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DEAN ELLINSON[*] AND ELIEZER SYMONDS[†]
[Moral rights legislation came into force in Australia on 21 December 2000. It provides authors of copyright works with, inter alia, a new right of integrity of authorship in respect of their works. Central to the right of integrity of authorship is the protection of ‘author’s honour’. This article examines the concept of ‘author’s honour’ and offers a definition of it within the context of the Australian moral rights legislation. The definition suggested is based on recognising that the protection of ‘author’s honour’ is, according to the legislation, a right of integrity of authorship. A conceptual framework is then developed to assist in determining when treatment of a work prejudices the author’s honour. In particular, the conceptual framework provides a basis for distinguishing between different types of works and for clarifying why particular treatment of one type of work may prejudice the author’s honour but the same treatment of another type of work may not.]
CONTENTS
The Copyright Act 1968 (Cth) (‘Copyright Act’) has been amended to give authors[1] of copyright works (‘works’)[2] a new right of integrity of authorship in respect of their works.[3] The amending legislation, which is the Copyright Amendment (Moral Rights) Act 2000 (Cth) (‘Australian moral rights legislation’), was passed by the Commonwealth Parliament on 7 December 2000 and came into force on 21 December 2000.[4] Central to the right of integrity of authorship is the protection of ‘author’s honour’. This article’s primary focus is on determining the meaning of ‘author’s honour’ within the context of the Australian moral rights legislation, and providing a conceptual framework to assist in judging when treatment of a work is prejudicial to the author’s honour. Before considering the concept of ‘author’s honour’ we outline the main elements of the legislative definition of ‘derogatory treatment’, which is a term closely tied to the right of integrity of authorship and contains the concept of ‘author’s honour’.
The Australian moral rights legislation provides that the right of integrity of authorship in respect of a work is the author’s right not to have his or her work[5] subjected to derogatory treatment.[6]
Set out below are examples of situations that raise the issue of whether derogatory treatment has occurred:
The legislative definition of ‘derogatory treatment’ is divided into three categories.[16] Conduct coming within any one of the three categories constitutes ‘derogatory treatment’. The first category constitutes the doing, in relation to a work, of anything that results in a material distortion of, the mutilation of, or a material alteration to, the work that is prejudicial to the author’s honour or reputation.[17] In the case of an artistic work, this category is expanded to include the doing, in relation to a work, of anything that results in the destruction of the work that is prejudicial to the author’s honour or reputation.[18] The second category comprises the exhibition in public of an artistic work that is prejudicial to the author’s honour or reputation because of the manner or place in which the exhibition occurs.[19] The third category is the doing of anything else in relation to a work that is prejudicial to the author’s honour or reputation.[20] This third and very broad category makes clear that ‘derogatory treatment’ can be constituted by the doing of something which does not alter the work’s material form,[21] such as a contextual interference,[22] provided that the treatment is prejudicial to the author’s honour or reputation. Effectively, the legislative definition of ‘derogatory treatment’ is the doing of anything in relation to a work that is prejudicial to the author’s honour or reputation.
The reference to the ‘doing of’ indicates that the conduct complained of must constitute something being done. The legislative definition is not satisfied if the conduct complained of concerns only an omission; for example, a publisher’s failure to publish a work, a gallery’s failure to take proper care of a work, or a local council’s refusal to display a sculpture. The phrase ‘in relation to’ indicates that there must be a relationship, connection or association between the activity complained of and the work.[23] The doing of anything in relation to a work refers particularly, but not necessarily only, to changing a work’s material form or changing the context in which the work’s material form is used. The doing of anything in relation to an author’s work constitutes ‘treatment’ of the work but the treatment of the work must be prejudicial to the author’s honour or reputation if the legislative definition of ‘derogatory treatment’ is to be satisfied.
The Australian moral rights legislation has no definition of ‘honour’. No interpretation of that term is contained in the explanatory memoranda or in the parliamentary debates. The New Shorter Oxford English Dictionary defines ‘honour’ as ‘high respect, esteem, deferential admiration; an expression of this; ... a thing conferred or done as a mark of respect or distinction’.[24] The same dictionary defines ‘honour’, when used as a verb, as to ‘pay respect or do honour to by some outward action; ... regard with honour, respect highly’.[25] With these definitions in mind, the concept of ‘author’s honour’, as contained in the legislative definition of ‘derogatory treatment’, ought to be interpreted as the author’s entitlement to respect. Additional support for this interpretation can be drawn from the statements of the Attorney-General in his Second Reading Speech that the moral rights provisions acknowledge ‘the great importance of respect for the integrity of creative endeavour’[26] and that ‘the main impact of the new legislation will be to ... raise awareness in an educative way of the need to respect the creativity of authors’.[27]
The Australian moral rights legislation provides that the author’s right of integrity of authorship in respect of his or her work is the right not to have the work subjected to derogatory treatment.[28] Derogatory treatment is effectively constituted by the doing of anything in relation to the work that is prejudicial to the author’s honour or reputation.[29] Therefore, the protection of the author’s honour is, according to the Australian moral rights legislation, a right of integrity of authorship in respect of the author’s work. Consequently, the concept of the author’s entitlement to respect (which is the submitted meaning of ‘author’s honour’) needs to be interpreted consistently with the protection of it being a right of integrity of authorship. Therefore, an interpretation of ‘author’s entitlement to respect’ requires one to analyse the meaning of ‘right of integrity of authorship in respect of the work’.
There is no provision in the Australian moral rights legislation defining ‘authorship’. According to The New Shorter Oxford English Dictionary, the suffix ‘-ship’ is defined as ‘denoting a ... state or condition’.[30] Therefore, ‘authorship’ is the condition or state of being an author. According to The New Shorter Oxford English Dictionary, an ‘author’ is ‘a person who originates, invents, gives rise to, or causes something’.[31] Therefore, ‘authorship in respect of the work’ is the condition or state of being an originator (or creator) in respect of the work. In other words, ‘authorship in respect of the work’ is the act of creating the work.[32] It can also be referred to as the author’s role as author of the work or, in more abbreviated language, the author’s authorial role. As the ‘author’s act of creating the work’ and the ‘author’s authorial role’ (that is, the ‘author’s role as author’) constitute the same activity, these phrases will be used interchangeably in this article to describe the author’s ‘authorship in respect of the work’.
‘Integrity’ is not defined in the Australian moral rights legislation. The New Shorter Oxford English Dictionary’s definitions of ‘integrity’ are:
1 The condition of having no part or element taken away or lacking; undivided state; completeness. 2 The condition of not being marred or violated; unimpaired or uncorrupted ... 3 ... soundness of moral principle; the character of uncorrupted virtue; uprightness; honesty; sincerity.[33]
In the legislative phrase ‘right of integrity of authorship’, the word ‘integrity’ is clearly not being used in the sense of the third meaning set out above;[34] rather, it is being used in the sense of definitions one and two above.
In light of the submitted meanings of ‘authorship in respect of the work’ and ‘integrity’, in our opinion the author’s right of integrity of authorship in respect of the work is the author’s right to have his or her act of creating the work, or his or her authorial role, kept whole, complete and intact.
If the author’s entitlement to respect is to be interpreted consistently with it being a right of integrity of authorship in respect of the work, then it ought to extend only to the author’s authorship of the work. That is, the author’s entitlement to respect ought to extend only to the author’s act of creating the work.
We now turn to consider how the author’s entitlement to respect is to be interpreted consistently with it being a right of integrity of authorship, which we have interpreted as the author’s right to have his or her act of creating the work kept whole, complete and intact. Such a consideration requires an examination of the meaning of ‘respect’.
‘Respect’ means esteem or regard. The New Shorter Oxford English Dictionary defines ‘respect’ as ‘deferential esteem felt or shown towards a person, thing or quality; a feeling of deferential esteem; state of being esteemed or honoured’.[35] However, in the context of the Australian moral rights legislation ‘respect’ ought not to be interpreted as esteem or regard in general. Protection of regard or esteem in general is not consistent with providing a right of integrity of authorship. Many instances of lack of regard or esteem will simply not affect the author’s right of integrity of authorship. Put another way, many instances of lack of regard or esteem will not cause the author’s act of creating the work to be rendered less whole, complete and intact. To illustrate, if a defendant gave expression to his or her lack of regard by making an offensive gesture with his or her hand whilst walking past a sculpture, or by making a rude remark about the quality of the sculpture, that may well be disrespectful when ‘respect’ is interpreted as esteem or regard in general. However, such an offensive gesture or rude remark cannot be said to affect the integrity of the sculptor’s authorship since such treatment cannot be said to render the sculptor’s act of creating the sculpture less whole, complete or intact.[36]
Thus, for the author’s entitlement to respect (that is, the protection of the author’s honour) to be a right of integrity of authorship, it ought to protect the author from actual interferences with the author’s act of creating his or her work. Indeed, this interpretation of the author’s entitlement to respect is consistent with one of the definitions of the verb ‘respect’ in The New Shorter Oxford English Dictionary which is ‘refrain from injuring, harming, insulting, interfering with or interrupting’.[37]
Put concisely, the author’s honour or entitlement to respect is the author’s entitlement to not have his or her act of creating the work interfered with by others. There is prejudice to the author’s honour/entitlement to respect when there is interference with the author’s act of creating his or her work.
