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1998-1999-2000
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
COPYRIGHT
AMENDMENT (MORAL RIGHTS) BILL
1999
REVISED
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Attorney-General,
the Honourable Daryl
Williams AM QC MP)
THIS
MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY
THE
HOUSE OF REPRESENTATIVES TO THE BILL AS
INTRODUCED
ISBN: 0642 453748
COPYRIGHT AMENDMENT (MORAL RIGHTS) BILL 1999
OUTLINE
This Bill introduces comprehensive moral rights provisions for authors of copyright works and films. Moral rights differ from the bundle of rights that constitute copyright in a work in that they are personal and not economic rights.
The Bill gives full and proper effect to Australia’s obligations under article 6bis of the Berne Convention for the Protection of Literary and Artistic Works.
The moral rights provided for by the Bill will apply to
authors of all works covered by the Berne Convention, that is, 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.
The Bill provides for three moral
rights: an author’s right to be identified as the author of a work (the
right of attribution of authorship); the right of an author to take action
against false attribution (the right not to have authorship of a work falsely
attributed); and an author’s right to object to derogatory treatment of
his or her work which prejudicially affects his or her honour or reputation (the
right of integrity of authorship of a work).
The
Bill provides that the moral rights continue in force until the copyright ceases
to subsist in the work, except for the right of integrity in cinematograph
films, which lasts until the death of the authors. For most works copyright
lasts for the life of the author plus 50 years or, in the case of a film, 50
years from the end of the year in which the film was first published.
The general approach adopted in the Bill is to provide for exceptions to the right of attribution and the right of integrity based on a standard of reasonableness. In other words, the onus is on the defendant to show that it was reasonable in the circumstances not to identify the author or to subject the work to derogatory treatment. A list of factors are specified in each instance for courts to take into account in determining whether the breach of the right of attribution or the right of integrity was reasonable in the particular circumstances.
It is recognised that there may be occasions when an author will decide not to exercise and enforce some or all of his or her moral rights. In this case, the Bill provides that an author may give written consent to any or all acts or omissions that would otherwise constitute an infringement of their moral rights. Consequently the Bill allows a written consent to range from a specific consent to a comprehensive consent. It is not necessary to specify the actions or omissions to a work that are consented to under a comprehensive consent. This written consent may be in relation to works that are in existence, in progress or yet to be commenced. The Bill also allows written consent to be given to past acts or omissions that would otherwise constitute an infringement of the moral rights of the author.
The Bill sets out the relief that a court may grant in the case of infringement of moral rights. The remedies include an injunction, damages, a declaration, an order that the defendant make a public apology for the infringement, and an order that any false attribution of authorship, or derogatory treatment, of the work be removed or reversed. In deciding whether to grant an injunction the court must take into account whether the parties have undertaken negotiation or mediation in order to settle their dispute.
Background
Schedule 1 inserts a new Part IX into the Act to introduce comprehensive moral rights for creators of copyright works and films. The legislation results from public consultation and consideration of comments on the draft legislation introduced as part of the Copyright Amendment Bill 1997, but withdrawn from that Bill before its passage in 1998. That legislation was itself based on the 1994 Discussion Paper, Proposed Moral Rights Legislation for Copyright Creators, that was released by the former Government and outlined a proposed legislative framework for moral rights. Schedule 1 also incorporates amendments that were carried in the House of Representatives and which were moved by the Government following consideration of comments received after the Bill was introduced there on 8 December 1999.
Part IX of the Act presently contains provisions dealing with false attribution of the authorship of works. The duties owed to the author of a work include: a duty not to falsely attribute authorship of a work (s. 190); a duty not to falsely attribute authorship of an altered work (s. 191); and a duty not to falsely attribute the authorship of a reproduction of an artistic work (s. 192). Part IX does not, however, expressly require recognition or attribution of authorship. Also, Part IX refers only to works; it does not cover cinematograph films.
There is also some indirect protection of the right of attribution in ss. 41 and 42 of the Act in relation to fair dealing with works. Fair dealing for the purposes of criticism and review and reporting of news is not an infringement of copyright if, among other things, ‘a sufficient acknowledgment of the work is made’. Section 44(1), which concerns the use of extracts of works included in collections for use by places of education, and s. 45, regarding reading or recitation in public or for a broadcast, also give similar recognition to the right of acknowledgment.
The right of integrity of authorship is not specifically
recognised by the Act, although there are some isolated provisions that are
relevant. These provisions cover the right of an author of photographs
commissioned for private or domestic purposes, commissioned paintings or
drawings of portraits, and commissioned engravings in relation to uses of the
work for purposes other than that for which the work was commissioned (s.
35(5)); and adaptations of a musical work which debase the work
(s. 55(2)).
FINANCIAL IMPACT
STATEMENT
The amendments should not have direct
financial impact on Commonwealth expenditure or revenue.
Contents
Paragraphs
1. Short
title 1
2. Commencement 2-3
3. Schedule
1 5-112
4. Schedule 2 113
NOTES ON CLAUSES
Clause 1 - Short Title
1. When enacted, this Bill will be cited as the Copyright Amendment (Moral Rights) Act 1999.
Clause 2 - Commencement
2. The clause provides that the Act, with the exception of Schedule 2, will come into operation on the day it receives Royal Assent.
