Moral rights belong to the author of a work regardless of who owns the copyright. Performers are given protection at live performances before an audience. International copyright protection applies in Australia, to extend the copyright protection of works created in other countries here.
Moral rights are not strictly speaking copyright, but are granted by part IX of the Copyright Act. They are intended to protect the non-economic aspect of a creator’s interest in their work, including the creator’s reputation and sense of continuing connection with their work. Moral rights belong to the author of a work, to the director, producer and screenwriter of a film, and to performers of live or recorded musical performances, regardless of who owns the copyright.
Moral rights are:
• the right to be identified as the author of the work or film, or as a performer of a musical performance, in a clear and reasonably prominent form;
• the right not to have the authorship of the work or film, or the identity of a performer of a musical performance, falsely attributed to someone else;
• the right not to have the work, film or performance subjected to derogatory treatment. This means the distortion, destruction or mutilation of the work, or doing anything to the work that is prejudicial to the author’s honour or reputation.
Without moral rights, a person who owns a painting would have the right to destroy it or alter it. Similarly, even if an author has assigned copyright in a novel to a publisher, moral rights may prevent the novel being published in a way the author finds objectionable, such as in an abridged edition or with a pornographic cover.
Moral rights in films last for the lifetime of the person entitled to exercise the rights. Moral rights in works last for the duration of copyright in the work.
The Copyright Act sets out numerous circumstances in which failing to comply with a moral right does not infringe that right. These include when the failure is reasonable, and when the author has agreed to the non-compliance. For example, it is usually reasonable to not identify the employee who is the author of a business document. However, it is very difficult to decide what is reasonable in the context of commercial dealing with a work that has a serious artistic purpose. For this reason, writers, artists and film makers may be asked to give consent to a wide class of acts that might otherwise infringe their moral rights in their creations.
The remedies for infringement of moral rights include an order to cease the infringement, payment of damages, apologising publicly. Infringing moral rights is not a criminal offence.
Part XIA of the Copyright Act contains provisions protecting people who give live dramatic, musical, dance or circus performances, or live recitals of literary works, from the unauthorised recording (sound or film), broadcasting or electronic transmission of their performances.
The performance need not have an audience to be protected. It does not matter if the unauthorised recording or broadcast is made directly from the performance, or from an unauthorised recording of it.
Broadcasting an authorised recording of a live performance is not an infringement of performers’ protection (although it may infringe copyright in the recording). In other words, if you permit someone to record your performance, you cannot rely on performers’ protection to control the use they make of the recording. Commercial dealing with unauthorised recordings of live performances also infringes performers’ protection.
Performers’ protection normally lasts for 20 years from the end of the year in which the performance took place. However, performers can take action about unauthorised sound recordings of a live performance for 50 years from the end of the year in which the performance took place.
There are many circumstances where recording and re-broadcasting of broadcasts of live performances are permitted. Most mirror circumstances in which copying of copyright material is permitted (e.g. for educational purposes, criticism or review).
You may also record broadcasts of live performances for private and domestic use without infringing performers’ protection. (However, note that you may be infringing copyright in the subject matter of the performance, such as the music, and in the broadcast itself, by recording it.)
The civil and criminal consequences of infringing performers’ protection are similar to those for infringement of copyright.
Australia, like almost all commercially significant countries, is a signatory to the Berne Convention (1886). This convention requires each member state to extend its copyright protection (i.e. the copyright protection afforded to local works) to works created in the other member states. For example, The Lord of the Rings, written by UK resident JRR Tolkien, is covered by Australian copyright law as if the book had been written by an Australian resident.
It is possible that a book may be out of copyright in Australia but still in copyright overseas due to differences in the duration of copyright protection.
For a list of the countries that are members of the Berne Convention – or another relevant international treaty or convention – see the World Intellectual Property Organization’s website (www.wipo.int).
For a more detailed discussion of aspects of copyright in relation to educational institutions, see “Copyright issues” in Education and the law.
Copyright issues relating to creating websites and downloading and using material from the internet are discussed in detail in “Copyright issues” in The internet and the law.