Australia’s experience of moral rights

Elizabeth Adeney∗

An invited paper prepared for a conference ‘Moral Rights and New Technologies: Creativity and
Authorship in a Digital World’ held at the University of Glasgow on 31 March and 1 April 2017 and
organised by Professor Mira Sundara Rajan.

Thank you to Mira for inviting me to give an account of the protection of moral rights under Australian
law. In putting together this account I am taking my cues from the issues raised particularly in the
symposium of ‘Authors, Attribution and Integrity: Examining Moral Rights in the United States’ held in
April last year at George Mason University School of Law in Washington (hereafter ‘Washington
symposium’). Its proceedings were published in the summer issue of volume 8 of the Journal of
International Commercial Law.

Australian progress towards moral rights was slow, and did not raise particularly strong passions. This
country had not been entirely unfamiliar with the kinds of protection offered by the rights, its
Copyright Act having previously included an equivalent of one of them. For many years it had been
assumed in Australia, as in the US, that a patchwork of existing protections – some existing in common
law, others in statutes – rendered the country compliant with article 6bis of the Berne Convention.
This belief, though it was encouraged by those within the Berne Union who wanted to attract the
membership of the common law countries, had gradually eroded as the twentieth century progressed.
The main movement in Australia towards introduction of the rights as they now are began in 1977 and
gathered momentum in the 1980s. It came to an abrupt, though temporary, halt in 1988 when the
majority of the Copyright Law Review Committee recommended against legislation for moral rights.
Within a couple of years, however, the Government was again seeking submissions on moral rights; a
discussion paper followed, then an Exposure Draft and finally a first Amendment Bill in 1997. Following
discussion of this Bill, a subsequent Copyright Amendment (Moral Rights) Bill was introduced in 1999.
Moral rights eventually came into force for Australia at the end of 2000.

Four years later, in 2004, the Australian legislature enacted moral rights for certain performers in
response to the WPPT. They eventually came into force in 2007, upon Australia’s accession to this
treaty. The development of moral rights for performers had not attracted much attention by the
legislators and discussion of the provisions was relatively scant. In their wording they substantially
mirror the authorial rights and exist side by side with the authors’ moral rights in the Act.

Rationales for moral rights protection

When Australia was considering the upgrading of its protection for authors the primary reason was
the need to bring the country into fuller compliance with article 6bis of the Berne Convention. It was
therefore to be expected that Australia would legislate for rights that, as closely as possible, reflected
the spirit and intention of the Berne negotiators, as understood in Australia. That intention was to
protect the author as an individual personality. Therefore, the author is protected against certain

∗
PhD (Melbourne), PhD (Monash), Associate Professor, Deakin Law School, Geelong, Australia.

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types of personal or ‘intellectual’ harm that could come to the author through the work. The author
is protected because the author as a personality is deemed worthy of protection and respect. So the
correct naming of the author in association with the work (with all its reputational advantages) is
safeguarded through the attribution right and the right against false attribution, and the interest of
the author in being associated with the work in a form that has not been prejudicially altered is
safeguarded through the integrity right. Both rights express society’s regard for the author (and
latterly the performer).

As was mentioned at the Washington symposium, this individualist conception of the rights is
supported by art 27(2) of the Universal Declaration of Human Rights. This individualist view has been,
internationally, the dominant conception of the rights in the post WW2 period.

At various junctures, however, it has seemed appropriate in some countries to look at moral rights
from a different angle. Instead of, or as well as, the ‘individual protection’ rationale, commentators
and legislators have introduced an instrumentalist ‘public interest’ rationale or, more radically, a
‘cultural protection’ rationale into the discussion. This occurred in Australia, but only to a minimal
extent.

Public interest arguments can take various forms. One is the argument that anything which makes the
author feel professionally secure, which produces a good creative environment for the author, is going
to act as an incentive to create. The resulting creation then benefits society. This type of argument
shows an assimilation of moral rights doctrine to the copyright aspirations of the type embodied in
the US constitution.

Another is the truth in attribution argument. It is arguably in the public interest for this generation
and future generations to know exactly who produced a particular work. (Foucault might disagree
with this.) In many contexts, our law punishes those who commit frauds, those who misrepresent
themselves and what they produce, or who misrepresent the work of others. It is natural enough to
argue that the attribution right and the right against false attribution are in the public interest because
they are part of the arsenal of weapons that can be deployed against misrepresentations.