3. Schedule 2 contains amendments to terms that are used in Schedule 1; the amendments are consequential on the entry into force of the Copyright Amendment (Digital Agenda) Act 2000. Schedule 2 will commence only if, and when, the Copyright Amendment (Digital Agenda) Act 2000 enters into force. If that Act has already entered into force, Schedule 2 will commence immediately after Schedule 1.
Clause 3 - Schedules
4. By virtue of this clause the provisions in the Copyright Act 1968 (hereinafter called the Act) are amended or repealed as set out in the legislation.
Item 1 - Part IX
5. Item 1 repeals the present Part IX of the Act and substitutes a new Part IX - ‘Moral rights of authors of literary, dramatic, musical or artistic works and cinematograph films’. The new Part IX comprises 8 new Divisions.
Division 1 - Preliminary
New s. 189 - Definitions
6. New s. 189 sets out a number of key definitions that apply in relation to the new Part IX. Some of the terms used in new Part IX have a different meaning elsewhere in the Act.
7. In new s. 189 each category of work is defined to mean a work in which copyright subsists. This is to make it clear that moral rights as provided for under the new Part will only apply to works in which copyright subsists and which are not in the public domain.
8. In new s. 189 an ‘author’ in relation to a cinematograph film is defined to mean its ‘maker’ which is defined as the director, the producer and the screenwriter of the film. This gives effect to the Government’s decision that the director, the producer and the screenwriter of a film will be accorded moral rights as the key creative contributors to a film. The terms ‘director’, ‘producer’ and ‘screenwriter’ are defined in new s. 189 by reference to new s. 191.
9. A ‘cinematograph film’ is defined to mean the complete and final version so that moral rights will not apply in relation to unfinished versions of the film. Examples of what would be regarded by the industry as ‘the complete and final version’ are: the answer print or trial print from the original negative or the internegative, as accepted by the producer; and, in the case of a production on tape, the on-line master with sound restripe, as accepted by the producer.
10. The term ‘moral right’ is defined to mean a right of attribution of authorship; a right not to have authorship falsely attributed; or a right of integrity of authorship. These three rights are in turn defined by reference to new Divisions 2, 3 and 4 respectively. The term ‘work’ refers to a literary, dramatic musical or artistic work or a cinematograph film, for the purposes of new Part IX.
11. The term ‘deal’ is defined to mean sell, let for hire, by way of trade offer or expose for sale or hire, exhibit in public, or distribute and, in Division 3, includes publish.
12. New s. 189 defines ‘transmit’, in relation to works and films, to mean broadcast or to cause to be transmitted to subscribers to a diffusion service. Upon entry into force of the Copyright Amendment (Digital Agenda) Act 2000, Schedule 2 of this Bill replaces all references to ‘transmit’ in this new Part with the term ‘communicate to the public’ which is the term used in the Copyright Amendment (Digital Agenda) Act 2000 to encompass the acts covered by ‘transmit’.
13. New s. 189 defines ‘infringing article’ as the original of a work or film, a reproduction of a work or a copy of a film that has been subject to an infringement of a moral right. In the event that the moral right that is infringed is the right of integrity, then the definition refers only to such infringement as results in a material distortion or alteration of, or the mutilation of, the work or film.
14. New s. 189 includes a definition of ‘person representing the author’ in relation to any possible infringement of moral rights. The effect of the definition is that such person is either the legal personal representative of a dead author or the legal administrator of the affairs of an author, as permitted by new s. 195AN(1) and (2) in the Bill.
New s. 190 - Moral rights conferred on individuals
15. New s. 190 confirms that moral rights are conferred only on individuals. By implication from new s. 191(3), corporate bodies do not have moral rights under the new Part IX.
New s. 191 - Director, producer and screenwriter of cinematograph film
16. New s. 191 confirms that moral rights apply only to the
principal director (new s. 191(1)), the principal producer (new s. 191(2)) and
the principal screenwriter (new
s. 191(4)) of a film.
New s. 191(3) confirms that as only individuals have moral rights (new s. 190),
if the producer of a film is a body corporate the only moral rights in respect
of the film are those of the director and screenwriter.
17. The note at the end of new s. 191(4) makes reference to ss. 195AZJ, 195AZK and 195AZL where there are two or more principal directors, two or more principal producers or two or more principal screenwriters of a film.
New s. 192 - Rights to be additional to other rights
18. New s. 192 confirms that moral rights are in addition to, and separate from, any other rights, economic or otherwise, that an author or other person has under the Act.
Division 2 - Right of attribution of authorship
19. Division 2 sets out the circumstances in which the right of attribution of authorship arises and the nature of the right.
New s. 193 - Author’s right of attribution of authorship
20. New s. 193 provides that an author has a right of attribution of authorship in respect of his or her work. The author’s right is to be identified, in accordance with new Division 2, if any attributable act (defined in new s. 194) is done in respect of his or her work or film.
New s. 194 - Acts giving rise to right of attribution of authorship
21. New s. 194 provides for the attributable acts giving rise to the right of attribution of authorship in relation to literary, dramatic or musical works (new s. 194(1)); artistic works (new s. 194(2)); and cinematograph films (new s. 194(3)). The attributable acts basically consist of the exercise of the economic rights of copyright provided for in s.31 and s.86 of the Act. For example, in relation to a cinematograph film the director, the producer and the screenwriter should be identified whenever the film is copied, exhibited in public or transmitted.
