Moral rights and other copyright issues
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Moral rights are not strictly speaking copyright, but are granted by Part IX of the Copyright Act. They are intended to protect the non-economic aspect of a creator’s interest in their work, including the creator’s reputation and sense of continuing connection with their work. Moral rights belong to the author of a work, to the director, producer and screenwriter of a film, and to performers of live or recorded performances, regardless of who owns the copyright.
Moral rights are:
the right to be identified as the author of the work or film, or as a performer of a musical performance, in a clear and reasonably prominent form;
the right not to have the authorship of the work or film, or the identity of a performer of a performance, falsely attributed to someone else; and
the right not to have the work, film or performance subjected to derogatory treatment. This is the distortion, mutilation or material alteration of the work, film or performance (or, for works and films only, doing anything else) that is prejudicial to the author’s honour or reputation (right of integrity). Derogatory treatment does not include criticism of the ideas or information in a work if the work is unchanged.
Artists have extra rights against destruction of their work and public exhibition that is prejudicial to their honour or reputation.
Without moral rights, a person who owns a painting would have the right to destroy it or alter it. Similarly, even if an author has assigned copyright in a novel to a publisher, moral rights may prevent the novel being published in a way the author finds objectionable, such as in an abridged edition or with a pornographic cover.
The author’s right of integrity in a film lasts for the lifetime of the person entitled to exercise the rights. All other moral rights in works and films last for the duration of copyright.
Defences to a moral rights infringement include if the author consents or if the failure is reasonable (except for false attribution). For example, it is usually reasonable to not identify an employee author of a business document, but it is difficult to decide what is reasonable if the work has a serious artistic purpose. For this reason, writers, artists and film makers may be asked to consent to a wide class of acts that might otherwise infringe their moral rights.
The remedies for infringement of moral rights include an order to cease the infringement, payment of damages and apologising publicly. Infringing moral rights is not a criminal offence.
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Part XIA of the Copyright Act contains provisions protecting people who give live dramatic, musical, dance or circus performances, or live recitals of literary works, from the unauthorised recording (sound or film), broadcasting or other electronic transmission to the public of their performances. Provided that the person knows, or ought reasonably to know, that the recording is unauthorised, making a copy of an unauthorised recording, or causing an unauthorised recording to be performed in public, as well as commercial dealings with unauthorised recordings of live performances, also infringe performers’ protection.
The performance need not have an audience to be protected. It does not matter if the unauthorised recording or broadcast is made directly from the performance, or from an unauthorised recording of it.
Broadcasting an authorised recording of a live performance is not an infringement of performers’ protection (although it may infringe copyright in the recording). If you permit someone to record your performance, you cannot rely on performers’ protection to control how they use the recording.
Performers’ protection normally lasts for 20 years from the end of the year in which the performance took place. However, performers can take action about unauthorised sound recordings of a live performance for 50 years from the end of the year in which the performance took place.
There are many circumstances where recording broadcasts of live performances are permitted. Most mirror circumstances in which copying of copyright material is permitted (e.g. for educational purposes, criticism or review). You may also record broadcasts of live performances for private use at a more convenient time without infringing performers’ protection (see ‘Timeshifting’, above). The civil and criminal consequences of infringing performers’ protection are similar to those for infringement of copyright.
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To identify parties to copyright treaties, see the World Intellectual Property Organization’s website (www.wipo.int/treaties/en/). Australia, like almost all commercially significant countries, is a signatory to the Berne Convention (1886) (‘Berne’) and to other international copyright conventions. Berne requires each member state to extend its copyright protection (i.e. the copyright protection afforded to local works) to works created in the other member states (see Copyright Act s 184; Copyright (International Protection) Regulations 1969 (Cth)). For example, The Lord of the Rings, written by UK resident JRR Tolkien, is covered by Australian copyright law as if an Australian resident had written the book. However, copyright laws differ between countries. For example, it is possible that a book may be out of copyright in Australia but still in copyright overseas.
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Copyright issues relating to creating websites and downloading and using material from the internet are discussed in Chapter 7.5: The internet and the law.
Moral rights and other copyright issues
Chapter: 7.6: Copyright
Contributor: Margaret Ryan, Lawyer and Trade Marks Attorney, IP by Margaret®
Current as of: 1 September 2024
Law Handbook Page: 683
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