If one takes this view, however, one does have to face one or two countervailing facts about moral
rights. One is that the attribution right almost always gives the author the right to insist on a
pseudonym (which may be used either as a mask or a brand name) appearing on the work. In some
jurisdictions the right gives the author the additional entitlement to insist on anonymity. In the first
case the public is deliberately misled about the identity of the ‘true’ author, either in order to protect
the author or to serve some other authorial interest. In the second case information is withheld from
the public, again because the author’s interests are considered to override the interests of the public
in knowing the information. So the ‘individual protection’ rationale overrides any ‘public interest’ in
the veracity of information in these instances. The public interest would only indirectly be served by
the encouragement of the author to create.

Turning to the cultural preservation argument, this argument directs attention away from the author
towards the community in which the work arises. It presents the integrity right in particular as
preventing the degradation or destruction of cultural artefacts, whether corporeal or incorporeal. This
use of the cultural preservation idea has an extremely interesting history. As I’ve outlined in Chapter
3 of my book, 1 it rose to prominence through the 1920s and particularly in 1930s Germany when
socialist, nationalist, collectivist thinking was pitted against the individualism of the earlier decades of
the century. Something of a reinvention or repurposing of moral rights took place in that country,

1
E Adeney, The Moral Rights of Authors and Performers (Oxford: Oxford University Press, 2006).

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though it was never to be reflected in legislation. This phenomenon was particular to Germany for the
most part. French-language commentators were not greatly attracted by the trend, but they did note
and discuss it, and one author in particular — Georges Michaélidès-Nouaros, 2 writing in 1935 —
aroused interest in the US. Stephen P Ladas 3 in 1938, and Martin A Roeder 4 writing in the Harvard Law
Review in 1940, both showed the influence of collectivist thinking in their accounts of the moral rights
doctrine. Subsequent writers in the US have likewise emphasised this cultural protection rationale. 5 It
appears that by this means a collectivist concept of moral rights entered US thinking and had a far
greater practical effect there than might have been expected. We can see the influence of the cultural
protection rationale for moral rights in a number of US State statutes, 6 and it is hardly surprising that
the rationale influenced the drafting of VARA 7 and is still colouring some federal discourse on the
rights.

In Australia links were occasionally made between the safeguarding of artistic integrity and the policy
of preserving a nation’s cultural heritage. At one point the author was said in a Copyright Law Review
Committee Discussion Paper to be ‘acting as a “trustee” for the public generally’. 8 However this type
of thinking, which probably derived from US authors such as Roeder, was resisted and has not
subsequently been resurrected in Australia. As one leading barrister put it in 1978: ‘I think that artists
need to be wary of tying themselves to the “integrity of national cultural heritage” or to perpetual
protection bodies. One only needs to have average paranoia to imagine how such notions could be
used against artists.’ 9

Undoubtedly, in a country such as the US whose legislators have historically shown a deep distrust of
European transplants (witness the Berne Convention debates), public interest and cultural protection
arguments are useful ways to lever moral rights onto the statute books, even when the primary
objective is adherence to the Berne Convention. If the public or the legislators are not sufficiently
persuaded by the concerns and complaints of the authors themselves (and sometimes these concerns
are more economic than personal), here is a useful second string to the pro-moral rights bow.

But I would still maintain that the protection of the public interest is not part of core moral rights
doctrine; it is a practical byproduct of the protection of the individual, not a reason for it. As far as
protection of the cultural patrimony is concerned, I think it is entirely to be encouraged but I am not
persuaded that this must be achieved by means of an author’s or performer’s moral rights. There will
be circumstances where the interests of the author are not on all fours with the community interest
in cultural protection, particularly in times of extreme nationalism. These are, after all, substantially
different sets of interests and to yoke them too closely together is to risk incoherence in the
legislation.

How much detail?