22. New s. 194(2) provides for an additional attributable act in relation to an artistic work for which there is no equivalent economic right under the Act, namely, where a work is exhibited to the public.
New s. 195 - Nature of the identification of author
23. New s. 195 provides for the nature and manner of identification of an author. An author may be identified by any reasonable form of identification (new s. 195(1)). New s. 195(2) provides for the case where an author has made known the particular way in which he or she is to be identified. If it is reasonable in the circumstances, the identification is to be made in that way.
New s. 195AA - Identification of author to be clear and reasonably prominent
24. New s. 195AA provides that the identification of the author must be clear and reasonably prominent.
New s. 195AB - What is a reasonably prominent identification
25. New s. 195AB provides for guidance on what is considered reasonably prominent identification. When a work is reproduced in a material form, an adaptation of a work is made or a copy of a film is made, an identification of the author is taken to be reasonably prominent if it is included on each reproduction of the work or of the adaptation or each copy of the film, so that the person acquiring the reproduction or copy has notice of the author’s identity.
Division 3 - Right not to have authorship of a work falsely attributed
26. Division 3 contains the amendments in relation to an author’s right not to have authorship of a work falsely attributed. The amendments essentially replace, with modification, the provisions in relation to false attribution of works that are found in the present Part IX of the Act.
New s. 195AC - Author’s right not to have authorship falsely attributed
27. New s. 195AC(1) provides that the author of a work has a right not to have authorship of the work falsely attributed.
28. New s. 195AC(2) provides for the nature of the right. That is, an author has a right not to have a person, ie, the attributor, do any of the acts of false attribution set out in the following provisions of the Division.
New s. 195AD - Acts of false attribution of authorship of a literary, dramatic or musical work
29. New s. 195AD(a) provides that it is an act of false attribution in relation to a literary, dramatic or musical work to insert or affix a person’s name in or on a work, or in or on a reproduction of the work, or to authorise such action, in a way which implies falsely that the person is the author or an author of the work or that the work is an adaptation of a work of the person.
30. New s. 195AD(b) and (c) provide that it is also an act of false attribution to commercially deal (ie, sell, let for hire, by way of trade offer or expose for sale or hire, exhibit in public, distribute, or publish - see definition of ‘deal’ in new s. 189) with the work or a reproduction of the work with a person’s name inserted in or affixed to it, if the attributor (ie, the person doing the dealing - see new s. 195AC(2)) knows that the person is not an author of the work or that the work is not an adaptation of a work of the person.
31. New s. 195AD(d) provides that it is also an act of false attribution to perform in public or transmit the work as being a work, or adaptation of a work, of a person if the attributor (ie, the person performing or transmitting the work - see new s. 195AC(2)) knows that the person is not an author of the work or that the work is not an adaptation of a work of the person.
New s. 195AE - Acts of false attribution of authorship of artistic work
32. New s. 195AE(2)(a) provides that it is an act of false attribution in relation to the author of an artistic work to insert or affix a person’s name in or on the work, or to use a person’s name in connection with the work, or on a reproduction of the work, in a way which implies falsely that the person is an author of the work. This would cover the situation where a person’s name is placed near to, in addition to in or on, the work in such a way as to imply falsely that the person is an author of the work.
33. New s. 195AE(2)(b) and (c) provide that it is also an act of false attribution to commercially deal (ie, sell, let for hire, by way of trade offer or expose for sale or hire, exhibit in public, distribute, or publish - see new s. 189) with the work or a reproduction of the work with a person’s name inserted in or affixed to it, if the attributor (ie, the dealer - see new s. 195AC(2)) knows that the person is not an author of the work.
34. New s. 195AE(2)(d) provides that it is also an act of false attribution to transmit the work as being a work of a person if the attributor (ie, the person transmitting the work - see new s. 195AC(2)) knows that the person is not an author of the work.
New s. 195AF - Acts of false attribution of authorship of cinematograph film
35. New s. 195AF(2)(a) provides for acts of false attribution in relation to the director, the producer or the screenwriter, as the case may be, of a cinematograph film. The new provision provides that it is an act of false attribution in relation to the director, the producer or the screenwriter to insert or affix a person’s name on the film, or in or on a copy of the film, in a way which implies falsely that the person is the director, the producer or the screenwriter, as the case may be, of the film.
36. New s. 195AF(2)(b) provides that it is also an act of false attribution to commercially deal (ie, sell, let for hire, by way of trade offer or expose for sale or hire, exhibit in public, distribute, or publish - see new s. 189) with the film, or a copy of the film, if a person’s name has been inserted or affixed on it, and the attributor (ie, the dealer - see new s. 195AC(2)) knows that the person is not the director, the producer or the screenwriter, as the case may be, of the film.
37. New s. 195AF(2)(c) provides that it is also an act of false attribution to transmit the film as being a film of which a person is the director, the producer or the screenwriter if the attributor (ie, the person transmitting the film - see new s. 195AC(2)) knows that the person is not the producer, the director or the screenwriter, as the case may be, of the film.
New s. 195AG - Acts of false attribution of authorship of altered literary, dramatic, musical or artistic work
38. New s. 195AG(1) provides that where a work has been altered by a person other than the author, it is an act of false attribution to commercially deal with the altered work, or a reproduction, as being the unaltered work of the author if the attributor (ie, the dealer - see new s. 195AC(2)) has knowledge that it was not the unaltered work of the author. This provision is based on the present s. 191 of the Act.
