests that this case arises out of the conceptual differences between 'the droit d'auteur of the continental civiliste tradition and the English copyright tradition'. I cannot subscribe to that view. The disposition of this case is determined solely by the aspects that derive from the English concept of copyright ...[17]
The case provides a wonderful illustration of the clash over the notion of moral rights between common law and civil traditions.
The book could also have been strengthened by a thorough literature review. The secondary material is quite dated in some respects. The bibliography is rather thin and sparse. The author refers to a lot of the commentary that took place over the debate over whether a moral rights system should be introduced into Australia in the early 1990s — such as the discussions organised by the Arts Law Centre of Australia and the Institute for Cultural Studies. She is less conversant with the academic work on the moral rights scheme introduced by the Federal Government in 2001. In particular, the author fails to mention the excellent work of Elizabeth Adeney of Deakin University who has written extensively on the subject of moral rights in Australia.[18] She also does not refer to the insightful pieces by Patricia Loughlan of Sydney University upon the operation of moral rights in Australia.[19] There has also been some interesting comparative work, looking at how moral rights have been translated in Australia from European models.[20] As a result, the horizons of the book are somewhat limited and curtailed.
In sum, the book Moral Rights and Their Application in Australia is to be welcomed. Australian lawyers versed in a common law tradition need as much help as possible to make sense of the Continental origins of moral rights. The great strength of the book is its willingness to consider the operation of moral rights in a range of fields of cultural production and industries. The weakness of the text relates to its patchy coverage of the literature on moral rights. There are some puzzling oversights of case law, policy developments, and commentary on moral rights in Australia. Hopefully such omissions can be remedied in future editions of the book.
[∗] Matthew Rimmer, BA (Hons), LLB (Hons) (ANU), PhD (UNSW), is a Lecturer at the Australian Centre for Intellectual Property in Agriculture ('ACIPA'), the Faculty of Law, the Australian National University.
[1] Maree Sainsbury, Moral Rights and Their Application in Australia (2003) xxii.
[2] David Vaver, 'Moral Rights Yesterday, Today, and Tomorrow' (1999) 7 International Journal of Information Technology and Law 270, 271–2.
[3] Attorney-General's Department Copyright Law Review Committee, Report on Moral Rights (1988); Attorney-General's Department, Proposed Moral Rights Legislation for Copyright Creators (1994); and Senate Legal and Constitutional Legislation Committee, Commonwealth Parliament, Copyright Amendment Bill 1997 (1997) (concerning the Bill that became the Copyright Amendment Act (No 1) 1997 (Cth)).
[4] Matthew Rimmer, 'Shine: Copyright Law and Film' (2001) 12 Australian Intellectual Property Journal 129.
[5] Matthew Rimmer, 'Crystal Palaces: Copyright Law and Public Architecture' (2002) 14 Bond Law Review 320.
[6] [1998] 1 WLR 1558; (1998) 39 IPR 262.
[7] (2002) 56 IPR 385.
[9] (1996) 71 FCR 37, 36 IPR 267; aff'd (1997) 75 FCR 321, 38 IPR 1.
[10] (1996) 71 FCR 37, 50.
[11] Copyright Amendment (Digital Agenda) Act 2000 (Cth) s 195 AVA.
[12] (1998) 41 IPR 513.
[13] Richard Alston, Daryl Williams and Philip Ruddock, 'Indigenous Communities To Get New Protection For Creative Works' (Press Release, 19 May 2003).
[14] (1982) 70 CPR 105.
[15] (2002) 210 DLR (4th) 385; 23 BLR (3d) 1; 17 CPR (4th) 161; 285 NR 267 (SCC), <http://www.canlii.org/ca/cas/scc/2002/ 2002scc34.html> at 1 July 2004.
[16] Ibid 398.
[17] Ibid 428.
[18] Elizabeth Adeney, 'Authors' Rights in Works of Public Sculpture: A German/Australian Comparison' (2002) 33 International Review of Industrial Property and Copyright Law 164; Elizabeth Adeney, 'Moral Rights and Substantiality: Some Questions of Integration' (2002) 13 Australian Intellectual Property Journal 5; Elizabeth Adeney, 'Defining the Shape of Australia's Moral Rights: A Review of the New Laws' (2001) 4 Intellectual Property Quarterly [UK] 291; Elizabeth Adeney, 'Moral Rights: A Brief Excursion into Canadian History' (2001) 15 Intellectual Property Journal 205; Elizabeth Adeney, 'The Mask of the Author— Anonymity and Pseudonymity in Two Common Law Countries' (2000) 31 International Review of Industrial Property and Copyright Law 913; Elizabeth Adeney, 'The Moral Right of Integrity of Authorship: A Comparative View of Australia's Proposals to Date' (1998) 9 Australian Intellectual Property Journal 179; Elizabeth Adeney, 'Moral Rights/Statutory Licence: The Notion of Debasement in Australian Copyright Law' (1998) 9 Australian Intellectual Property Journal 21.
[19] Patricia Loughlan, 'The Ravages of Public Use: Aboriginal Art And Moral Rights' (2002) 7 Media and Arts Law Review 17; Patricia Loughlan, 'The Right of Integrity: What Is in That Word Honour? What Is in That Word Reputation?' (2001) 12 Australian Intellectual Property Journal 189; Patricia Loughlan, 'Moral Rights (a View from the Town Square)' (2000) 5 Media and Arts Law Review 1; Patricia Loughlan and Charles Colquhoun, 'Authorship and the Attribution Right: What Matter Who's Speaking?' (1999) 4 Media and Arts Law Review 89.
[20] Elisabeth Logeais, 'The Introduction of Moral Rights in Australia: A French Perspective' (2001) 47 Intellectual Property Forum 32–43.