2
G Michaélidès-Nouaros, Le droit moral de l’auteur (Paris : Arthur Rousseau, 1935)
3
S P Ladas, The International Protection of Literary and Artistic Property (New York: Macmillan, 1938).
4
M A Roeder, ‘The Doctrine of Moral Rights: a study in the law of artists, authors and creators’ (1940) 53
Harvard Law Review 554.
5
For example, Alexander Katz, ‘The Doctrine of Moral Right and American Copyright Law – a Proposal’ (1951
24 Southern California Law Review 375; J H Merryman, ‘The Refrigerator of Bernard Buffet’ (1976) 27 Hastings
Law Journal 1023.
6
Most notably the California Art Preservation Act and the Pennsylvania Fine Arts Preservation Act.
7
See the rationales for the Visual Artists Rights Act stated in House Report 101-514.
8
CLRC, Discussion Paper — Moral Rights (Australian Government Publishing Service, 1984) para 11.
9
David Catterns, paper published in: Australia Council National Symposium on Moral Rights 29-30 November
1979, Report of Proceedings (Australian Copyright Council, 1980) 48.

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Leaving aside the rationales for moral rights protection, in drafting moral rights provisions every
country needs to decide on the level of detail in which this will be accomplished. Typically, the
countries with a long history of moral rights jurisprudence feel the least need to enact detailed and
prescriptive provisions. Moral rights are ingrained in the culture, and the existing jurisprudence will
elaborate many of the basic principles stated in the legislation. We see this type of sparseness in the
French and German legislation, most notably in the former. On the other hand, countries with little
experience of moral rights, nervous about their as yet unknown effect, tend to enact provisions aimed
at controlling the rights’ disruption of the existing legal system. Australia is one of the most extreme
examples to date of a country of this kind, first of all enacting in excess of 60 authorial rights provisions,
followed by approximately the same number of moral rights provisions for performers.

Does this kind of detail create certainty in Australia? In some respects yes, since many of the questions
that arise for practitioners and tribunals can be answered by reference to the Act. The detailed
drafting has the effect of bedding down the moral rights within the domestic copyright regime, putting
out the roots that attach the transplant to the native soil. On the other hand, the multitude of
provisions has made the copyright legislation in Australia even more ungainly than it already was (and
it was already extremely ungainly), and the drafting either leaves questions unanswered or, indeed,
creates further questions. Certain key issues of moral rights are, deliberately, not addressed
legislatively. For example the questions of how the courts should interpret the concept of ‘honour’,
and of what type of ‘reputation’ is involved in the integrity right – reputation as a person or as an artist
— remain, 17 years down the track, to be settled through judicial discussion.

I noticed that Mr Besek at the Washington symposium expressed the opinion that moral rights for the
US would need to be ‘very specific and very circumscribed’. Well, if you want an example of specificity
go to the Australian Act; if you want an example of circumscription the UK legislation is probably the
best place to look, though Australia is not very far behind.

The ‘works’ and performances which attract the rights

Under Australian law, copyright subject matter has long been divided into two categories: ‘works’,
namely literary, dramatic, musical and artistic works, and ‘subject matter other than works’, namely
films, sound recordings, broadcasts and published editions. The Berne Convention is structured
differently. Moral rights under article 6bis of the Berne Convention pertain to what the Convention
calls an ‘oeuvre’ or ‘work’, and this notion of ‘oeuvre’ covers films as well as the more traditional types
of material. This posed a problem for the Australian legislators. They solved it by classifying a film, for
moral rights purposes only, as a ‘work’, leaving the rest of the Act untouched.10 This limited rethinking
of the ‘work’ concept, one example of the type of accommodation that domestic statutes need to
make in order to incorporate this legal transplant, appears to have been unproblematic in Australia.
The Australian law does not distinguish between types or grades of film (or of photograph) in allowing
moral rights to attach to them, as some European jurisdictions do. All are embraced by the system.

The moral rights that Australia provides for performers apply only in relation to the sounds of the
performance.11 Australia is neither a member state nor even a signatory of the Beijing Treaty on
Audiovisual Performances. In this respect it lags behind the United Kingdom and United States, which
are both currently signatories.

10
Copyright Act 1968 (Cth) s 189 definition of ‘work’.
11
Copyright Act 1968 (Cth) s 189 definition of ‘performer’.

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The beneficiaries of moral rights and the concept of authorship

Leaving aside performers for a moment, Australian legislation operates on the basis that authors are
the beneficiaries of moral rights, and that all authors are individual human beings. Corporations are
not authors. Australian copyright law does not grant employers authorship of the work of their
employees, though they may under some circumstances be first copyright owners. Whether an act of
authorship has occurred is a question of fact, not of law, and has been comprehensively discussed
quite recently by the Australian High Court in the IceTV case. 12 In the words of three of the judges
authorship requires the exercise of ‘independent intellectual effort’.13 On the other hand, no
Australian court has gone so far as to hold that ‘creativity’ is required for authorship. For moral rights
purposes, although it is possible for individual producers to be the authors of films, a corporate
producer is disqualified from protection. Authorship of films is divided three ways between the
principal screenwriter, the principal director and the principal (human) producer. 14