39. New s. 195AG(2) provides that s. 195AG(1) does not apply if the alteration was only insubstantial or the alteration was required to comply with the law or was necessary to avoid a breach of the law (eg, defamation).
New s. 195AH - Act of false attribution of authorship of altered cinematograph film
40. New s. 195AH(1) provides that where a film has been altered by a person other than the director, the producer or the screenwriter, it is an act of false attribution in relation to the director, the producer and the screenwriter to commercially deal with the altered copy of the film, as being the unaltered film, if the attributor (ie, the dealer - see new s. 195AC(2)) has knowledge that it was not the unaltered film. This provision is based on the present s. 191 of the Act, although that provision does not apply to cinematograph films.
41. New s. 195AH(2) provides that s. 195AH(1) does not apply if the alteration was only insubstantial or the alteration was required to comply with the law or was necessary to avoid a breach of the law (eg, defamation).
Division 4 - Right of integrity of authorship of a work
42. Division 4 gives effect to the second moral right referred to in article 6bis of the Berne Convention, that is, the right of an author to object to any distortion, mutilation or other modification of, or derogatory treatment in relation to, his or her work that would be prejudicial to his or her honour or reputation.
New s. 195AI - Author’s right of integrity of authorship
43. New s. 195AI provides that the author of a work has a right of integrity of authorship in respect of the work. The author’s right is not to have the work subjected to derogatory treatment (new s. 195AI(2)).
New s. 195AJ - Derogatory treatment of literary, dramatic or musical work
44. The term ‘derogatory treatment’ is defined in new s. 195AJ in relation to a literary, dramatic or musical work. Essentially derogatory treatment is the doing of anything, in relation to the work, that results in a material distortion of, the mutilation of, or a material alteration to, the work itself that is prejudicial to the author’s honour or reputation. Additionally, under new s. 195AJ(b) it is the doing of anything else in relation to the work that is prejudicial to the author’s honour or reputation. This latter part of the definition is intended to address those instances where a work is used in an inappropriate context and prejudices the author’s honour or reputation.
New s. 195AK - Derogatory treatment of artistic work
45. New s. 195AK provides for the meaning of ‘derogatory treatment’ in relation to an artistic work. Essentially derogatory treatment is the doing of anything, in relation to the work, that results in a material distortion of, the destruction or mutilation of, or a material alteration to, the work itself that is prejudicial to the author’s honour or reputation. In addition, under new s. 195AK(b) derogatory treatment means the exhibition of the work in public that is prejudicial to the author’s honour or reputation because of the manner or place in which the exhibition occurs. Under new s. 195AK(c) it is also the doing of anything else in relation to the work that is prejudicial to the author’s honour or reputation. This latter part of the definition is intended to address those instances where a work is used in an inappropriate context and prejudices the author’s honour or reputation.
New s. 195AL - Derogatory treatment of cinematograph film
46. The term ‘derogatory treatment’ is separately defined in relation to a cinematograph film in new s. 195AL. Essentially derogatory treatment is the doing of anything, in relation to the film, that results in a material distortion of, the mutilation of, or a material alteration to, the film itself that is prejudicial to the honour or reputation of the maker (ie, director, producer and screenwriter - see new s. 189). Under new s. 195AL(b) it is also the doing of anything else in relation to the film that is prejudicial to the honour or reputation of the director, producer or screenwriter. This latter part of the definition is intended to address those instances where a film is used in an inappropriate context that prejudices the honour or reputation of the director, producer or screenwriter.
Division 5 - Duration and exercise of moral rights
47. Division 5 provides for the duration of each moral right and the conditions under which moral rights can be exercised.
New s. 195AM - Duration of moral rights
48. In relation to an author’s right of integrity of
authorship in a cinematograph film, new s. 195AM(1) provides that this right
will continue until the death of the author. New s. 195AM(2) provides that an
author’s right of integrity of authorship in works other than films lasts
until the expiration of copyright in the works. New
s. 195AM(3) provides that the right of attribution and
the right not to have a work falsely attributed in respect of all works will
both continue until the expiration of copyright in the works.
New s. 195AN - Exercise of moral rights
49. New s. 195AN(1) provides that if an author of a work dies, the author’s moral rights (other than the right of integrity of authorship in cinematograph films) may be exercised and enforced by his or her legal representative. As the right of integrity of authorship in films ceases upon the death of the author (see new s. 195AM(1)), the legal personal representative or the person administering his or her affairs upon the death of the author of a film can only exercise the right of attribution and the right to not have a work falsely attributed.
50. New s. 195AN(2) provides that if the affairs of the author of a work are, in his or her lifetime, lawfully administered by another person (except in the case of an author becoming bankrupt), then the author’s moral rights may be exercised and enforced by the person administering his or her affairs. In the case where an author becomes bankrupt, by virtue of the personal nature of moral rights the bankrupt author retains the right to exercise and enforce his or her moral rights.
51. Other than in these situations, new s. 195AN(3) provides that moral rights are not transmissible by assignment, by will or by operation of law. This confirms the personal nature of moral rights and that they are different from the economic rights of a copyright owner, which are transferable.
52. New s. 195AN(4) provides that, in circumstances where there is more than one author of a work or more than one maker of a film (eg, screenwriter, producer and director are different persons), the joint authors or the film-makers may enter into a co-authorship agreement that provides that the joint authors or the film-makers may only exercise their individual rights of integrity of authorship jointly.