As mentioned earlier,[38] the legislative definition of ‘derogatory treatment’ is effectively the doing of anything in relation to the work that is prejudicial to the author’s honour or reputation. A detailed consideration of the concept of ‘author’s reputation’ is beyond the scope of this article. Nevertheless, a brief outline of the meaning of ‘author’s reputation’, within the Australian moral rights legislative context, is useful in providing a clear line of demarcation between the concepts of ‘author’s honour’ and ‘author’s reputation’.[39]
Any understanding of the protection given to the author’s reputation, in the Australian moral rights legislative context, must be consistent with that protection being a right of integrity of authorship in respect of the work.[40] That right is, according to the view that we have expressed earlier in this article,[41] the author’s right to have his or her act of creating the work remain whole, complete and intact. When that right is expressed as a protection of the author’s reputation (that is, as a protection of the regard or esteem with which the author is held in the minds of others[42]), it must be understood as the author’s right to have his or her act of creating the work remain whole, complete and intact in the minds of others. Thus, if the protection of the author’s reputation is to be interpreted in accordance with it being a right of integrity of authorship in respect of the work, it ought to be interpreted as protecting the author’s work from treatment that would mar the author’s act of creating the work in the minds of others.
The following two examples illustrate the difference between protecting the author’s honour and protecting the author’s reputation. Statements that are critical of an author’s book may prejudice the author’s reputation[43] but cannot generally be said to interfere with the author’s act of creating the work, and therefore cannot generally be said to prejudice the author’s honour.[44] On the other hand, an original painting may be altered in a way that improves its artistic quality and enhances (rather than prejudices) the author’s reputation, but that alteration can in certain circumstances constitute interference with the author’s act of creating the work, and hence can prejudice the author’s honour.
To sum up, whilst ‘author’s honour’ and ‘author’s reputation’ are closely related concepts, in that both involve respect, each can be clearly distinguished from the other. The legislative protection of the author’s honour protects the author’s entitlement to respect by protecting the work from treatment that actually interferes with the author’s act of creating the work. In contrast (and subject to such qualifications as may emerge from a detailed examination of the concept of ‘author’s reputation’), the legislative protection of the author’s reputation protects the regard, respect or esteem with which the author is held in the minds of others by protecting the work from treatment that would mar the author’s act of creating the work in the minds of others.
We have interpreted the concept of ‘author’s honour’ to be the author’s entitlement to respect. An understanding of that entitlement must be consistent with the entitlement being, as it necessarily is according to the Australian moral rights legislation, a right of integrity of authorship. Recognition of that requirement for consistency, combined with our analysis of the meaning of ‘right of integrity of authorship’, has led us to conclude that the author’s entitlement to respect is the author’s entitlement to have his or her act of creating the work protected from interference. As a result, if the author’s act of creating the work is interfered with then there is prejudice to the author’s honour.
The identical treatment of the whole spectrum of works protected by the Australian moral rights legislation does not have the same effect on the authors’ acts of creating their works, as these works result from different types of acts of creating. For example, a poet and an engineer are both involved in the act of creating a work but the poet’s act of creating a work, whose material form must satisfy personal artistic requirements in order to be expressive of some feeling or thought, is different from the engineer’s act of creating a work whose material form is designed to satisfy the objective technical requirements that enable it to be functional. In saying this, we do not mean to imply that a poet is more creative than an engineer, but rather that the type of role which constitutes the authorship of the poet is different from the type of role which constitutes the authorship of the engineer.
It is important that there is a logically consistent approach to determining when treatment of a work interferes with the author’s act of creating the work, and why particular treatment of one type of work constitutes an interference with the author’s act of creating the work but the same treatment of another type of work does not cause such an interference. Such an approach requires one to identify what it is about one type of authorial role that distinguishes it from another type of authorial role. With this in mind, we have developed the following conceptual framework. We identify and understand the author’s authorial role (or act of creating the work) as the author’s act of creating a particular material form to accomplish a particular task(s). When we speak of the ‘task(s)’ that a work’s material form was created to accomplish, we are considering the task(s) from a perspective which focuses on two elements. The first is whether one of the tasks that the work’s material form (or a substantial part[45] of the work’s material form) was created to accomplish was to convey a personal dimension of the author, or whether the work’s material form was solely created to satisfy requirements external to and independent of the author’s personal dimension. The second is whether the work’s material form (or the part of the work’s material form referred to above) can be said to have been created to be subject to change by persons other than the author. The four alternatives that result from a combination of these two elements are the submitted points of distinction between different types of acts of creating, and they enable the wide variety of works protected by the legislation to be categorised into four basic types. Whilst some of the author’s intentions may be of relevance in identifying the ‘task(s)’ in the sense referred to, many of them will not be. Therefore, we do not simply look to the author’s intentions to identify the task(s) that the work’s material form was created to accomplish.
Our conceptual framework is not the only possible way of identifying and understanding the nature of the author’s act of creating the work. However, it is our suggested approach since it can be used to distinguish between the varied works that come within the ambit of the Australian moral rights legislation, and it can then assist in determining, in a logically consistent manner, when treatment of a work interferes with the author’s act of creating that work.
A personal dimension of the author is something personal about the author, and is dependent upon the author. A personal dimension of the author, in the context of the creation of a work’s material form, refers to the following:
Therefore, a personal dimension of the author refers to what the author personally wanted to convey through the work’s material form and/or the way in which the author personally wanted the work’s content to be conveyed.
When we say that a work’s material form was created to accomplish the task of conveying a personal dimension of its author, what we mean is that one of the tasks that the work’s material form (or a substantial part of the work’s material form) was created to accomplish was to serve as a means by which its author could convey his or her personal content or style as being his or her personal content or style. It follows that a work’s material form cannot be said to have been created to convey an author’s personal dimension if it was solely created to satisfy demands or requirements which were set externally to and independently of the author’s personal dimension: for example, where the work’s material form was solely created to satisfy demands or requirements set by a person other than the author, or demands or requirements of a technical, functional, commercial, utilitarian, aesthetic or other nature which were set independently of the author’s personal dimension. Consequently, a work’s material form created to convey a personal dimension of its author is to be contrasted with a work’s material form solely created to satisfy requirements that are external to and independent of the author’s personal dimension.[46]
A work’s material form specifically created to accomplish the task of conveying a personal dimension of its author is to be distinguished from a work’s material form which simply contains a personal dimension of the work’s author. Almost any work contains within its material form a personal dimension of its author. That is, almost any work contains something of its author’s style, thoughts, feelings, opinions, etc. For example, a product designer who creates a design drawing of a toy truck to be functional but also to be cute, generally expresses at least something of his or her personal idea of cuteness in the design drawing. Therefore, the mere fact that a work’s material form contains a personal dimension of its author does not help to distinguish between the many different types of works.
Further, a work’s material form may contain a personal dimension of its author, and indeed may convey his or her personal dimension, yet it is possible that one of the tasks that the work’s material form was created to accomplish was not that it should convey a personal dimension of its author. The following example illustrates this point. Imagine that an employee lawyer drafts a letter of advice on behalf of the employer law firm to express the firm’s opinion on a particular matter. It is possible for that lawyer to draft the letter according to his or her own opinion and in his or her personal style. The letter contains, and even conveys, the employee lawyer’s personal opinion and personal style, and the employee lawyer may have intended that it do so. However, it is clear that it cannot be said that one of the tasks that the letter was created to accomplish was to convey something personal about the employee lawyer; the letter was not created to convey the employee lawyer’s opinion and style. Rather, the letter was brought into existence to convey the firm’s opinion in the style in which the firm wished its opinion to be conveyed. This conclusion is not altered by the fact that the firm may be prepared to adopt the employee’s letter as its own (both in relation to content and style).
Whether a work’s material form was created to convey a personal dimension of its author or was solely created to satisfy requirements external to and independent of the author’s personal dimension will of course depend on the particular facts of the case. However, the latter situation is more likely to be the case with a corporate logo than with a landscape painting. Similarly, it is more likely that an advertising jingle for vegemite, as compared with a short film created to be entered into a short film festival, was solely created to satisfy external requirements. The author of a corporate logo or an advertising jingle creates and shapes its material form to embody or sum up the client’s image in the former case or to sell the client’s product in the latter case, and the author’s personal dimension generally must not interfere with the work’s ability to do this. Thus, with corporate logos and advertising jingles it is usual for the author to submit the work to the client for approval, and for the author to modify and alter the work continually until the client is satisfied with the result.[47] In contrast, a landscape painting may be commissioned by a company for its offices but in such a case it is usual for the work’s ability to convey its author’s personal dimension to be one of the tasks that the work’s material form was created to accomplish. Whilst the artist may submit drafts of the work to the client for comment and even suggested changes, it is not usual for the artist to submit the work to the client for continuing modification of any details until the client is satisfied with the result. If, in a particular situation, the work is created to be so submitted then it can be categorised as having been solely created to satisfy requirements external to the author’s personal dimension. A short film created to be entered into a short film festival will seek to satisfy particular conditions of entry imposed by the film festival (such as a condition relating to the film’s length), and may attempt to satisfy what the film-maker believes the festival’s judges want to see. However, it is usual in such a case for one of the tasks that the work’s material form was created to accomplish to be the conveying of what the film-maker personally wanted to convey and in the way in which he or she personally wanted to convey that content.[48]
In summary, a work’s material form, or a substantial part of a work’s material form, can be said to have been created to convey a personal dimension of its author if one of the tasks that the work’s material form, or a substantial part of the work’s material form, was created to accomplish was to convey what the author personally wanted to convey and/or the way in which the author personally wanted the work’s content to be conveyed. This would not be the case if the creation of the work’s material form was solely to satisfy requirements external to the author’s personal dimension, such as requirements set by a person other than the author, or requirements of a technical, functional, commercial, utilitarian, aesthetic or other nature that were set independently of the author’s personal dimension. These contrasting situations represent two differing types of work: a work whose material form was created, at least as to one of its tasks, to convey a personal dimension of the author; and a work whose material form was solely created to satisfy requirements external to the author’s personal dimension.