As mentioned above, performers are protected only in respect of audio aspects of their performance.
The concept of performership has not been judicially examined in the way that authorship has and
neither has it received much legislative emphasis. The legislative energy has rather been directed to
the definition of a performance. 15

Collaborative authorship and the effect of multiple authorship norms

Authorship is a variable construct from country to country among the member states of the Berne
Convention. Conclusions on authorship are arrived at by courts through the careful application of a
variety of formulae, generally arrived at through jurisprudence. The existence of diverging industry-
based constructions of authorship further complicates the introduction of an attribution right, setting
up scenarios where practices which are compliant with the industry norms may nevertheless fall foul
of the law. Any variability from country to country in authorship constructs also complicates matters
when cross border litigation is in issue.

Areas of particular potential for conflict are the academic and scientific/medical fields. Authorship
here tends to be governed by institutional rules and rules set, with international effect, by the
scientific publishers without, apparently, much or any regard for legal constructions of authorship. In
a world where only copyright was at issue this proved to be relatively uncontentious. In a world that
contains moral rights within the legal mix it becomes a lot more problematic.

A number of comments at the Washington symposium indicated that the issues raised by collaborative
authorship and the existence of multiple authorship norms were at the forefront of some people’s
minds.

‘I know that a lot of people go uncredited that are propping up a lot of other people’s careers.
And I think that it would be better for the people of the world if some of these talented people
actually got to get out from under these other people and got known for what they were
doing. It would make the music world better’: Mr Gibbs at p 105.

‘In the case of literary works, academic has very strong, and often enforceable, norms about
plagiarism, not all of which are necessarily entirely consistent with formal attribution rights’…
‘there are real and differentiated plagiarism norms in everything from music, to film, to visual

12
IceTV Pty Limited v Nine Network Australia Pty Limited (2009) 239 CLR 458.
13
IceTV [33], [48].
14
Copyright Act 1968 (Cth) s 189 definitions of ‘author’ and ‘maker’, s 191.
15
Copyright Act 1968 (Cth) s 189 and s 248A definition of ‘performance’.

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 art, to comedy. … I think any moral rights reform would do well to remember and respect the
different approaches taken by these different communities’: Mr Wolfe at p 40.

‘If we’re going to have an attribution right, we had better know who’s an author. In many
instances, that will not be too difficult to figure out. Moreover, in lots of instances, there are,
indeed, conventions about giving credit’: Prof Ginsburg at p 85.

These comments point to important considerations. The comment by Mr Gibbs points to the
desirability of what I would call factual authorship being known, the desirability of transparency in the
naming of authors — not only in fairness to the ‘true’ but as yet unrevealed authors themselves, but
also for the benefit of the public and profession. A strong attribution right together with a
commitment to a ‘factual’ concept of authorship would achieve what this commentator desires. A
respect for existing norms would not always do so.

Mr Wolfe, on the other hand, argues for respect to be given to the status quo and the conventions of
particular industries. He appears to imagine a legal landscape in which existing norms are incorporated
into any new moral rights provisions. The Australian approach to conventions that may conflict with
the letter of the new law is to allow those conventions to be given weight as part of a defence to
infringement. This can occur only under certain circumstances, as will be shown further below. The
existence of industry norms does not, importantly, affect the underlying construction of authorship in
Australian copyright or moral rights law.

If I read Prof Ginsburg correctly, she sees the identification of authorship as depending on factual
considerations assisted in difficult cases by industry conventions about giving credit. This appears to
give existing conventions a place in the determination of whether authorship has occurred, a place
not given to them by Australian law.

The rights themselves

There is great variation in the number of moral rights recognised from country to country. (Indeed in
a country such as France ‘le droit moral’ is seen as singular — giving a set of authorial prerogatives,
but existing conceptually as only one right). It was noted at the Washington symposium that the four
core prerogatives are to claim attribution, to protect the integrity of the work, to withdraw the work
from circulation and to make the work available to the public for the first time. Only the first two are
reflected in the Berne Convention. Australia has opted for three moral rights, though I don’t believe
that they go beyond the two core rights of Berne. The Australian legislator has conceptualised the
attribution right as two separate rights: the so-called right to attribution of authorship 16 and the right
against false attribution of authorship. 17 The protection of an author against false attribution was not
new to Australian law at the time the moral rights provisions were enacted, which helps to explain its
separate existence.