53. New s. 195AN(5) provides that if a co-authorship agreement is entered into as provided for in new s. 195AN(4), then such a co-authorship agreement will have effect according to its terms. In other words, a joint author who has entered into a co-authorship agreement will be able to exercise his or her right of integrity of authorship only together with the other joint authors.
Division 6 - Infringement of moral rights
54. Division 6 sets out the circumstances in which each of the moral rights will be infringed and the exceptions to infringement.
New s. 195AO - Infringement of right of attribution of authorship
55. New s. 195AO provides that a person infringes an author’s right of attribution of authorship if a person does or authorises someone else to do one of the attributable acts (referred to in new s. 194) in respect of the work without the identification of the author in accordance with Division 2. This provision is subject to other provisions in the Division.
New s. 195AP - Infringement of right not to have authorship falsely attributed
56. New s. 195AP provides that a person infringes an author’s right not to have authorship of a work falsely attributed if the person does an act of false attribution (see Division 3) in relation to the work.
New s. 195AQ - Infringement of right of integrity of authorship
57. New s. 195AQ(2) provides that a person infringes an author’s right of integrity if the person subjects or authorises someone else to subject an author’s work to derogatory treatment (see Division 4).
58. The purpose of new s. 195AQ(3)-(5) is to provide an affected author (or in the case of a film the director, producer and screenwriter) with a right to prevent further use or distribution of the offending version of the work or film.
59. New s. 195AQ(3) provides, in relation to a literary, dramatic or musical work, that if the work has been subjected to derogatory treatment within new s. 195AJ(a) (ie, material distortion of, mutilation of, or material alteration to, the work) that infringes the author’s right of integrity, new s. 195AQ(3) provides that a person also infringes the author’s right of integrity in respect of the work if the person reproduces, publishes, performs, transmits or makes an adaptation of the work as derogatorily treated.
60. New s. 195AQ(4) provides, in relation to an artistic work, that if the work has been subjected to derogatory treatment within new s. 195AK(a) (ie, material distortion of, mutilation of, or material alteration to, the work) that infringes the author’s right of integrity, a person also infringes the author’s right of integrity in respect of the work if the person reproduces, publishes or transmits the work in the derogatorily treated form.
61. New s. 195AQ(5) provides, in relation to a cinematograph film, that if the film has been subjected to derogatory treatment within new s. 195AL(a) (ie, material distortion of, mutilation of, or material alteration to, the film) that infringes the director, producer or screenwriter’s right of integrity, a person also infringes the director, producer and screenwriter’s right of integrity in respect of the film if the person makes a copy of, exhibits or transmits the film in the derogatorily treated form.
New s. 195AR - No infringement of right of attribution of authorship if it was reasonable not to identify the author
62. New s. 195AR sets out the circumstances where a failure to identify the author of a work or film will not be an infringement of the author’s moral right of attribution.
63. New s. 195AR(1) provides that a person who does or authorises someone else to do an attributable act (see new s. 194) in respect of a work does not, if the author of the work is not identified, infringe the author’s right of attribution, if the person establishes that it was reasonable in the circumstances not to identify the author.
64. New s. 195AR(2) then sets out matters to be taken into account in determining whether it was reasonable in the circumstances not to identify the author of a literary, dramatic, musical or artistic work. These matters include: the nature of the work; the purpose for which the work is used; the manner in which the work is used; the context in which the work is used; any relevant industry practice; any relevant industry practice contained in a voluntary code of practice; any difficulty or expense that would have been incurred to identify the author; and whether the work was made in the course of the author’s employment.
65. There are similar matters listed in new s. 195AR(3) in relation to non-attribution of a cinematograph film. There is also an additional factor of whether the primary purpose for which the film was made was for exhibition at cinemas, for broadcasting by television or for some other purpose (new s. 195AR(3)(b)). For example, it may be reasonable not to attribute authorship of one of the makers of an in-house training film but unreasonable in the case of a film that was made for exhibition at cinemas.
New s. 195AS - No infringement of right of integrity of authorship if derogatory treatment or other action was reasonable
66. New s. 195AS(1) provides, in a similar way to new s. 195AR, that a person does not infringe the author’s right of integrity of authorship if the person establishes that it was reasonable in all the circumstances to subject the work or authorise it to be subjected to the derogatory treatment.
67. New s. 195AS(2) provides for the matters to be taken into account in determining whether it was reasonable in the circumstances to subject the work to derogatory treatment. The matters include: the nature of the work; the purpose for which the work is used; the manner in which the work is used; the context in which the work is used; any relevant industry practice; any relevant industry practice contained in a voluntary code of practice; whether the work was made in the course of the author’s employment; and whether the treatment was required by law or was necessary to avoid a breach of the law. In relation to this last factor, classification, obscenity, consumer protection, defamation, national security laws and sub judice (eg, the release of a film that involves subject matter that would be prejudicial to a criminal trial) are all examples of laws that may require changes to a work that would otherwise infringe the author’s right of integrity. This factor, like the other factors in this section, is not stated in absolute terms. It would therefore be necessary for each defendant to show that their derogatory treatment of the work was reasonable in the light of these laws. Changes made under the colour of legal compulsion would not be justified if they went beyond what was reasonably necessary for this purpose.
