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Hutchings, Anthony --- "Notes Authors, Art, and the Debasing Instinct: Law and Morality in the Carmina Burana Case" [1997] SydLawRw 21; (1997) 19(3) Sydney Law Review 385

Authors, Art, and the Debasing Instinct: Law and Morality in the Carmina Burana Case

The history of art is the history of revivals

Copyright law tends not to concern itself with matters of aesthetic judgment. With[1] the courts and legislature have been united in the common belief that originality alone can satisfy the laws concern with objectivity in dealing with matters of artistic expression. It would be dangerous, as Holmes J stated inreference to the visual arts, for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.[2] This quotation had particular resonance for the contest involved in the recent case of Schott Musik International GMBH & Co v Colossal Records of Australia Pty Ltd, [3] both at first instance and on appeal to the Full Federal Court. As the first judicial interpretation of section 55(2) of the Copyright Act 1968 (Cth) (the Act), Schott Musik considered the circumstances in which adaptations of musical works can be said to debase the original, thereby losing the protection of compulsory licensing provisions. Given that the word debase is a loaded term, the case potentially raised issues not simply of aesthetic taste but of moral judgment too. The various tests established at both trial and appeal level, and the way in which they were implemented, therefore raise interesting issues about judicial interference in the progress of art and provide a thought-provoking backdrop to recent Federal Government initiatives towards moral rights legislation in Australia.


1. Facts and Background

In 1936, Carl Orff composed Carmina Burana, a piece now so well established within the classical canon that neither Tamberlin J, at first instance, nor Wilcox, Hill or Lindgren JJ, on appeal, saw any need for description or elaboration. Described by various expert witnesses in such terms as celebratory, ceremonial and joyful, this secular populist work designed to reach a large audience with essentially simple harmony and melody and exciting dance based rhythms[4] is notable for its stirring O Fortuna chorus. In 1996, the Italian group FCB released Excalibur, an adaptation of that chorus. Interestingly, the assumed familiarity with which the Court treated Orffs original stands in stark contrast to its need to place Excalibur within its own genre a genre with which, it is assumed, the Court is unfamiliar. Thus, according to Tamberlin J, FCBs techno adaptation of O Fortuna fits into a form of music particularly favoured at raves which have been described as all-night dance sessions where loud pulsating music is played. It is said that the techno genre embodies a slavish devotion to the use of rhythm as a hypnotic tool that is, largely, if not primarily, interpreted by electronic means.[5] This definitional unfamiliarity, which will be commented on later, was repeated at appeal level.[6]

It was common ground between the parties that the O Fortuna chorus constituted a substantial part of Orffs original work Carmina Burana and therefore that the techno version of that chorus could be deemed an adaptation of the work itself under section 14 of the Copyright Act 1968 (Cth).[7] Prima facie, Excalibur was therefore entitled to a compulsory licence to exploit Orffs work under section 55(1) of the Act. This section protects from copyright infringement actions anyone who makes and intends to sell a record of a work which has already been recorded and released, provided that the copyright owner is informed and paid the prescribed royalty fees. Both parties agreed that these conditions had been satisfied; the disagreement arose over the existence of a further, counteractive factor.

This factor is found in section 55(2). The subsection states that the compulsory licensing provisions described in section 55(1) above will not apply in relation to a record of an adaptation of a musical work if the adaptation debases the work.[8] And, according to the applicants, who owned and licensed the copyright to Carmina Burana, FCBs adaptation debased Orffs original masterpiece by altering its quality and integrity; by adulterating it.[9] respondent manufacturers of the techno compact disc, argued a slightly different connotation of debasement which concentrated on the need to devalue or lower in estimation the original things of which, they argued, Excalibur was not guilty.[10] As a result, since the meaning of debasement in section 55(2) had not been defined in the legislation or in legal precedent, the parties positions depended entirely on the Courts interpretation of the term and its application to the techno remix.

The implications of this previously untried provision are potentially enormous. The postmodern age has brought with it, amongst other things, an obsession with pastiche, with copying and juxtaposing different artistic styles in ways which often clash in the discordant tones of irony. Music, in particular, has witnessed countless recent upheavals of its canons. Vivaldi has been subjected to rearrangement by heavy metal guitarists, who in turn have been reinterpreted by polka enthusiasts and lounge-suited hammond organ players. Sugar-sweet pop ballads have become hard-core rap anthems. At the forefront of this process, contemporary music has been particularly responsive to recent technological advances by relying increasingly heavily on electronic sampling and, within this, using samplers in an increasing variety of ways. As the art form matures, it will inevitably become more complex, with musicians seeking inspiration from ever-diversifying sources. Classical music is an obvious choice, but other established genres are equally ripe for electronic adaptation or, depending on judicial interpretation of section 55(2), debasement.