This element focuses on whether it is implicit in the nature of the author’s act of creating the work that the work’s material form was created to be subject to change by persons other than its author.
When the work’s material form was brought into existence to convey its author’s personal dimension, then, subject to what is said in the following paragraph, it follows logically that such an authorial role implies that the work’s material form was created not to be changed by someone other than the work’s author. Clearly, if such a work’s material form is changed by someone other than the work’s author then it ceases to convey the author’s personal dimension; that is, it ceases to convey the content which the author chose to convey and/or the manner in which the author chose to convey the work’s content.
However, there are some cases where one of the tasks that the work’s material form was created to accomplish was to convey a personal dimension of the work’s author but there is nevertheless something in the nature of the work that necessitates that the work’s material form be subject to change by persons other than its author. In such cases, the work’s material form can be said to have been created to be subject to change by persons other than the work’s author. An illustration of this type of work is a work that was created to be a vehicle for conveying the author’s personal dimension but was also created to be performed. In this case, the fact that the work was created to be performed by persons other than the work’s author implies that the work was created to be subject to change by persons other than the author of the work because some change to the work’s material form is inherent in performance which necessarily involves personal interpretation. For example, the writer of a play created that work to be performed. The directors of different theatre companies may differ from each other, and may differ from the playwright, in how they direct the work’s performance. In other words, any performance of the play may depart in some respects from the way in which the play was originally written. However, differences in the play’s performance arise inevitably out of the nature of the playwright’s act of creating which was to create a work that must be performed by others.
Subject to one exception,[49] it is implicit in the creation of a work whose material form was solely created to satisfy requirements external to the author’s personal dimension, that such a work’s material form was created to be subject to change by persons other than the author. First, it is implicit that if such a work’s material form does not satisfy the particular external requirements that it was created to satisfy then the work’s material form can be changed. Secondly, it follows that such a work’s material form can also be changed if a new external requirement becomes relevant, or an existing external requirement is changed or is no longer applicable. Furthermore, where a work’s material form was solely created to satisfy requirements external to the author’s personal dimension, not only is it implicit in the creation of such a work that its material form was created to be subject to change but also that such change can be made by persons other than the author. There is nothing about a work’s material form solely created to satisfy requirements external to the author’s personal dimension that necessitates that the author must be the one to make changes to the work’s material form. The following example illustrates these principles.[50] The author of a design drawing of a power drill creates the design drawing solely to satisfy a given set of external requirements — for example, the design drawing may have to ensure that the power drill has certain functional features, and complies with specified production, safety, and perhaps even aesthetic, requirements. It is in the nature of creating such a work that if the work’s material form does not meet the external requirements which it was created to meet, or if the external requirements change, then the design drawing must be able to be adjusted accordingly. Further, such a work can be considered as having been created to be subject to change by persons other than its author because the author’s act of creating the design drawing solely to satisfy requirements that exist externally to the author’s personal dimension does not indicate that changes to the work’s material form must only be made by the work’s author.
An agreement by the author and commissioning party that changes to the work’s material form will or will not be made cannot be regarded as an intrinsic part of the author’s act of creating the work, and thus cannot be depended upon in determining whether the work’s material form was created to be subject to change by persons other than the work’s author.[51] For example, the director of a film may have created a film to be a vehicle for his or her own views and ideas on a particular subject — at least that was one of the tasks which the film was created to accomplish — but to finance the creation of this work the film director may have been required to contractually agree that the film’s investors have the right to decide on the final cut of the film. The agreement that the film’s investors have the right to change the film stands in contrast to the nature of the film director’s authorial role — this role being to create a work whose material form would convey content the film director personally chose to convey in the way the film director personally chose to convey it. This authorial role implies that the film’s material form was created not to be subject to change by persons other than its director, as any such change to the film’s material form would mean replacing part of the content and manner of expression which the film director chose to convey with content and manner of expression chosen by someone other than the film’s director.
Conversely, an author may not agree to changes being made to a work even though it is implicit in the nature of the creation of that type of work that it was created to be subject to change by persons other than the author. Take the case of, for example, the author of software which was created for a particular company, and was created to be subject to change to suit that particular company’s needs. If the author owns the copyright in the software, the author is entitled to license the use of that software subject to a condition precluding anyone other than the author from making modifications to the software. However, nothing in the author’s act of creating the software, whose material form was created solely to suit the customer’s needs, implies that modifications required by the customer cannot be made by someone other than the software’s author. That others cannot modify the software may be the result of the author’s ownership of the copyright in the software and a contractual prohibition on modifications, but it does not arise from the nature of the author’s act of creating software to suit the customer’s needs. Therefore, the fact that there exists an agreement not to change the software cannot be depended upon in seeking to identify the nature of the author’s act of creating the work, and, in particular, in seeking to identify whether the work’s material form was created to be subject to change by persons other than the work’s author.
To sum up, consideration of our conceptual framework’s second element results in the following categories of authorial role: first, an authorial role that implies that the work’s material form was created not to be changed by persons other than the work’s author; secondly, an authorial role that implies that the work’s material form was created to be subject to change by persons other than the work’s author.
Combining our conceptual framework’s first and second elements enables one to order the wide range of works covered by the Australian moral rights legislation into the following four basic types, each of which represents a different type of act of creating:
(i) one of the tasks that the work’s material form, or a substantial part of the work’s material form, was created to accomplish was to convey a personal dimension of the author, and
(ii) that material form was created not to be subject to change by persons other than the work’s author.
(i) one of the tasks that the work’s material form, or a substantial part of the work’s material form, was created to accomplish was to convey a personal dimension of the author, and
(ii) that material form was created to be subject to change (such as change in the course of performance) by persons other than the work’s author.
(i) the work’s material form was solely created to satisfy requirements set externally to and independently of the author’s personal dimension, and
(ii) that material form was created to be subject to change by persons other than the work’s author.
(i) the work’s material form was solely created to satisfy requirements set externally to and independently of the author’s personal dimension, and
(ii) that material form, or a substantial part of the work’s material form, was created not to be subject to change by persons other than the work’s author.
In determining which type of work or act of creating is applicable in any particular case one must take into account all the relevant circumstances which will assist in that determination. Those circumstances of course include the relevant objective circumstances but they also include the author’s relevant intentions. For an author’s personal intentions to be relevant they must relate to something that the work’s material form, in and of itself, is capable of conveying or achieving. To illustrate: a sculptor claims that he or she created a sculptural form to have an integrated relationship with the physical characteristics of the specific site for which it was commissioned. This intention is relevant to identifying the nature of the sculptor’s act of creating the work because where a sculptural form is shaped to suit a specific site its expressive impact is dependent upon it being located in that site. In contrast, a situation where an author’s personal intentions are not relevant is where the intentions relate to something that the work’s material form, in and of itself, is not capable of conveying or achieving. Take the example of an architect who creates an architectural plan for a building. That building, as a three-dimensional reproduction of the architectural plan, is able to satisfy certain functional and aesthetic requirements. If, to take an extreme case, the architect claims that he or she intended that the building should exclude a particular racial minority, then this intention cannot logically be seen to relate to anything that a building’s particular architectural design, in and of itself, is capable of conveying or achieving. Quite simply, a building cannot be designed in a way to exclude from its occupants a particular racial group!
According to our analysis, an author’s intentions per se are not the subject of the legislative protection of ‘author’s honour’. Rather, the legislative protection of ‘author’s honour’ protects the author’s act of creating the work from interference. If treatment of the work interferes with the author’s intentions (whether those intentions are relevant or otherwise) but does not interfere with the author’s act of creating the work, then that treatment cannot be said to prejudice the author’s honour.[52] Focusing on interference with the author’s act of creating the work, rather than on interference with the author’s intentions, is consistent with the legislative protection of ‘author’s honour’ being a ‘right of integrity of authorship’, as we have interpreted that latter term.[53] Further, focusing on interference with the author’s act of creating the work, rather than on interference with the author’s intentions, ensures that the concept of ‘author’s honour’ is rendered less vague, and does not give rise to the inappropriate results associated with a subjective interpretation that views the protection of the author’s honour simply as protection of the author’s intentions.