The right of attribution of authorship in Australia (the right of the author to receive attribution) does
not need to be asserted in the way that it does in the UK. It can be enjoyed by all authors including, of
course, the authors of a film. It is up to the author to determine the form of attribution, as long as that
form is reasonable in the circumstances. 18 Thus, under Australian law, a reasonable pseudonym may
be insisted upon. On the other hand the Australian provisions, unlike their French, Canadian or

16
Copyright Act 1968 (Cth) ss 193, 194.
17
Copyright Act 1968 (Cth) ss 195AC-195AH.
18
Copyright Act 1968 (Cth) s 195AR.

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German counterparts, do not give a right to anonymity. The same goes for the counterpart right of
attribution of performership. 19

Turning to the Australian right against false attribution of authorship, one must be careful not to
misapprehend this right. This is not the type of right that in the UK is called the right against false
attribution. 20 That UK right is predominantly the right of a person not to have their name misused on
the work of another. 21 Though it is classified in the legislation as a moral right, the core UK right is not
expressed as an author’s right and is therefore not a moral right in the sense normally understood in
other jurisdictions. In Australia, on the other hand, the right against false attribution is an author’s
right to object to two things. First, the author may object to another person’s name being used on the
author’s work (overlapping with the non-legal concept of plagiarism) 22 and, second, the author may
object to the author’s own work being altered and then passed off as unaltered work. 23 In both cases
the right is an authorial right – any harm that comes to the author comes through the work. This is
consistent with European concepts of moral rights and it does seem that the European attribution
rights in fact include a right against false attribution of this type. 24

The type of scenario that raises the second limb of the Australian false attribution right was mentioned
by Mr O’Connor at the Washington symposium.

… what if somebody takes my carefully constructed, here’s-what-I-really-meant-to-put-out-

there, and they change it and my name is still on it? And now suddenly that could get me not
just professional problems, but it could also get me physical harm kinds of problems. Can’t I
then get my name taken off it? Or can’t I just withdraw the work entirely if I realize that’s not
what I want to publicly commit to anymore?‘ Mr O’Connor at p 95.

The answer of the Australian legislators to his questions would be that the name cannot be used on
the changed work in such a way that the work is being passed off as Mr Connor’s unaltered work. The
original authorship must be recognised but it must be clear to users that the alteration has occurred.
Australia has no right of withdrawal, so the work cannot simply be removed from the market, and the
name cannot simply be removed from the work because that would infringe the attribution right.

Thirdly, the author has a right of integrity of authorship which is largely consistent with the integrity
right as expressed in the Berne Convention. It is the right of an author to object to derogatory
treatment of the work, namely, to put it briefly, alteration to a work that is prejudicial to the author’s
honour or reputation. Derogatory treatment also includes ‘the doing of anything else in relation to the
work that is prejudicial to the author’s honour or reputation’. 25 How broadly this provision will be read
in Australia has yet to be seen but it is intended to cover contextual infringement and one imagines
that the use of a work in an objectionable political context might cause sufficient prejudice.

Destruction of a work was discussed at the Washington symposium, and the Australian law does
provide sanctions against destruction of an artistic work under some circumstances. The actionable
derogatory treatment may include destruction of the work if this destruction is prejudicial to the

19
Copyright Act 1968 (Cth) ss 195ABA, 195ABB.
20
Copyright, Designs and Patents Act 1988 (UK) s 84.
21
With the exception of s 84(6) relating only to artistic works.
22
Copyright Act 1968 (Cth) s 195AD, 195AE, 195AF.
23
Copyright Act 1968 (Cth) ss 195AG, 195AH.
24
This is an any event the case in Germany.
25
Copyright Act 1968 (Cth) s 195AJ, 195AK, 195AL.

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author’s honour or reputation. 26 There is no need for the artistic work in question to be of recognised
stature or indeed of any particular quality for it to be protected.

