Moral rights
As indicated in 'Copyright Act', copyright law provides one form of legal protection for Aboriginal and other artists. Until the late 1990s copyright law in Australia was designed to only protect economic rights (that is, the right of a copyright owner to exploit the work for financial gain by way of assignment or licence of the work). However, by the end of the 1990s Federal Parliament began to engage in a debate about introducing a Moral Rights Bill as an amendment to the Copyright Act. The Bill was seen as landmark legislative reform for the Australian arts community. Moral rights protect the rights of authors to be identified in relation to their works and also provide rights against derogatory treatment of works.[1] These rights are the personal rights of creators and cannot be given away. Moral rights attach to the ‘creator’ of a work and primarily recognise the special relationship between the creator and the work. Moral rights exist independently of the economic rights in the work.[2]
The Copyright Amendment (Moral Rights) Act 2000 (Cth) was passed in December 2000.[3] While the Act was touted as a comprehensive regime, it contains only three rights per se: the right of integrity (an author’s right to object to derogatory treatment which may prejudicially affect his or her honour or reputation),[4] the right of attribution (the right to be identified as the author of the work)[5] and the right of an author to take action against another who falsely attributes a work to another author. [6]
The moral rights legislation only vests rights in individual creators. This means that traditional custodians would not be able to take advantage of moral rights laws to protect their arts and other cultural material, unless they were able to link their claims to an individual artist. Former Democrat Senator Aden Ridgeway was deeply concerned that the legislation provided that moral rights should only subsist in individual creators, not communities. During the course of the moral rights debate he proposed an amendment which provided that:
Moral rights in relation to an Australian Indigenous 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 this part.[7]
The Australian Labor Party refused to support the amendment, protesting that there had been insufficient consultation. The issue of Indigenous Communal Moral rights will be discussed in more detail below.
- Moral rights legislation gives artists the opportunity to take action against people who use their artworks in derogatory ways. Consider what impacts this might have on:
- art exhibitors
- advertisers
- other artists. - Should people be exempt from moral rights provisions in certain situations - for example, if it is reasonable not to identify an artist or if derogatory treatment or action was reasonable? Under the Act, the right of integrity is not infringed in the case of movable artistic works or artistic works that are fixed to buildings. Moral rights are also not infringed if they are waived under the terms of a contract or if it is reasonable in the circumstances.
[1] The term ‘moral rights’ is a literal translation of the French droit moral or droit moraux: S Ricketson, ‘The Case for Moral Rights’ (1995) Intellectual Property Forum, October, 38.
[2] S Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886 - 1986 (1987) 456.
[3] The Act repealed the existing Part IX of the Act and substituted a new part IX titled ‘Moral Rights of authors or literary, dramatic, musical or artistic works and cinematographic film’.
[4] Copyright Act 1968 (Cth) Part IX Div 4.
[5] Copyright Act 1968 (Cth) Part IX Div 2.
[6] Copyright Act 1968 (Cth) Part IX Div 3.
[7] A Ridgeway, ‘Second Reading of the Copyright Amendment (Moral Rights) Bill 1999’, Senate Hansard, 7 December 2000, p.21062.