Janke, Terri --- "Berne, Baby, Berne: The Berne Convention, Moral Rights and Indigenous Peoples' Cultural Rights" [2001] IndigLawB 11; (2001) 5(6) Indigenous Law Bulletin 14

Berne, Baby, Berne: The Berne Convention, Moral Rights and Indigenous Peoples’ Cultural Rights

by Terri Janke

Indigenous Cultural and Intellectual Property rights provide important economic, cultural and social benefits to Indigenous peoples. In a technologically advancing world where information is a global currency, such rights are crucial to the cultural survival of Indigenous peoples. Indigenous people have the right to control their cultures in the interests of the continued preservation of their shared identity. Further, Indigenous people have the right to own and receive economic benefits from the fruits of their knowledge and cultural labour. For Indigenous peoples, the rights to protect the cultural integrity of Indigenous works, and to be attributed as the source of these works are fundamental Indigenous cultural and intellectual property rights.

There are several international human rights and evolving Indigenous rights instruments that place importance on the recognition of Indigenous cultural and intellectual property rights, for instance: the International Convention of Civil and Political Rights and the Draft Declaration of the Rights of Indigenous Peoples. However, these international conventions have had a limited effect in bringing about legislative change at a domestic level. Interestingly, a much older, intellectual property convention, the Berne Convention for Artistic and Literary Works (‘the Berne Convention’), [1] has provided the impetus for recent steps towards the protection of Indigenous cultural and intellectual property rights in Australia.

The Copyright Amendment (Moral Rights) Act 2000 (Cth) (‘the Moral Rights Act’) creates new moral rights which give creators the right to protect the integrity of their work, the right to have their work attributed to them and the right not to have someone else's work falsely attributed to them. The new law aims to implement Australia’s obligations under the Berne Convention. Adoption of this law by Australian has been a long time coming.

The Berne Convention

The Berne Convention is the international treaty that implements the world’s copyright laws. Originally adopted in 1886, the Convention was amended in 1928 to include provisions for the protection of moral rights.[2]

Moral rights laws originate from France, where they are referred to as the Droite de Morale. They are non-economic rights that aim to assist creators protecting the paternity and integrity of their works. Article 6bis of the Berne Convention provides:

Independently of their copyright or economic rights authors should enjoy the rights of paternity and integrity to their works, and the right to object to any distortion, mutilation or other modification of their work that would be prejudicial to their honour or reputation.

The rights granted to the author in accordance with the preceding paragraph shall, after his death be maintained, at least until the expiry of the economic rights, and shall be exercisable by persons or institutions authorised by the legislation of the country where protection is claimed.

The means of redress for safeguarding the rights granted by this article shall be governed by the legislation of the country where protection is claimed.

Australia has been a signatory to the Berne Convention since its inception in 1886, bound first through the British government and from 1928 as a signatory in its own right.[3] As Delia Browne explains:

the minimum requirements of the Berne Convention are the right of paternity or attribution and the right of integrity. The right of attribution grants authors the right to claim authorship or disclaim authorship, regardless of who owns the work or in what circumstances it is displayed. The right of integrity protects the author’s work from being altered or mutilated where it results or will result in prejudicial harm to the author’s honour or reputation.[4]

Article 6bis(3) of the Berne Convention allows member states to determine their own doctrine of moral rights in their national legislation. Moral rights are recognised in a number of jurisdictions including France, the United Kingdom, Switzerland, Canada and New Zealand. Australia has taken since 1928 to enact legislation in accordance of its obligations as a member state to the Berne Convention.

Moral Rights

Moral rights are inalienable rights. They cannot be assigned or transferred by sale. Because they are inalienable, moral rights remain with the author even where the copyright does not belong to the author. For example, employees hold moral rights in created work, even if copyright vests with the employer. Even if an author has assigned all of the copyright in his or her work to another person, the author will still retain his or her moral rights in the work.