The issue of whether there is prejudice to the author’s honour (that is, whether there is an interference with the author’s authorial role) is separate from the issue of whether the prejudice to the author’s honour is reasonable. The issue of reasonableness is the subject of a specific defence[54] which is to be considered once derogatory treatment (in particular, the element of prejudice to the author’s honour) has been proven. By concluding that there is prejudice to the author’s honour (that is, an interference with the author’s authorial role), one is not concluding that the prejudice is unreasonable. The reasonableness or otherwise of the prejudice to the author’s honour is, according to the Australian moral rights legislation, only to be considered after such prejudice is established.
The distinction referred to in the preceding paragraph is important and is worth articulating in the following way. Some may object that the application of our analysis to a particular factual situation may result in a determination that particular treatment is prejudicial to the author’s honour even though it is apparent that the treatment is clearly reasonable. However, such an objection fails to appreciate that the Australian moral rights legislation, and hence our analysis, does not determine whether treatment constitutes prejudice to the author’s honour by reference to whether the treatment is unreasonable. The Australian moral rights legislation clearly contemplates that particular treatment may constitute prejudice to the author’s honour although such treatment is reasonable; in such a case, the defence of reasonableness will apply. What is important is to apply a consistent interpretation of ‘author’s honour’. If the particular treatment that constitutes prejudice to the author’s honour is also reasonable treatment then, according to the Australian moral rights legislation, that does not make the treatment any less prejudicial to the author’s honour. Rather, the determination of reasonableness can then be relied upon as a defence to the prima facie infringement that is constituted by the treatment being prejudicial to the author’s honour. An analysis of the defence of reasonableness is beyond the scope of this article.
In our opinion, if the doing of anything in relation to this first type of work results in the work’s material form, or a substantial part[56] of the work’s material form, no longer being able to convey the author’s personal dimension which that material form was created to convey unchanged, then there is an interference with the author’s act of creating the work, and hence there is prejudice to the author’s honour. This occurs where, for example, there is an alteration to the work’s material form, or a substantial part of the work’s material form, that was created to convey (unchanged) a personal dimension of the author. By such alteration the work’s material form no longer conveys the personal content and/or personal manner of expression that it was created to convey unchanged; hence the author’s act of creating the work is interfered with, and there is prejudice to the author’s honour. The author’s act of creating the work can also be interfered with where there is no alteration to the work’s material form. This can occur where there is a change to the work’s context that causes an alteration of the personal content that the work’s material form was created to convey.[57] Context is often an important way of conveying content and meaning; changes to a work’s context can, but do not always, alter the content that a work’s material form was created to convey. These conclusions are applied below to various factual situations.
If the original material form of a painting or sculpture (of the first type of work) is altered,[58] then quite clearly the work’s material form no longer faithfully conveys the author’s personal dimension that it was created to convey. Such alteration causes the work’s material form to no longer convey what the author personally wanted to convey through the work’s material form and/or the way in which the author personally wanted the work’s content to be conveyed. Accordingly, there is an interference with the author’s act of creating the work, and hence there is prejudice to the author’s honour.
Alterations to a reproduction of the first type of work that cause the work’s material form to no longer faithfully convey the author’s personal content or personal style that the work’s material form was created to convey, constitute interferences with the author’s act of creating the work, and hence prejudice the author’s honour. Examples are where the published versions of a poem[59] or a legal article alter the personal content and/or personal style that the manuscript versions were created to convey. That is not to say that any editorial changes to the manuscript version of a legal article, for example, constitute an interference with the author’s authorial role. The editorial changes may only change parts of the article which were not created to convey a personal dimension of the author. For example, the editor may correct spelling errors and incorrect use of grammar, or may change the formatting of the headings or the style of the footnotes. These changes are generally included in a legal article to comply with accepted conventions and/or the journal’s particular style; they are not generally included in a legal article to convey a particular message or meaning that the author wanted to convey nor are they generally included in a legal article to convey a particular personal style of the author. In any event it needs to be remembered that even if editorial changes can be categorised as constituting an interference with the author’s authorial role (and hence treatment that is prejudicial to the author’s honour), we are not concluding that the changes are therefore unreasonable. The Australian moral rights legislation, and therefore our analysis, does not determine whether treatment is prejudicial to the author’s honour by reference to whether the treatment is unreasonable.[60] The Australian moral rights legislation clearly contemplates that particular treatment may constitute prejudice to the author’s honour (that is, particular treatment may interfere with the author’s authorial role) although such treatment is reasonable. In such a case, the defence of reasonableness is satisfied.
As indicated above, there can be an interference with the author’s authorial role where there is no alteration to the work’s material form but where there is, by contextual interference, an alteration to the personal content that the work’s material form was created to convey. Take the case of an original site-specific sculpture, by which we mean a sculpture whose expressive impact depends upon it being viewed in the context of a particular site. A relocation of a site-specific sculpture to another site can in some circumstances result in the work no longer being able to faithfully convey the author’s personal content that the work’s material form was created to convey, even though there has been no alteration to the work’s material form. For example, if a sculptor created a sculpture to have a particular expressive impact, and that expressive impact depended on the sculpture being viewed in the context of the characteristics of a specific site, say a coastal headland, then the removal of that sculpture to a site lacking those characteristics, say to a city square, alters the personal expressive impact of the sculpture’s material form. This conclusion indicates that relocating a site-specific work may in some circumstances interfere with the sculptor’s act of creating the site-specific work, and hence may in some circumstances prejudice the author’s honour.[61] However, this conclusion does not indicate that such interference (or prejudice) is necessarily unreasonable. Clearly, such interference (or prejudice) can in appropriate circumstances be wholly reasonable, in which case the defence of reasonableness is satisfied and the interference (or prejudice) will be lawful.[62]
What if the treatment of the work constitutes an adaptation[63] of a work, such as a satirised reproduction of a painting, or an adaptation of a literary classic for children? The original work was not created, in the case of the painting, to serve as a vehicle for satire or, in the case of the literary classic, to be expressed in a form for children. The material forms of the original painting and book were created to convey what the authors personally wanted to express through the works’ material forms and in the way in which the authors personally wanted that content to be expressed. The version of the literary classic for children, and the satirised reproduction of the original painting, are clearly alterations to the material form of the original works that were created to convey a personal dimension of the original writer and painter, and therefore ought to be recognised as interferences with the original writer’s and painter’s roles as authors of their works. This conclusion holds even though the adaptations may constitute new and separate works in their own right. In the case of an adaptation of a work into a different medium from that of the underlying work (such as in the case of a film version of a novel), it is not clear whether the adaptation alters the material form of the underlying work. On the one hand, it may be difficult to see how the material form of a book can be changed by a film version of that book, the two material forms being so different from each other. On the other hand, adaptation of a work into another medium may be seen as an extreme change of the material form of the underlying work. In any case, an adaptation of a work into a different medium from that of the underlying work has the capacity (depending upon how the relationship between the underlying work and the adaptation is presented) to change the personal content of the underlying work. Where that capacity is realised, then there is an interference with the author’s role as author of the work. Of course, a conclusion that an adaptation of a work constitutes an interference with the author’s authorial role does not necessarily lead to the conclusion that such an adaptation is unreasonable and unlawful. An adaptation may well be reasonable, in which case the defence of reasonableness is satisfied and the adaptation is lawful.[64]
If treatment of the first type of work neither changes the work’s material form nor changes by other means (for example, by contextual change) the personal content which the work’s material form was created to convey, then the treatment does not interfere with the personal dimension of the author that the work’s material form was created to convey. In other words, the treatment does not alter what the author personally wanted to convey through the work’s material form, nor does the treatment alter the way in which the author personally wanted that content to be conveyed. Hence, the treatment does not interfere with the author’s act of creating the work and, therefore, the treatment does not prejudice the author’s honour. Take, for example, a critique of a work. A critique cannot alter the material form of a book. Further, a critique of a book generally does not alter the content that a book was created to convey: generally the content which a book was created to convey remains capable of being conveyed to the reader of the book notwithstanding the existence of the critique. The critique may be very damning of the book, and in such case the critique is no doubt contrary to how the book’s author intended that the book would be received. However, the fact that the critique is contrary to the author’s intention that the book be well received is not the point. The issue is whether the critique interferes with the author’s act of creating the work: generally it does not. To take another example, a sculptor may have intended for his or her sculpture to be located in a highly prestigious site. The sculpture may be relocated to another, less prestigious, site. This is contrary to the sculptor’s intentions. However, the relocation cannot affect the sculpture’s material form. Therefore, if the relocation does not affect the personal content that the sculptor created the sculpture to convey, then the relocation does not constitute an interference with the sculptor’s act of creating that work, and therefore there is no prejudice to the sculptor’s honour. By way of further example, if a defendant gave expression to his or her lack of regard for a sculpture by making a rude remark or gesture whilst walking past the sculpture, such treatment does not interfere with the author’s act of creating the work and hence does not prejudice the author’s honour. The rude remark or gesture does not interfere with the material form of the sculpture. Nor does it interfere with the content which the sculpture was created to convey. The feeling or meaning which the sculpture was created to convey remains capable of being conveyed to the viewer notwithstanding the making of the rude remark or gesture. Such treatment is contrary to how the sculptor intended that the sculpture would be regarded but that is not the relevant issue. The treatment does not have the capacity to interfere with the sculptor’s act of creating the sculpture, and hence there is no prejudice to the sculptor’s honour.