68. New s. 195AS(3) sets out similar matters in relation to whether derogatory treatment of a cinematograph film was reasonable in all the circumstances. There is also an additional factor of whether the primary purpose for which the film was made was for exhibition at cinemas, broadcasting by television or some other purpose (new s. 195AS(3)(b)). For example, if a film is made for television, it may be reasonable to insert advertisements at intervals throughout the broadcast of the film in a way that may not be reasonable to do to when broadcasting a film made for cinema release.
69. New s. 195AS(4) provides for the availability of a ‘reasonableness’ defence in respect of any act referred to in new s. 195AQ(3), (4) and (5) (eg, reproduction, publication or transmission of a derogatorily treated work). No considerations are, however, prescribed for determining whether any such act was reasonable.
New s. 195AT - Certain treatment of works not to constitute an infringement of the author’s right of integrity of authorship
70. New s. 195AT(1) provides that the destruction of a moveable artistic work is not an infringement of the author’s right of integrity of authorship if the author or person representing the author was given a reasonable opportunity to remove the work first.
71. New s. 195AT(2) provides that that a change in or relocation, demolition or destruction of a building will not infringe the moral right of integrity of the author of an artistic work that is affixed to or forms part of the building, if the owner of the building does certain things before that action is taken. First, the owner must make reasonable enquiries to identify and locate the author or person representing the author as defined in new s. 189. Next, only if such enquiries are successful must the building owner then give the author or other person notice of the proposed action to the building and that the person notified has 3 weeks to ask for access to the artistic work in the building. Finally, if requested by the author or other person within the 3 weeks from the date of the notice, the owner must then give them 3 weeks from the request to have the access. Under s. 10(1) of the Act, ‘building’ is defined to include ‘a structure of any kind’.
72. New s. 195AT(3) provides that a change in or relocation, demolition or destruction of a building will not infringe the moral right of integrity of the author (ie, architect) of the building or of the plans for all or part of the building, if the owner of the building does certain things before that action is taken. First, the owner must make reasonable enquiries to identify and locate the author or authors or persons representing them as defined in new s. 189. Next, only if such enquiries are successful must the building owner then give the authors or other persons notice of the proposed action to the building and that the persons notified have 3 weeks to ask for access to the building. Finally, if requested by the authors or other persons within the 3 weeks from the date of the notice, the owner must then give them 3 weeks from the request to have the access. Under s. 10(1) of the Act, ‘building’ is defined to include ‘a structure of any kind’.
73. New s. 195AT(4) provides that new s. 195AT(2) and (3) do not limit the operation of new s. 195AG. In the event that, for example, a building has been modified other than by the author (ie, architect) of the building and the architect’s name is publicly displayed on the building then new s. 195AG may be relevant. New s. 195AG provides that it is an act of false attribution to deal with the altered work (‘deal’ includes exhibit) as being the unaltered work of the author if the attributor (ie, the dealer - see new s. 195AC(2)) has knowledge that it was not the unaltered work of the author.
74. New s. 195AT(4A) provides that the removal or relocation of a site-specific moveable artistic work will not infringe the moral right of integrity of the author of the work, if the person who is doing the removal or relocation (termed ‘the remover’) does certain things before taking that action. First, the remover must make reasonable enquiries to identify and locate the author or person representing the author as defined in new s. 189. Next, only if such enquiries are successful must the remover then give the author or their representative notice of the proposed action to the work and that the person notified has 3 weeks to ask to discuss the proposed action with the remover and/or for access to the artistic work. Finally, if requested by the author or other person within the 3 weeks from the date of the notice, the remover must then give them 3 weeks from the request to have the discussion with the remover or access to the work. Works to which the new s. 195AT(4A) applies are only those that are situated at a place accessible to the public and which were made for installation in that place.
75. New s. 195AT(5) provides that anything done in good faith simply to restore or preserve an original or copy of a work or film is not an infringement of the author’s right of integrity of authorship of that work or film.
New s. 195AU - Infringement by importation for sale or other dealing
76. New ss. 195AU and 195AV provide for further rights against third parties for an author in circumstances where his or her moral rights have been infringed or an act was done overseas that would have infringed those rights had it been done in Australia. The intention is to allow the author to prevent further distribution of an article resulting from such activity.
77. Under new s. 195AU an author’s moral right is infringed if a person imports an article into Australia for the purpose of sale or other commercial dealing with the article, if the importer knew, or should have known, that if the article had been made in Australia it would have been an infringing article (see definition in new s. 189).
New s. 195AV - Infringement by sale and other dealings
78. New s. 195AV provides for infringement by sale or other commercial dealing with an article where the person knew, or should have known, that the article was an infringing article (see definition in new s. 189) New s. 195AV also provides for infringement by sale or other commercial dealings where the article was imported and, if it had been made in Australia, would have constituted an infringing article.
New s. 195AW - Author’s consent to act or omission
79. New s. 195AW(1) provides that it is not an infringement of
an author’s moral right in respect of a work to do anything that comes
within the scope of what has been consented to by the author or the person
representing the author as defined in new
s. 189. The
written consent under this provision may range from a specific consent to a
comprehensive consent. It is not necessary to specify the actions or omissions
in relation to a work that are consented to under such a comprehensive
consent.
80. New s. 195AW(2) makes it clear that a written consent may be given to acts or omissions that were done either before or after the consent was given.
81. New s. 195AW(3) provides that a written consent to acts or omissions that would otherwise constitute an infringement of moral rights can relate to a specific work or works in existence at the time the consent is given, or a work or works of a particular description the making of which has not begun or which are in the course of being made.