Also in relation to an artistic work, the Australian Act provides expressly for infringement through the
manner in which the work is displayed – ‘the 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’. 27 There
is no indication that the legislators had any motive of cultural protection when these provisions were
drafted. Their concern was solely to do justice to the author.

Limitations placed on the rights

Nervous legislators in common law countries tend to place express and sometimes draconian
limitations on their moral rights provisions. The prime examples of this are to be found in the UK
legislation. By comparison the Australian legislators were restrained in choosing not to limit the works
(within the categories of work protected) to which the moral rights might apply. Instead, the major
restraints on the rights are the legislatively-provided defences to an infringement action and the
liberty of the author/performer to consent to otherwise infringing uses of a work or performance.

Consent

Some jurisdictions allow waiver of the moral rights, which is tantamount to the abandonment of the
rights. The UK is a case in point. Contrary to what is sometimes thought, the Australian moral rights
law deliberately does not contain the notion of waiver. This is not to say that the mechanism of waiver
was not considered by the legislators, but in the end they rejected it. The decision to do so can be
justified by the notion — fundamental to civil law conceptions of moral rights —that these rights are
inalienable. Instead of waiver, the Australian legislature opted for a raft of consent provisions. 28
Consent is theoretically less objectionable than waiver since to give consent is to exercise the right,
not to alienate it. That said, the breadth of the current consent provisions renders them the functional
equivalent of waiver because the consents that are possible under the legislation can be so broad as
to operate effectively as waivers.

It should be noted here that both waiver and consent, being at the discretion of the individual author
(or performer), are ill adapted to any sort of heritage protection.

Defences

Apart from consent, the main limitation on the rights — and one of the most notable features of the
Australian moral rights provisions — is framed as a defence. It is drafted in exceedingly broad terms:
the impugned act does not infringe if it was ‘reasonable in all the circumstances’. 29 Tribunals are to
take into account non-exhaustive lists of criteria when determining the reasonableness of an action:
the purpose for which the work is used by the alleged infringer, the manner in which the work is used,
any relevant practice in the industry in which the work is used, a relevant voluntary code of conduct
in the industry in which the work is used, and so forth. 30 The lists differ slightly depending on whether
the right of attribution or the integrity right is in question and seem to owe a good deal to 17 USC §

26
Copyright Act 1968 (Cth) ss 195AJ and 195AK(a).
27
Copyright Act 1968 (Cth) ss 195AJ and 195AK(b).
28
Copyright Act 1968 (Cth) ss 195AW, 195AWA (s 195AXJ for performances).
29
Copyright Act 1968 (Cth) ss 195AR, 195AS (ss195AXD and 195AXE for performances).
30
Copyright Act 1968 (Cth) ss 195AR, 195AS (ss195AXD and 195AXE for performances).

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107 outlining the fair use criteria in US law. On the other hand, the Australian fair dealing defences —
the rough but very narrow equivalent of the US fair use defence — do not apply to moral rights.

One must be careful when considering the reasonableness defence. Some commentators treat the
defence as if it is available in relation to all three of the rights. That is not so. The defence is unavailable
when the right alleged to have been infringed is the right against false attribution of authorship. One
might speculate that the public interest in not being subjected to misleading and deceptive conduct
was a factor driving this decision (though in that case it is surprising that the author’s consent can
override this public interest). This inapplicability of the reasonableness defence (including any
consideration of industry practices) to the right against false attribution means that scientific
authorship norms are in perpetual conflict with the Australian false attribution provisions. They
frequently allow authorship status to be given to those who have not in fact authored the work in the
copyright sense.

Duration

The duration of moral rights was long a matter on which nations disagreed, and it remains a point of
theoretical difference. It was always likely that Australia would opt, as a rule of thumb, for the
copyright term — currently 70 years post mortem auctoris. However, the right of integrity in relation
to films subsists only until the death of the last of the authors.31 The other rights subsist for the
copyright period. Since none are perpetual they cannot be used for heritage protection.

In relation to performers, the Act is silent as to how long the rights in respect of a live performance
last. In relation to a recorded performance the rights of attribution and against false attribution last
for the copyright term of the recorded performance, namely 70 years from the year of publication of
the recording. 32 The performer’s integrity right in the recorded performance lasts only for the lifetime
of the performer. 33

Remedies

In Australia, the remedies for infringement of the rights are purely and expressly civil. The recent
burgeoning of criminal sanctions for copyright infringement has not touched the moral rights. The
remedies derive from common law and equity and are tailored to the nature of the harm caused. In
some cases an apology may be sufficient. 34

Litigation, domestic and international, and the floodgates argument

The author Scott Turow’s testimony at the Washington symposium was amusing: ‘And so I called my
lawyer, and I said, ‘Well, what are moral rights?’ And he said, ‘Well, it has nothing to do with you.
You’re an American.’ at 96.