Although the Australian moral rights legislation provides by way of specific statutory defence that if a particular notification process set out in the legislation is followed, a change in, or the relocation, demolition or destruction of, a building is not an infringement of the author’s right of integrity of authorship in respect of the building, or in respect of any plans or instructions used in the construction of the building or a part of the building,[65] nevertheless it is helpful to examine how our analysis of the concept of ‘author’s honour’ applies in relation to buildings. In any event, the application of our analysis to buildings has particular relevance where the particular notification process referred to above, which qualifies the specific building defence, is not satisfied.
An architectural plan must necessarily satisfy functional requirements independent of the architect’s personal dimension. Sometimes an architectural plan can also be created in order to give material expression to its author’s personal artistic vision. In relation to such an architectural plan it can be said that one of the tasks that the work’s material form was created to satisfy was the task that it convey unchanged a personal dimension of the architect. In other words, one of the tasks which such an architectural plan was created to accomplish was to convey what the architect personally wanted to convey and in the way in which the architect personally wanted to convey that content. In such a case, there is an interference with the architect’s act of creating the work where there is an alteration (whether an alteration of the plan or an alteration of the building) that interferes with the personal dimension which the architect created the work to convey. A well-known example of an architectural plan created to express the architect’s personal vision is the profoundly unique plan of the Sydney Opera House by Joern Utzon; at least one of the tasks which that architectural plan, or at least a substantial part of that architectural plan, was created to accomplish was to express Utzon’s personal vision. Utzon, in describing his architectural vision for the Sydney Opera House, commented that it was based on the desire to take people from their daily routine into a world of fantasy that they could share with the musicians and actors who would perform there.[66] The conclusion that an alteration to that part of an architectural plan which was created to convey the architect’s personal vision amounts to an interference with the architect’s act of creating the work (and hence prejudices the author’s honour), does not indicate that such interference (or prejudice) is necessarily unreasonable. Clearly, such interference can in appropriate circumstances be wholly reasonable (in which case the defence of reasonableness will be satisfied).[67]
The architect’s act of creating a work that conveys his or her personal dimension is a different type of act of creating from that of the architect who places his or her design skills wholly in the service of a client in order to satisfy the client’s needs, requirements and desires. The latter type of act of creating is represented by the third type of work, and is discussed briefly (by way of contrast to the first type of work) in what follows. Commonly, if an architect designs a home for a client, whilst the architectural design may contain a great deal of that architect’s personal sense of style, nevertheless the home’s ability to convey the architect’s personal dimension is not one of the requirements that the architectural plan is created to satisfy. That is, it cannot generally be said that one of the requirements that such an architectural plan is created to satisfy is to convey what the architect personally wanted to convey and in the way in which the architect personally wanted to convey it. Typically, in the case of such an architectural plan for a residential home, if the client wishes for any particular architectural feature to be changed then it is expected that it will be changed. In such a situation, the architectural plan is created to satisfy requirements wholly external to the architect’s personal dimension, consisting of the necessary functional and technical requirements as well as the client’s needs and desires. Alterations to such an architectural plan (whether by way of alteration of the plan itself or alteration of the home) — say, alteration due to the client’s desire to change some aspect of the design of the home — cannot be construed as interfering with the architect’s act of creating the work which is to create a plan wholly aimed at satisfying functional and technical requirements as well as the desires and needs of the client.
If the doing of anything in relation to this second type of work results in the work’s material form, or a substantial part of the work’s material form, no longer being able to convey the author’s personal dimension which that material form was created to convey, that does not necessarily lead to the conclusion that there has been an interference with the author’s authorial role. This is because the work’s material form, or the substantial part of the work’s material form, was created to be subject to change by persons other than the work’s author, and that change has the potential to interfere with the personal dimension of the author which the work’s material form, or the substantial part of the work’s material form, was created to convey. In our opinion, there is an interference with the author’s role as author (and hence there is prejudice to the author’s honour) when there is the doing of anything in relation to the work that results in the work’s material form, or the substantial part of the work’s material form, no longer being able to faithfully convey the author’s personal dimension which that material form was created to convey, provided that the interference goes beyond the nature of interference necessitated by the type of change that the work’s material form was created to be subject to.
For example, take the case of a song created to be performed by persons other than its author. It is an inevitable feature of the performance of a song that different musicians and singers can feel, interpret and perform a song differently from each other and differently from the way in which the author created the song to be performed. A song that was created to be performed by persons other than its author was created to be subject to those changes that are an inevitable feature of performance. The changes involved in the performance of a song may involve changes to accommodate the music to the idiosyncrasies of different instruments, slowing the tempo, syncopating the rhythm, alterations to the phrasing of the words, additions such as talking directly to the audience in the midst of performing the song, or melody embellishments of the vocal part. However, the fact that a work’s material form was created to be performed does not mean that the work’s material form was created to be subject to any treatment in any performance. There is a difference, for example, between the amount of change allowed in the performance of a classical score and that of a jazz composition. In the case of Western classical music, the orchestra is not expected to improvise on a given score. The individual orchestral players submit to the interpretation of the conductor who follows the written notes and phrases of the score as far as possible but some musical elements, such as tempo, cannot be symbolically shown with exacting precision in a written score. In order to interpret those musical elements that cannot be wholly given in the score, the conductor is guided by his or her own insight into the ideas or feelings that he or she believes the composer is expressing. By contrast, in the case of a jazz composition the individual musicians are expected to add to, extend, interpret and freely improvise upon a given work so that music is newly created by the musicians at each performance.
We now turn to consider treatments of the second type of work that do not change the material form of the work but change the personal content of the work by contextual interference. The fact that in the case of a work of the second type the work’s material form was created to be subject to change, and hence its personal content was also created to be subject to change, does not mean that the work can be performed or played in any context regardless of the effect of such context on the personal content that the work was created to convey. To illustrate, if a classical musical piece composed by a Russian communist was reproduced in a propaganda film about the virtues of capitalism in the United States of America in such a way that the musical piece became associated with, and became seen to be promoting, the film’s message, then the personal content that the music was created to convey can be said to have been altered by the reproduction of the music in the context of the film, with that alteration of personal content being beyond the type of change which the work’s personal content was created to be subject to.[69] So too, a reproduction of a work (such as a song) in the context of an advertising or other campaign promoting a controversial message (for example, smoking or euthanasia) can, in some circumstances, cause the work’s content to be altered to support the subject being advanced by the advertising or other campaign; such alteration of the work’s content is generally beyond the type of change which the work’s personal content was created to be subject to. However, there will be situations where a work appears or is reproduced in objectionable contexts but such contexts do not alter the personal content which the work’s material form was created to convey.
In our opinion, it follows from the nature of this third type of work that if there is the doing of anything in relation to it in order to satisfy the requirements that the work’s material form was created to satisfy, or to satisfy changed requirements that need to be satisfied, then the treatment does not constitute an interference with the author’s act of creating the work.[71]
By way of example,[72] let us consider engineering drawings for expansion joints which are used in road bridge structures.[73] Such engineering drawings may contain something of the engineer’s personal dimension (such as the engineer’s personal understanding of how an expansion joint can best meet the requirements of bridge design), and they may even convey such a personal dimension. However, as discussed earlier in this article,[74] whether a work’s material form contains or conveys a personal dimension of its author does not assist an identification of the nature of the author’s act of creating the work as a precursor for determining whether there has been an interference with that act. One must instead consider whether one of the tasks that the work’s material form was created to accomplish was to convey a personal dimension of the author, or whether the work’s material form was solely created to satisfy requirements external to the author’s personal dimension. Typically, an engineer who designs expansion joints for use in a road bridge structure places his or her design skills wholly in the service of a client in order to satisfy the needs of the client, and the functional, technical, safety and other requirements set by bridge and expansion joint design. Those needs and requirements are set externally to the engineer’s personal dimension. If there is a change to the external requirements that the engineering drawings must meet (such as if there is a changed safety requirement or a need to accommodate the expansion joint to a larger expansion gap or a need to accommodate a view that the engineer’s drawings do not satisfy the original external requirements) then the engineering drawings must be able to be, and are created to be, changed to respond to the relevant external needs and requirements. Such change cannot be construed as constituting an interference with the authorial role of the engineer which was to create engineering drawings to satisfy requirements external to and independent of the author’s personal dimension.
In the case of a political speech-writer, the speech may contain and convey content that the speech-writer personally wanted to convey, and may contain and convey the speech-writer’s personal manner of expression. However, conveying the personal content and style of the speech-writer is not one of the tasks which the speech was created to accomplish. Rather, the speech was solely created to represent the politician’s position on a particular issue. That is, the speech was solely created to satisfy requirements set externally to the speech-writer’s personal dimension. Therefore, an alteration to the speech by the politician to satisfy those external requirements (that is, to accommodate what the politician wanted to convey and in the way in which he or she wished to convey it) does not constitute an interference with the speech-writer’s authorial role.