82. New s. 195AW(4) provides that in the case of employees, a written consent may be given in favour of their employers in respect of all works created or to be created in the course of their employment.
83. New s. 195AW(5) provides that a written consent that is made for the benefit of the owner or future owner of copyright in the work or works concerned is presumed to extend to his or her licensees and successors in title and to any person authorised to do acts comprised in the copyright.
84. New s. 195AW(6) makes it clear that new s. 195AW(2), (3), (4) and (5) do not limit the operation of new s. 195AW(1).
New s. 195AX - Acts or omissions outside Australia
85. New s. 195AX confirms that an author’s moral right in respect of a work has no extraterritorial application. It only applies to acts or omissions within Australia.
Division 7 - Remedies for infringements of moral rights
86. This Division provides for the remedies that an author may seek in a civil action before a court.
New s. 195AY - Definition etc.
87. New s. 195AY provides that an action refers to a civil action between the parties and, in relation to a counterclaim, references in the Division to the defendant are taken to be references to the plaintiff.
New s. 195AZ - Actions for infringement of moral rights
88. New s. 195AZ provides that if a person infringes any of the moral rights of an author, the infringement is not an offence, but the author or his or her legal personal representative may bring a civil action in respect of the infringement. The right to bring such an action is expressly made subject to any co-authorship agreement between the joint authors or film-makers (see new s. 195AN).
New s. 195AZA - Remedies for infringement of moral rights
89. New s. 195AZA provides for the relief that a court may grant in an action for infringement of any of an author’s moral rights. The relief includes: an injunction; damages for loss resulting from the infringement; a declaration that a moral right of the author has been infringed; an order that the defendant make a public apology; or an order that any false attribution or derogatory treatment be removed or reversed.
90. New s. 195AZA(2) lists certain matters a court may take into account in exercising its discretion as to the appropriate relief to grant. These matters include: whether the defendant was aware or ought reasonably to have been aware of the author’s moral rights; the effect on the author’s honour or reputation resulting from any damage to the work; the number of people who have seen or heard the work; any mitigating action taken by the defendant; if the right of attribution is infringed - any cost or difficulty that would have been associated with identifying the author; any cost or difficulty in removing or reversing any false attribution of authorship, or derogatory treatment, of the work.
91. New s. 195AZA(3) provides that in deciding whether to grant an injunction, the court must consider whether the parties have attempted negotiation to reach a settlement of the action. In so deciding, the court must also consider whether to adjourn the hearing or further hearing of the action for the purpose of providing the parties with an opportunity to attempt negotiation or mediation.
92. New s. 195AZA(4) provides that if an action is brought by a screenwriter of a film, and the relief granted includes or consists of damages, and that person has already been granted relief by way of damages in an action for an infringement of his or her moral rights as an author of the dramatic work, being the script or screenplay of the film, then the amount of any damages that would be awarded under the subsection is to be reduced by the amount of the damages awarded to the person in the action in relation to the dramatic work. Proposed new s. 195AZA(5) provides for the reverse situation where the action is being brought by the screenwriter for an infringement of moral rights in the film script.
93. New s. 195AZA(4) and (5) confirm that as a consequence of a screenwriter having moral rights as an author of a film in addition to the dramatic work comprising the script or screenplay, any damages for infringement of moral rights recovered by the screenwriter as an author of a film are to be taken into account in assessing damages for the same person as author of the script or screenplay of the film and vice versa.
94. New s. 195AZA(6) provides that, in relation to an action brought under this Part concerning an act or omission done after the death of the author, any damages recovered by the person representing the author devolve as if they formed part of the author’s estate. A note has been added at the end of this subsection to the effect that s. 195AZA(6) does not apply in relation to the right of integrity of authorship in respect of films which ends on the maker’s death (see s. 195AM(1)).
New s. 195AZB - Saving of other rights and remedies
95. New s. 195AZB(1) provides that new Part IX does not affect any right of action or other remedy, whether civil or criminal, in proceedings brought otherwise than under new Part IX.
96. Under new s. 195AZB(2), any damages recovered under new Part IX are to be taken into account in assessing damages awarded under proceedings brought otherwise than under new Part IX which arise out of the same operation. New s. 195AZB(3) provides similarly that damages recovered in proceedings brought otherwise than under new Part IX are to be taken into account in any proceedings brought under new Part IX that arise out of the same operation.
New s. 195AZC - Jurisdiction of courts
97. New s. 195AZC(1) provides that the jurisdiction of a State or Territory Supreme Court in a matter arising under this Part is to be exercised by a single Judge. New s. 195AZC(3) provides that an appeal lies from a decision of a State or Territory Court to the Federal Court or, by special leave, the High Court. The Federal Court has jurisdiction in matters under new Part IX (new s. 195AZC(4)).
New s. 195AZD - Presumption as to subsistence of copyright
98. New s. 195AZD provides that in an action for infringement of moral rights, copyright is presumed to subsist in the work if the defendant does not put the question in issue.
New s. 195AZE - Presumption as to subsistence of moral rights
99. New s. 195AZE provides that in action under this Part, if copyright is presumed or proved to have subsisted in the work at the time an act or omission which allegedly infringed a moral right took place, then that moral right is also presumed to have subsisted in that work at that time.