In Australia we know from experience that moral rights do have to do with Americans, just as they
have to do with every other author from a Berne member state. This was demonstrated by the fact
that not long ago the US musician Pitbull won a moral rights action in Australia against his Australian
promoter. 35 He was using Australian law — the law of the state where infringement had occurred and
where protection was sought.

31
Copyright Act 1968 (Cth) s 195AM(1).
32
Copyright Act 1968 (Cth) ss 93.
33
Copyright Act 1968 (Cth) s 195ANA(3).
34
Copyright Act 1968 (Cth) s 195AZA (s 195AZGC for performers).
35
Perez v Fernandez [2012] FMCA 2 (10 February 2012).

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At the Washington symposium, Mr Adler noted the litigiousness of US society — ‘we’ll always be trying
to game the fringes and the edges of these rights’. Australian society is less known for its litigiousness,
though intellectual property litigation is relatively frequent and cases regularly go on appeal to the
Australian High Court (the equivalent of the US Supreme Court). Litigation driven by offshore interests
provides welcome opportunities for the moral rights provisions to be tested.

In Australia the floodgates did not open. To date, only the lowest level of the Australian Federal Court
system 36 has considered moral rights in any detail, and only substantially in two cases. In both cases
the rights of the applicant were upheld by the tribunal and infringement was found to have occurred.
Modest remedies were ordered. The fact that these have been the only significant actions in a 17 year
period indicates that even applicant success could not encourage a spate of litigation. In the first of
the cases the tribunal demonstrated considerable confusion in interpreting the rights. In the second
case, concerning the rights of the US musician Pitbull, the judgment was more assured.

One may speculate about the paucity of moral rights litigation in Australia. There is certainly no single
reason for this. It may be because most artists are too impecunious to even contemplate litigation or
because their concerns are primarily economic. It may be because moral rights issues are relatively
easily settled before they reach the courts. It may be because of the unfamiliarity of authors,
performers and practitioners with the provisions, and their lack of confidence in sailing their complaint
into uncharted waters. After all, the fact that in 17 years no really authoritative case law has arisen
means that, in most respects, our understanding of the rights in their Australian context is no greater
than it was in 2000. It may be because of the fear that the broad reasonableness defence will render
actions on the attribution and integrity rights useless and because the applicant must bear the cost of
the action before the defence shows its hand. It may also be the effect of the common law culture
which is not accustomed to even thinking about ‘honour’ and which considers ‘reputation’ to be the
domain of defamation law. It may be that, for example in the publishing sector, authors are obliged
to sign contracts that purport to limit or ‘waive’ their moral rights and they are in a poor position to
either resist, or to assess the validity of, these contracts.

So have moral rights been a success in Australia to date? For a few people they obviously have, and in
many instances users of copyright materials may have refrained from infringing behaviour because
the rights exist. However, I think it is true to say that the Australian moral rights are not well
understood in Australia. One reason for this is the transnational nature of the rights. The author or
performer is likely to encounter contracts, in Australia, which talk in terms of foreign laws. The
Australian Society of Authors moral rights clause begins with the words ‘The Author asserts his/her
moral rights in relation to the work’. The Fairfax Publishing contract states ‘You waive Your moral
rights (as set out in the Copyright Act 1968 (Cth)) …’. 37 Who would think, reading these documents,
that assertion and waiver are not part of Australian moral rights law? Clearly these contracts are
drafted with an eye on the international dissemination of the material and the possibility of overseas
litigation, but you cannot blame authors or performers in Australia for being confused. Their confusion
will certainly grow when US moral rights become part of the mix.

36
The Federal Circuit Court, formerly known as the Federal Magistrates Court.
37
These examples are mentioned in Francina Cantatore and Jane Johnston, ‘Moral Rights: Exploring the Myths,
Meanings and Misunderstandings in Australian Copyright Law’ (2016) 21(1) Deakin Law Review 71.

Electronic copy available at: https://ssrn.com/abstract=3043550