The Moral Rights Act came into effect on 21 December 2000. The new law incorporates the following three moral rights:

1. The right of attribution of authorship; or

2. The right not to have authorship falsely attributed; or

3. The right of integrity of authorship.

Moral rights apply to authors of literary, dramatic, musical and artistic works and authors of cinematograph films. Authors of cinematograph films are the principal director, the principal producer (where that person is a natural person) and the principal screenwriter of the film.

i) The right of attribution

The author of a work has a right to be identified as the author of his or her work.[5]

The author is entitled to be attributed where his or her work has been used in a certain way. For example, the author of an artistic work is entitled to be attributed where his or her work is reproduced in material form, published, exhibited or transmitted.[6]

An identification of the author of a work must be clear and reasonably prominent.[7] Identification is reasonably prominent if it is attached to each copy or adaptation made of the work in such as way that a person acquiring the copy or adaptation will have notice of the author’s identity.[8]

There are also provisions that allow authors to identify the nature of the attribution.[9] This may allow Indigenous authors to acknowledge their clan affiliations and any communal rights the clan may have to the author’s work. It has become the practice in Indigenous arts industry for artists to be identified with their clan names so that the rights of the clans are asserted. For instance, Buku Larrnggay Mulka have a practice of including the community on copyright notices of artistic works:

©Banduk Marika, 1998. This work and documentation is the copyright of the artist and may not be reproduced in any form without the permission of the artist and the clan concerned.[10]

The right of attribution in all works continues for the period of copyright, which is 50 years after the death of the author.[11]

This right is seen as important to Indigenous people who claim the same basis for belonging to their artwork, images and knowledge being as they claim for their belonging to land. However, the fact that the right lasts only for fifty years after the death of the author is a concern. Many Indigenous artists and creators consider this is insufficient for cultural material, as rights to culture last forever.

ii) The right not to be falsely attributed as the author

An author has the right not to have authorship of a work falsely attributed.[12] The following acts constitute acts of false attribution in relation to literary, dramatic and musical works:

• inserting or affixing or authorising the inserting or affixing of a person's name in or on a work, or in or on a reproduction of the work in such as way as to falsely imply that the person is the author of the work or the author of the adaptation;
• dealing with a work with a person’s name so inserted or affixed, if the person attributing knew that the person is not the author of the work, or that the work is not an adaptation of the so attributed author; and
• performing in public or transmitting the work, if the person attributing knows that the person is not the author of the work or that the work is not an adaptation of the author.

Similar acts of false attribution exist in relation to artistic works and films.

It is also false attribution to deal with an altered literary, dramatic, musical or artistic work, or reproduction of the work, as if it were unaltered, knowing that the work or reproduction is in fact altered.

iii) The right of integrity

The author has the right of integrity of authorship in respect of the work.[13] This right provides that an artist may bring an action if the work is subjected to derogatory treatment.

‘Derogatory treatment’ in respect of an artistic work includes ‘the doing, in relation to the work, of anything that results in a material distortion of, the destruction or mutilation of, or material alteration to, the work that is prejudicial to the author’s honour or reputation’; or ‘an exhibition in public of the work that is prejudicial to the author’s honour or reputation because of the manner or place in which the exhibition occurs’.[14] The right of integrity is not infringed if it is subjected to derogatory treatment and it can be proved that the treatment was reasonable in all the circumstances, or if the author consented to the treatment.

The right of integrity, including the right to bring an action for infringement, is an important development in protecting the integrity of Indigenous work. For artistic works, the artist may be able to object to the manner or place in which his or her work is exhibited, or where a work is altered in a derogatory manner.

The right of integrity would provide redress to many Indigenous artists given that preserving the overall integrity of the work and underlying ritual knowledge is paramount. In M*, Banduk Marika & Others v Indofurn,[15] Tim P*(now deceased), whose artwork Kangaroo and Shield People Dreaming was altered significantly and reproduced on a carpet, observed:

...an important part of the story being told in the painting concerns the main creation story of my tribe... It is not right for my painting to be copied for commercial purposes onto carpets. It is also not right for my painting to be copied in a way where part of it has been altered and part of the painting left out. I am happy for people to learn about my culture and heritage, and the accurate reproduction of the painting for the purposes of education and cultural exchange is appropriate. I wish the court to know that I am very upset about the copying of my painting on carpets....[16]

Under the new laws, Tim P* could have argued an additional claim against the respondents for infringement of the right of integrity in that reproduction in such a manner was derogatory.

Remedies

The Moral Rights Act provides for a number of specific remedies for a successful action, including:

• an injunction imposed by the court;
• damages for loss resulting from the infringement;
• a declaration that a moral right has been infringed;
• an order for a public apology;
• an order that the false attribution or derogatory treatment be removed or reversed.[17]

In my experience, many Indigenous artists want a public apology to preserve their reputations. A recent dispute where a t-shirt manufacturer copied rock art without permission – the apology was published in a major Australian paper.

The right to protect integrity and to be attributed for cultural material is a human right. New laws for moral rights, enacted under the Copyright Act 1968 (Cth), in accordance with Australia’s obligations under the Berne Convention, have been a means of realising certain rights that might be regarded as better recognised in the human rights arena.