New s. 195AZF - Presumptions in relation to authorship of work
100. New s. 195AZF(1) provides that the presumption in s. 127 of the Act applies in relation to actions brought under this Part. Section 127 provides for a presumption of authorship of a published work by the person named in the published copies as such. Section 127 also includes a special provision on presumption of authorship of photographs. New s. 195AZF(2) also provides for a similar presumption of authorship by the director, the producer or the screenwriter of a film where their names appear on copies of the film.
News s. 195AZG - Other presumptions in relation to literary, dramatic, musical or artistic work
101. New s. 195AZG provides that ss. 128 and 129 apply in actions brought under new Part IX. Sections 128 and 129 provide for presumptions of subsistence and ownership of copyright in published works and originality and date and place of publication of works of deceased authors.
Division 8 - Miscellaneous
102. This Division includes provision for moral rights in works of joint authorship and for application of the Part to works in existence when it commences.
New s. 195AZH - Parts of works
103. New s. 195AZH confirms that moral rights apply in relation to a whole or a substantial part of the work.
New s. 195AZI - Works of joint authorship
104. New s. 195AZI(2)-(4) provide that moral rights apply to each joint author of a literary, dramatic, musical or artistic work of joint authorship. The consent of one joint author to any act or omission does not affect the moral rights of any other joint author of the work (new s. 195AZI(5)).
New s. 195AZJ - Cinematograph films that have more than one principal director
105. New s. 195AZJ provides for circumstances where there is more than one principal director of a film. New s. 195AZJ(2)-(4) provide that the moral rights apply to each joint principal director of a film. The consent of one such director to any act or omission does not affect the moral rights of any other joint principal director of the film (new s. 195AZJ(5)).
New s. 195AZK - Cinematograph films that have more than one principal producer
106. New s. 195AZK provides for circumstances where there is more than one principal producer of a film. New s. 195AZK(2)-(4) provide that the moral rights apply to each joint principal producer of a film. The consent of one such producer to any act or omission does not affect the moral rights of any other joint principal producer of the film (new s. 195AZK(5)).
New s. 195AZL - Cinematograph films that have more than one principal screenwriter
107. New s. 195AZL provides for circumstances where there is more than one principal screenwriter of a film. New s. 195AZL(2)-(4) provide that the moral rights apply to each joint principal screenwriter of a film. The consent of one such screenwriter to any act or omission does not affect the moral rights of any other joint principal screenwriter of the film (new s. 195AZL(5)).
New s. 195AZM - Application - right of attribution of authorship
108. New s. 195AZM(1) confines the right of attribution of authorship of cinematograph films and works as included in a cinematograph film to films made after the commencement of the Part. New s. 195AZM(2) provides that the right of attribution of authorship in respect of literary, dramatic, musical or artistic works, other than works as included in a cinematograph film, applies to works made either before or after commencement of the Part but only in relation to attributable acts done after the commencement.
New s. 195AZN - Application - right not to have authorship falsely attributed
109. New s. 195AZN(1) provides that the right not to have authorship falsely attributed subsists in relation to a work made before or after commencement of the Part but applies only in relation to acts of false attribution done after that commencement. New s. 195AZN(2) provides that to knowingly deal with the original or a reproduction of a falsely attributed literary, dramatic, musical or artistic work, or the original or copy of a film, is an infringement of an author’s right not to have authorship falsely attributed, even if the name concerned was inserted or affixed before the commencement.
New s. 195AZO - Application - right of integrity of authorship
110. New s. 195AZO(1) provides that the right of integrity of
authorship in relation to a cinematograph film or a work as included in a
cinematograph film subsists only if the film was made after the commencement of
the Part. New
s. 195AZO(2) provides that in relation
to literary, dramatic, musical or artistic works, other than as included in a
film, the right of integrity of authorship applies in relation to works made
after that commencement and in respect of works made before that commencement if
the author is alive at the time of the commencement. New
s. 195AZO(3) provides that in relation to literary,
dramatic, musical or artistic works made prior to commencement of the Part, an
author’s right of integrity of authorship is infringed only by acts that
occurred after that commencement. Dealings with derogatorily treated works will
infringe the right of integrity of authorship only if the derogatory treatment
occurred after that commencement.
Item 2 - Section 238 - False attribution of authorship of work
111. Item 2 repeals s. 238 of the Act which is in Part XI of the Act dealing with the application of the Act to works and other subject matter predating the commencement of the Act in 1969.
Item 3 - Application
112. Item 3 provides that the present Part IX of the Act continues to apply after the commencement of Schedule 1, subject to s. 238 of the Act as in force immediately before that commencement, in relation to acts done in respect of a literary, dramatic, musical or artistic work before that commencement.
SCHEDULE 2 – CONSEQUENTIAL AMENDMENTS OF THE COPYRIGHT ACT 1968
113. Schedule 2 specifies all provisions in the Bill where the
term ‘transmit’ has been used. Once the Copyright Amendment
(Digital Agenda) Act 2000 comes into force, the acts covered by the term
‘transmit’ will no longer have the same or any legal significance
under the Act. In that event, the operation of Clause 2 in conjunction with
Schedule 2 is to the effect that wherever the term ‘transmit’ is
used in the new Part, it will be replaced by the term ‘communicate to the
public’, which the Copyright Amendment (Digital Agenda) Act will
substitute for the acts covered by the definition of ‘transmit’ in
Schedule 1 (new s. 189).