Now consider a situation where a poet is engaged by the federal government to prepare a draft preamble to the Australian Constitution. After the poet submits the draft preamble to the government, changes are made by the government.[75] The preamble as originally drafted no doubt contained and conveyed a personal dimension of the poet, and the poet may well have intended for it to do so and for it to remain unchanged. However, it cannot be said that one of the tasks for the creation of the preamble was to create a work to convey a personal dimension of the poet — that is, to convey what the poet personally wanted to convey in the way the poet personally wanted to convey it. Rather, the preamble was solely created to satisfy the aspirations of the Australian people as understood by their representative, the government. In other words, the draft preamble was created to satisfy matters independent of the poet’s personal dimension. Therefore, changes to the draft preamble that the government may make to reflect more faithfully and fully what it understands to be the aspirations of the Australian people cannot be seen as an interference with the poet’s authorial role.
In contrast to the situations referred to above involving the political speech-writer and the author of the draft constitutional preamble (both being examples of the third type of work), is the case of a report of a doctor’s opinion on a patient’s condition and prognosis (being an example of the first type of work). A doctor’s report will not only contain and convey the doctor’s personal understanding and opinion of the patient’s condition and prognosis, but its material form can also be said to have been created to convey that particular personal understanding and opinion. Any change to the doctor’s report which causes the report to convey something different from that which it was created to convey constitutes an interference with the doctor’s authorial role. This is so even if the doctor’s opinion was wrong and the alteration corrected the doctor’s opinion, since the doctor’s report was created to convey the doctor’s opinion and not another person’s opinion.
In the case of this fourth type of work, the work’s material form was created to continue to exist just as it was fashioned by its author but this is not because it was created to convey a personal dimension of its author. In such a situation, an alteration to the work’s material form[77] by persons other than the work’s author, even if done to satisfy requirements external to the author’s personal dimension, interferes with the author’s authorial role since the work’s material form is by its very nature created not to be changed by persons other than the work’s author. Also, if one of the external requirements which the work’s material form was created to satisfy was the requirement that it convey certain (non-personal) content unchanged, then changing the work’s context, such that there is an alteration of that (non-personal) content, constitutes an interference with the author’s authorial role.
This fourth type of work is very unusual. One example is a traditional Australian Aboriginal painting which was painted by a clan member authorised by traditional Aboriginal customary law to do so; the painting being based upon, or derived from, a sacred pre-existing design.[78] With such a work, although it is based upon, or derived from, a pre-existing design there is still scope for some artistic interpretation to take place.[79] Therefore, the painting may contain some element of the painter’s personal content and personal style. However, in the case of a traditional Aboriginal artwork created by a traditionally-oriented Aborigine it may be that the painting was not created to convey the personal content or personal style of the clan member/painter. Rather, it may be that the painting was created to tap into the powers of the Ancestral Being(s) represented in the underlying pre-existing design,[80] this being one of the external requirements (set by Aboriginal customary law) that the work’s material form was created to satisfy. In such a case, it may be implicit in the nature of the traditionally-oriented Aborigine’s act of representing the sacred pre-existing design that other clan members are, by reason of their genealogical link to the Ancestral Being(s) associated with the sacred design, empowered to represent the particular design[81] but that people not belonging to the clan cannot represent, let alone change, the sacred design. Consequently, changes to the painting, which alter the sacred design, by persons other than the painter and the remaining clan members who are empowered to represent the sacred design, constitute an interference with the painter’s act of creating the work. Further, if one of the requirements which the painting was created to satisfy was the conveying of certain (non-personal) content (such as sacred power) which was not to be changed, then any treatment which interferes with that non-personal sacred content, for example by contextual alteration, also constitutes interference with the painter’s authorial role even though there is no change to the work’s material form.
The conceptual framework developed in this article to identify the nature of the author’s authorial role, and to assist in determining when treatment of the work interferes with that role, can also be used in the case of works of joint authorship. Thus, in the case of the first type of work, where joint authors create a work to convey their personal dimensions unchanged, if someone other than the work’s joint authors alters a substantial part of the work’s material form which was created to convey the authors’ personal dimensions, then such treatment of the work will constitute an interference with the authors’ act of creating the work (and hence will prejudice the joint authors’ honour).
It is important to emphasise that a work of joint authorship is defined as a work that has been produced by the collaboration of two or more authors and in which the contribution of each author is not separate from the contribution of the other author(s).[82] Thus, joint authors who create a work to convey their personal dimensions are not creating a work that conveys the personal dimension of each author individually or independently of the other author(s). Rather, joint authors are involved in an act of creating a work to convey their personal dimensions jointly. Therefore, in the case of the first type of work whose material form was created to convey (unchanged) the personal dimensions of its joint authors, it follows that if one joint author, independently of the second joint author, alters a substantial part of the work’s material form that was created to convey such personal dimensions, then the alteration constitutes an interference with the second joint author’s act of creating (and hence prejudices the second joint author’s honour). This is because the joint authors’ act of creating the work is an act of creating a work to convey what both authors jointly wished to convey, and to convey that content in the way in which both authors jointly wished it to be conveyed.
This article has attempted to present a clear and comprehensive understanding of ‘author’s honour’ within the context of the Australian moral rights legislation. In our opinion, within this context ‘author’s honour’ means ‘author’s entitlement to respect’. To fully understand the concept of ‘author’s honour’ or ‘author’s entitlement to respect’ one must appreciate that the protection of ‘author’s honour’ is, according to the Australian moral rights legislation, a right of integrity of authorship. The recognition of this linkage, combined with our analysis of the meaning of ‘right of integrity of authorship’, led us to conclude that ‘author’s honour’ is the author’s entitlement to have his or her act of creating the work protected from interference. If there is an interference with the author’s act of creating the work then there is prejudice to the author’s honour. In this article we have used the terms ‘author’s act of creating the work’ and the ‘author’s role as author of the work’ (that is, the ‘author’s authorial role’) interchangeably to describe the author’s authorship as they constitute the same activity.
We have developed a conceptual framework that set out how to identify the author’s authorial role, distinguish between different types of authorial roles, and thereby distinguish between the varied types of works that come within the ambit of the Australian moral rights legislation. Our conceptual framework was then used to assist in determining when treatment of a work interferes with the author’s authorial role, and hence prejudices the author’s honour.
An important purpose of the enactment of the Australian moral rights legislation is to comply with Australia’s international obligations under article 6bis of the Berne Convention.[83] Article 6bis(1) provides, inter alia, that the ‘author shall have the right to ... object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation’.[84] Our interpretation of the meaning of ‘author’s honour’ as the author’s entitlement to respect is consistent with the fact that the right of integrity contained in article 6bis(1) is referred to as the ‘right of respect’ in the World Intellectual Property Organization’s Guide to the Berne Convention.[85] Further, our interpretation of ‘author’s honour’ is consistent with that part of the report of the Rapporteur General at the 1948 Brussels Conference for the Revision of the Berne Convention which stated that ‘the author should be protected as a writer just as much as in his capacity as a personality on the literary scene’.[86] The words ‘as a writer’ and ‘as a personality on the literary scene’ are imprecise. However, a major study of the Berne Convention[87] gives the following example to illustrate the practical operation of the protection implied by these words: the author of a textbook would be protected not only from changes such as typographical errors and mistakes in the footnotes but also from changes to the work which represent the author as possessing certain opinions or views which in fact he or she did not hold.[88] The protection illustrated in the example referred to accords with our conclusions concerning the protection given to ‘author’s honour’. In particular, our approach would, for example, protect a novelist from changes which interfere with his or her ideas and beliefs expressed in the novel. However, it is also our contention that there are different types of authorial roles from that illustrated by the example of a writer on the literary scene. To understand the protection of ‘author’s honour’ in any particular case, one must examine the type of authorial role involved in the creation of the work.
This article is not seeking to articulate support for, or advance a case against, the Australian moral rights legislation. Simply, no view on that matter is expressed one way or the other. Our objective in writing this article has been to identify and articulate an understanding of ‘author’s honour’, in its legislative context, which is capable of being consistently applied across the wide range of differing types of works and treatments of them. One cannot sidestep a consideration of the concept of ‘author’s honour’ in the hope that the application of the defence of reasonableness will render the correct result. It is of course true that a defence of reasonableness is available: that is, there is no infringement of an author’s right of integrity of authorship if the defendant establishes that it was reasonable in all the circumstances to subject the work to the derogatory treatment. However, in considering the defence of reasonableness, the issue is not whether the defendant’s treatment of the work, whatever that treatment may have been, was reasonable. Rather, the issue is whether it was reasonable to subject the work to the derogatory treatment. And ‘derogatory treatment’ is legislatively defined by reference to the concept of prejudice to the ‘author’s honour’. Further, avoiding a determination of whether the defendant’s treatment of the work was prejudicial to the author’s honour, and simply determining whether the defendant’s treatment of the work, whatever it may have been, was reasonable, is unacceptable as such an approach makes the Australian moral rights legislation’s concept of ‘derogatory treatment’ redundant. Clearly, the application of the right of integrity of authorship requires an understanding of the concept of ‘author’s honour’. It is hoped that this article assists that understanding.