Some commentators have noted that the moral rights provisions in copyright law ‘has received inadequate attention to date’.[18] According to a discussion paper published by the Centre for International Environment Law, Using Intellectual Property as a Tool to Protect Traditional Knowledge: Recommendations for Next Steps:

This concept could be a model for IPR measures that would enable communities to require acknowledgement of the contribution of their traditional knowledge and associated resources to inventions and scientific research.[19]

More detailed comment on whether the interests of Indigenous Australians are furthered by the new moral rights regime will have to wait until the laws are tested in the court. There are still several issues that remain unaddressed and in need of further consideration in Australian law and policy.

Collective Ownership

Moral rights only vest in individual copyright owners.[20] The collective ownership of rights is not adequately recognised. The judgment in Bulun Bulun v R & T Textiles[21] recognised that a fiduciary duty exists between the artist and the Ganalbingu people. This decision recognises an individual cause of action against an infringer in a person other than the artist if the artist is unwilling or unable to bring an action on their own behalf. It may be possible, if sufficient notice is given, for Indigenous clan representatives to also take moral rights actions.

Senator Aden Ridgeway proposed the following amendment to the Copyright Amendment (Moral Rights) Act 2000 (Cth) prior to its passage through Parliament:

190 Moral rights conferred on individuals

Subject to s190A, only individuals have moral rights.

190A Moral rights in relation to Australian indigenous cultural work

1. Moral rights in relation to an Australian cultural work created by an indigenous author, under the direction of an indigenous cultural group, may be held and asserted by a custodian nominated by the relevant indigenous cultural group as its representative for the purposes of this Part.

2. In this Part, for the purposes of its application to Australian indigenous cultural works, a reference to an author is to be taken as a reference to a custodian nominated under subsection (1).

Although this amendment was not successful, it remains a useful model for future amendments to the Copyright Act 1968 (Cth).

Must be a Copyright Work for Protection

Moral rights only apply to copyright works. Indigenous cultural works, like some rock art and works of antiquity, are not protected by copyright and no moral rights in them can be asserted. Furthermore, the moral rights provisions, like copyright generally, apply for a limited period. The right of integrity in works other than film continues for the duration of the copyright; that is, 50 years after the death of the author. The right of integrity in a film lasts until the death of the author. For Indigenous peoples, the rights of integrity and attribution to works of important cultural significance last in perpetuity.

It is hoped that the new moral rights legislation will provide some improvements in the protection of Indigenous cultural and intellectual property but they should be seen as just a small part of a greater system of protection. The Our Culture Our Future Report sets out a list of rights that Indigenous Australians require in order to adequately maintain and protect their cultural and intellectual property. The Report also includes a range of proposals, including developing new and amending legislation; administrative, monitoirng and collections systems; and cultural infrastructure, protocols and codes of ethics.

Terri Janke is a Sydney lawyer.

[1] Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886 and amended on September 28, 1979.

[2] The Rome Conference on the Berne Convention introduced moral rights under article 6bis of the Convention.

[3]. See Delia Browne, ‘The Age of Consent – Moral Rights in Film and Television’ in Matthew Alderson, Current Legal Issues in Film and Television, Prospect Media, Sydney, 2001, page 2.

[4] Ibid

[5] Copyright Act 1968 (Cth) s 193(1).

[6] Copyright Act 1968 (Cth) s 194(2).

[7] Copyright Act 1968 (Cth) s 194AA.

[8] Copyright Act 1968 (Cth) s 195AB.

[9] Copyright Act 1968 (Cth) s 195(2) provides that if the author of a work has made known either generally or to a person who is required under this Part to identify the author, that the author wishes to be identified in a particular way, and the identification of the author in that way is reasonable in the circumstances, the identification is to be made in that way.

[10] Interview with Diane Blake, Buku-Larrnggay Mulka Arts Centre, Yirrkala, 31 July 2000.

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

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

[13] Copyright Act 1968 (Cth) s 195AI.

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

[15] [1994] FCA 975; (1994) 130 ALR 659.

[16] Ibid 678.

[17] For a full list of rights to remedies in the general law, see Terri Janke, Our Culture: Our Future - Report on Australian Indigenous Cultural and Intellectual Property Rights (1998) 47 – 48.

[18] David Downes for the Centre for International Environment Law, Using Intellectual Property as a Tool to Protect Traditional Knowledge: Recommendations for Next Steps (1997) 19.

[19] Ibid.

[20] Copyright Act 1968 (Cth) s 90 .

[21] [1998] 1082 FCA (Unreported, von Doussa J, 3 September 1998).