[*] BEc, LLB, LLM (Monash). Dean Ellinson is a Special Counsel with Blake Dawson Waldron. The views expressed in this article are those of the authors and not of Blake Dawson Waldron.
[†] BA (Syd), DipEd (Sydney College of Advanced Education). Eliezer Symonds is a poet. The authors gratefully acknowledge the very helpful comments made by Tony Pagone QC and the Review’s anonymous referee.
[1] The term ‘author’ is used in relation to all the works protected under the amending legislation. In so far as ‘cinematograph films’ are concerned, the amending legislation defines ‘author’ as the director of the film, the producer of the film, and the screenwriter of the film: s 189 of the Copyright Act as amended by the Copyright Amendment (Moral Rights) Act 2000 (Cth). In relation to other protected works, the term ‘author’ is not defined and is to be understood in its copyright law sense.
All legislative sections referred to in this article are references to sections of the amended Copyright Act unless there is an indication to the contrary.
[2] The works which are protected under the amending legislation are ‘literary works’, ‘dramatic works’, ‘musical works’, ‘artistic works’, and ‘cinematograph films’ (as those terms are defined by the Copyright Act). A reference in this article to a ‘work’ is a reference to any one of those works unless there is an indication to the contrary.
[3] Section 195AI(1). The amended Copyright Act also provides authors of works with a new right of attribution of authorship in respect of their works; that is, the right of an author of a work to be identified as the author of the work (s 193(1)). The amended Copyright Act re-enacts, and extends to cinematograph films, the pre-existing right in the Copyright Act not to have authorship falsely attributed (s 195AC(1)). Consideration of the right of attribution of authorship, and the right not to have authorship of a work falsely attributed, is beyond the scope of this article.
[4] A summary of the Australian moral rights legislation is contained in Dean Ellinson, ‘New Moral Rights Legislation — Greater Rights for Copyright Authors’ [2001] LawIJV 268; (2001) 75(7) Law Institute Journal 76.
[5] The right of integrity of authorship applies ‘in relation to a whole or a substantial part of the work’: s 195AZH.
[7] Eg, the relocation of Ron Robertson-Swann’s ‘Yellow Peril’ sculpture from Melbourne’s City Square to a site in Batman Park on the banks of the Yarra River: see Stuart McLean, ‘New Site for Yellow Peril Blasted’, Daily Telegraph (Sydney), 17 June 1981, 12.
[8] See Roland Perry, ‘Writing the Don’, Saturday Extra, The Age (Melbourne), 3 March 2001, 1, 2.
[9] See Buffet v Fersing CA Paris, 30 May 1962, D 1962 Jur, 570.
[10] Commonwealth, Attorney-General’s Department, Proposed Moral Rights Legislation for Copyright Creators (1994) 61.
[11] Ibid.
[12] Snow v The Eaton Centre (1982) 70 CPR (2nd) 105.
[13] See Schott Musik International GmbH & Co v Colossal Records of Australia Pty Ltd (1996) 36 IPR 267; aff’d (1997) 38 IPR 1.
[14] See Misha Ketchell, ‘Farnham a Reluctant Voice for the Forces of Subversion’, The Age (Melbourne), 25 August 2000, 9. See also below n 69.
[16] The actual wording of the definition of ‘derogatory treatment’ is set out in ss 195AJ, 195AK and 1968133/s195al.html">195AL (emphasis in original):
195AJ Derogatory treatment, in relation to a literary, dramatic or musical work, means:
(a) the doing, in relation to the work, of anything that results in a material distortion of, the mutilation of, or a material alteration to, the work that is prejudicial to the author’s honour or reputation; or
(b) the doing of anything else in relation to the work that is prejudicial to the author’s honour or reputation.
195AK Derogatory treatment, in relation to an artistic work, means:
(a) the doing, in relation to the work, of anything that results in a material distortion of, the destruction or mutilation of, or a material alteration to, the work that is prejudicial to the author’s honour or reputation; or
(b) an 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; or
(c) the doing of anything else in relation to the work that is prejudicial to the author’s honour or reputation.
195AL Derogatory treatment, in relation to a cinematograph film, means:
(a) the doing, in relation to the film, of anything that results in a material distortion of, the mutilation of, or a material alteration to, the film that is prejudicial to the maker’s honour or reputation; or
(b) the doing of anything else in relation to the film that is prejudicial to the honour or reputation of the maker of the film.
[17] Sections 195AJ(a), 195AK(a) and 195AL(a).
[20] Sections 195AJ(b), 195AK(c) and 195AL(b).
[21] The term ‘material form’ is used in this article as it is understood in Australian copyright law.
[22] The Revised Explanatory Memorandum to the Australian moral rights legislation states that the third category in the legislative definition of ‘derogatory treatment’ ‘is intended to address those instances where a work is used in an inappropriate context and prejudices the author’s honour or reputation’: Revised Explanatory Memorandum, Copyright Amendment (Moral Rights) Bill 1999 (Cth) [44] (emphasis added). Therefore, the Revised Explanatory Memorandum confirms that the third category can extend to contextual alterations. However, given the clear wording of the third category, the above reference in the Revised Explanatory Memorandum cannot restrict the ordinary meaning of the statutory provision. That is, the third category can still extend to activity other than contextual alterations: see D C Pearce and R S Geddes, Statutory Interpretation in Australia (4th ed, 1996) 55–6.
[23] By way of support of this interpretation, set out below are extracts from two (non-moral rights) cases which considered the meaning of ‘in relation to’ in the context of the particular facts of those cases. The first extract is taken from In the Marriage of Schapel [1991] FamCA 119; (1991) 14 Fam LR 869, 871 (Murray J) (emphasis added). The second extract is taken from Perlman v Perlman [1984] HCA 4; (1984) 155 CLR 474, 484 (Gibbs CJ) (emphasis added).
[T]here must be an obvious relationship or connection between the proceedings and the welfare of the child ...
The words ‘in relation to’ import the existence of a connexion or association between the two proceedings, or in other words that the proceedings in question must bear an appropriate relationship to completed proceedings of the requisite kind.
[24] Lesley Brown (ed), The New Shorter Oxford English Dictionary (4th ed, 1993) 1256. The dictionary definitions referred to in this article are not the only dictionary definitions of the words being defined. Commonly, a word will have more than one meaning, and that meaning will often be dependent upon the word’s context. The definitions in this article bring into focus the meaning of ‘honour’ as that term is used in the context of the Australian moral rights legislation. In particular, any definition of ‘honour’ needs to reflect the fact that this context is concerned with the legislative protection of author’s honour, and defines that protection as being the upholding of the author’s right of integrity of authorship.
[25] Ibid 1257.
[26] Commonwealth, Parliamentary Debates, House of Representatives, 8 December 1999, 13 026 (Daryl Williams, Attorney-General) (emphasis added).
[27] Ibid 13 027 (emphasis added).
[28] Section 195AI(2).
[29] See above Part II.
[31] Ibid 150.
[32] Frederick Mish (ed), Merriam-Webster’s Collegiate Dictionary (10th ed, 1999) 78 defines ‘authorship’ as ‘the state or act of ... creating’. The author’s ‘act of creating the work’ is analysed and explained in below Part IV(A)–(E). In below Part IV(G) we consider when treatment of a work interferes with the author’s act of creating the work.
[34] The moral rights doctrine is not a code of ethics or morality.
[36] See below Part IV(G)(1) for the reasoning for this conclusion which must be understood in the context of the discussion in below Part IV(A)–(F).
[37] Brown, above n 24, 2565 (emphasis added).
[38] See above Part II.
[39] It is helpful to note that also outside the context of the Australian moral rights legislation ‘honour’ and ‘reputation’ are not interchangeable words. Rather, they signify different concepts as the following example illustrates. In Western tradition the biblical injunction to ‘honour thy father and thy mother’ has never meant to respect one’s father and mother in thought only; that is, in thought and not in behaviour. In contrast, reputation is always a matter of how others think of and regard a person. Thus, if a child behaves disrespectfully towards his or her parent, the child is not honouring the parent but that behaviour will not necessarily affect the regard in which others hold the parent. In other words, the child’s behaviour in such a situation may injure the parent’s honour but not the parent’s reputation.
[40] The Australian moral rights legislation provides that the author’s right of integrity of authorship in respect of the work is the right not to have the work subjected to derogatory treatment (see s 195AI(2)). Derogatory treatment is effectively constituted by the doing of anything in relation to the work that is prejudicial to the author’s honour or reputation. Therefore, the protection of the author’s reputation is, according to the Australian moral rights legislation, a right of integrity of authorship in respect of the work.
[41] See above Part III(B)(4).
[42] ‘Others’, in the defamation context, refers to ‘ordinary decent folk in the community taken in general’ (Gardiner v John Fairfax & Sons Pty Ltd [1942] NSWStRp 16; (1942) 42 SR (NSW) 171, 172 (Jordan CJ); Consolidated Trust Co Ltd v Browne [1948] NSWStRp 71; (1949) 49 SR (NSW) 86, 88 (Jordan CJ)) or ‘right-thinking members of society generally’ (Sim v Stretch (1936) 52 TLR 669, 671 (Lord Atkin)). Whether such an interpretation of ‘others’ is to be precisely the same in the moral rights legislative context must await a detailed examination of the concept of reputation in that context.
[43] Whether or not such statements do prejudice the author’s reputation will depend on the facts and on how the concept of ‘reputation’, when subjected to a detailed examination, is understood and developed in the present legislative context.
[44] A more detailed presentation of the reasoning for this conclusion, and for the conclusion contained in the next sentence of the text, is set out in below Part IV(G)(1), and must be understood in the context of the discussion in below Part IV(A)–(F).
[45] See above n 5.
[46] We use the term ‘solely’ in the context of the latter category of work to contrast with the former category of work where one of the tasks that the work’s material form was created to accomplish was to convey a personal dimension of the author.
[47] Whether or not a work’s material form was created to be subject to change by persons other than the work’s author can sometimes assist in determining whether a work is one or other of the two types of work referred to, but this is not always so. Therefore, according to our analysis, whether a work’s material form was created to be subject to change by persons other than the work’s author is also a separate element to be taken into account in identifying the nature of the author’s authorial role (see below Part IV(C)).
[48] Elsewhere in this article reference is made to various other examples to illustrate the contrast between, on the one hand, a work whose material form was created to convey a personal dimension of the author and, on the other hand, a work whose material form was solely created to satisfy requirements external to the author’s personal dimension. Those other examples include (in no particular order) design drawings of a power drill (below Part IV(C)), a legal article expressing the author’s opinion on a particular subject (below Part IV(G)(1)), architectural works (below Part IV(G)(1)), a speech written by a political speech-writer (below Part IV(G)(3)), a doctor’s report (below Part IV(G)(3)), and design drawings of expansion joints (below Part IV(G)(3)).
[50] An exception to these principles is discussed in below Part IV(G)(4).
[51] This is not to say that an author’s agreement to changes being made to the work by other persons is irrelevant in right of integrity cases. Such an agreement may be relevant to the defence of consent depending upon how the agreement/consent is formulated (see ss 195AW, 195AWA and 195AWB). However, that is a different issue from the one being discussed in the above text.
[52] In below Part IV(G)(1) we give examples of treatment of a work that can interfere with the author’s intentions but does not interfere with the author’s act of creating the work.
[53] See above Parts III(B)(1) and III(B)(4).
[54] There is no infringement of an author’s right of integrity of authorship if the defendant establishes that it was reasonable in all the circumstances to subject the work to the derogatory treatment: s 195AS(1). See also s 195AS(2) and (3) which sets out a non-exclusive list of matters to be taken into account in determining whether it was reasonable to subject the work to the derogatory treatment. These matters are: the nature of the work; the purpose for which the work is used (but in the case of film, an additional matter is whether the primary purpose for which the film was made was for exhibition at cinemas, for broadcasting by television or for some other use); the manner in which the work is used; any practice, in the industry in which the work is used, that is relevant to the work or the use of the work; any practice contained in a voluntary code of practice, in the industry in which the work is used, that is relevant to the work or the use of the work; whether the work was made in the course of the author’s employment, or whether the work was made under a contract for the performance by the author of services for another person (in the case of film, the matter is whether the film was made in the course of the employment of the director, producer or screenwriter who alleges that the treatment was derogatory); whether the treatment was required by law or was otherwise necessary to avoid a breach of any law; and if the work has two or more authors, their views about the treatment (although this matter is not listed in the case of films).
[55] This type of work is described with more precision in above Part IV(D).
[57] See above n 22 and accompanying text.
[58] Assuming that the alteration is to that part — which needs to be a substantial part — of the painting or sculpture which was created to convey a personal dimension of the author.
[59] The following is an interesting recent example of changes in the reproduction of a hymn (but note that the hymn is not a protected work because of the number of years since it was created). The recent publication of Together in Song: The Australian Hymn Book II (1999) includes the well-known hymn ‘All Things Bright and Beautiful’ by Cecil Frances Alexander, an Irish poet and hymn-writer. However, the original text of ‘All Things Bright and Beautiful’ was apparently adapted to an Australian sensibility with references to wild-flowers, billabongs, coral reefs and ‘gum trees green and tall’.
[60] See above Part IV(F).
[61] Section 195AT(4A) and (4B) provides a specific defence in the case of the removal or relocation of a moveable artistic work that is situated at a place that is accessible to the public, and was made for installation in that place. In particular, the specific defence deems the removal or relocation to not be an infringement of the right of integrity of authorship if a notification process, set out in the legislation, is complied with. The notification process provides the author with the opportunity, during a specified period, to make a record of the work, and to consult in good faith with the other party in relation to the intended action. If the author gives notice requiring removal of the author’s identification as author of the work, then the other party must comply with that requirement.
[62] See above Part IV(F).
[63] ‘Adaptation’ is being used in this article according to its common meaning, rather than according to the Copyright Act’s meaning of ‘adaptation’.
[64] See above Part IV(F).
[65] Section 195AT(3) and (3A). The notification process referred to in the text is described in above n 61.
[66] Gavin Souter, ‘Joern Utzon Discusses the Opera House’, The Sydney Morning Herald (Sydney), 1 July 1964, 2.
[67] See above Part IV(F).
[68] This type of work is described with more precision in above Part IV(D).
[69] In the US case of Shostakovich v Twentieth Century-Fox Film Corporation, 80 NYS 2d 575 (1948) some well-known Russian composers were aggrieved that their music had been included in a film that was anti-Soviet in character.
[70] This third type of work is described with more precision in above Part IV(D).
[71] See also above Part IV(C).
[72] See also the discussion of architectural works in above Part IV(G)(1).
[73] As a concrete bridge structure is subject to movement, including variations in length due to changes in temperature, shrinkage, loading and creep movements, provision must be made for a variable gap between the bridge structure and the abutments which are the supporting structures for the bridge at either end. The gap, called an expansion gap because it allows for the expansion of the bridge structure, needs to be covered by an expansion joint. This description is taken from Compagnie Industrielle de Precontrainte et d’Equipment des Constructions SA v First Melbourne Securities Pty Ltd [1999] FCA 660 (Unreported, Merkel J, 20 May 1999) [5].
[74] See above Part IV(B).
[75] See Tony Stephens, ‘They Turned My Poetry to Mush’, The Sydney Morning Herald (Sydney), 9 November 1999, 8.
[76] This type of work is described with more precision in above Part IV(D).
[77] Having regard to s 195AZH (see above n 5) the alteration needs to be to a substantial part of the work’s material form.
[78] In relation to the example referred to in the text, the phrase ‘persons other than the work’s author’ (referred to in the categorisation of this fourth type of work) needs to be understood as persons other than the work’s author and the remaining clan members who are empowered to represent the sacred design. This is due to the fact that in the traditional Aboriginal customary context a clan member’s representing of a sacred pre-existing design is often inseparably bound up with the clan/group.
[79] Dean Ellinson, ‘Unauthorised Reproduction of Traditional Aboriginal Art’ [1994] UNSWLawJl 12; (1994) 17 University of New South Wales Law Journal 327, 332.
[80] Ibid 330–1.
[81] In a traditional Aboriginal context, it may be that the act of creating a work to tap into the power of an Ancestral Being(s) requires that the author be linked to the Ancestral Being(s). This link is usually conceived of as being via genealogical descent. In cases where the author’s membership of a clan provides the claimed genealogical descent from the Ancestral Being(s) then the author’s act of representing the design may be inseparably bound up with the clan. It is worth noting that genealogical descent may not be the only factor needed to establish the necessary link with the Ancestral Being whose activities are manifested in the sacred design. For example, the Aborigine may also need to be a fully initiated male, in which case the other clan members empowered to represent the design will only be those who are fully initiated males.
[82] Copyright Act s 10(1). This section applies in relation to the right of integrity of authorship as there is no separate definition of ‘joint authorship’ in the Australian moral rights legislation. Therefore, if the contribution of an author can be separately identified from the contribution of the co-author, as where different authors are responsible for separate components of a work, then the authors are not ‘joint authors’ for the purposes of copyright law, and hence for the purposes of the right of integrity of authorship.
[83] Berne Convention for the Protection of Literary and Artistic Works, of 9 September 1886, the most recent revision of which is the Paris Text of 24 July, 1971. The Paris Text appears at [1978] ATS No 5. See Commonwealth, Parliamentary Debates, House of Representatives, 8 December 1999, 13 026 (Daryl Williams, Attorney-General). See also Revised Explanatory Memorandum, Copyright Amendment (Moral Rights) Bill 2000 (Cth) [2].
[84] Emphasis added. The full text of art 6bis of the Berne Convention (Paris Text) is as follows:
(1) Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work, and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation.
(2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorised by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained.
(3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.
[85] World Intellectual Property Organization, Guide to the Berne Convention for the Protection of Literary and Artistic Works (1978) 42.
[86] International Office of the Berne Union, Documents of the Brussels Conference, 5 to 26 June 1948 (1948) 97–8 (emphasis added).
[87] Staniforth Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886–1986 (1987).
[88] Ibid [8.110].
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