2. The Test For Debasement Under Section 55(2)

A. The Meaning of Debase

(i) At first instance

Since the word debase was not defined by the legislation or available precedent, the parties urged the Court to consider a composite of the legislative history and the normal usages of the term debase as set out in various dictionaries[11] an approach consistent with established principles of judicial interpretation.[12] Consulting the dictionaries, Tamberlin J found subtly variant interpretations of debase, allowing a fine differentiation between either lowering the quality or integrity or damaging the value or reputation of the original work.[13] distinction is more than mere wordplay. While the latter interpretation emphasises the public reaction to the original after release of the adaptation, loosely based on fairly measurable characteristics like popularity and commercial value, the former introduces more subjective concepts like artistic quality and moral integrity. Given the laws preference for objective tests based on externally identifiable factors rather than internal judicial dispositions, Tamberlin J had little choice but to favour the latter.

The legislative history of section 55(2) made this difficult. Until the enactment of the Copyright Act 1968 (Cth), compulsory licensing had been dependent on factors which, over the history of copyright law, had become basically objective. An adaptation of an original musical work would only be refused a compulsory licence if there were material differences, stylistically or instrumentally, between the adaptation and the original compulsory licensing protection was only guaranteed if adaptations did not substantially differ in their treatment of the work, either in respect of style or ... in respect of the performers required for performing them.[14] The courts, meanwhile, were comfortably familiar with concepts of substantial similarity and sufficient resemblance, tests built up over a long line of established precedent.[15] Compulsory licensing was therefore grounded in essentially objective, consistent principles until the enactment of section 55(2), when substantive difference was replaced with debasement. Worse, the legislature failed to explain what was meant by this new test, although the alteration was seen as important at the time.[16] It was also clearly seen as a movement away from previous objective tests. The then Attorney-General referred to it as a mechanism preventing the mucking up of original works.[17] Tamberlin J concluded that [t]he word debase introduces a criterion which is significantly more value-based than the notion of substantial similarity in style, instruments or performance.[18] On appeal, the Full Federal Court drew essentially the same conclusions.

However, Tamberlin Js judgment is notable for its refusal to accept valuebased judgments as the sole criterion for testing debasement. Weighing up judicial desires for objectivity against legislative directions towards subjectivity, the trial judge balanced the two by carefully pointing out that any subjectivity should not be focused on the viewpoint of the author but on the integrity, value, esteem or quality of the work itself in other words, that the subsection in its present form is concerned with the effect of the adaptation on the work and not with the honour or reputation of the author. [19] And while a musical work may only have one author, it will have many potential listeners as many, in fact, as people in the community. As a result, the test set out by Tamberlin J incorporated an extremely wide subjectivity which left very little ground for a finding of debasement:

As musical tastes are so divergent and varied ... it is necessary in approaching the question, to pay due regard to that broad spectrum of tastes and values. It would be wrong to take a strictly analytical or pedantic view of individual changes made in the adaptation and simply find the sum of those changes to reach a conclusion. Rather, it is necessary to consider the overall impression which it is likely to make on a community with a wide range of tastes and attitudes in relation to adaptations and musical forms.[20]

Clearly, to satisfy section 55(2) an adaptation is required, in part at least, to debase the original work in the eyes of the wider community. Therefore, the test at first instance privileges the value or reputation interpretation of the term debase by establishing the wider popularity and commercial success of the original rather than its intrinsic moral and artistic value as the focal points of investigation, in considering the effect of an adaptation. This has important consequences. Essentially, the tests breadth of subjectivity acts to narrow debasement into circumstances where the overall community impression will be one of shock and distaste. And in such circumstances, the debasement of the original will arguably be so obvious that the test will essentially become a matter of almost objective judgment.

(ii) At the appellate level

Following the same line of analysis as Tamberlin J, the Full Federal Court looked to dictionary definitions and legislative histories to agree that section 55(2) did impose value judgments on the Court. However, the appeal judges differed in their acceptance and qualification of this imposition, leaving a precedent of significant uncertainty. Wilcox and Lindgren JJ, who gave separate judgments but generally concurred on significant points, quoted Tamberlin Js test of debasement with approval. However, having committed themselves to the unattractive prospect that judges may be forced to consider issues concerning[21] they were reluctant to expand the judicial test of debasement to the extent allowed by the trial judge. Tamberlin J had emphasised the effect of the adaptation on the value or reputation of the original work, consequently allowing consideration of community reactions in section 55(2) inquiries. For Wilcox and Lindgren JJ, however, the appropriate question is not the effect of the adaptation on the original work;[22] the legislature never suggested that it was necessary to show that the adaptation adversely affected the value or quality of the original work, or even its public esteem.[23] became the artistic merit of the adaptation itself a debasing adaptation must be so lacking in integrity or quality that it can properly be said to have degraded the original work.[24] The test remains a narrow one, viewing debasement as a strong term tantamount to the complete distortion or mutilation of a previous[25] However, its narrowness ultimately depends on the musical comparisons and aesthetic evaluations of the individual judges applying it. Formally, this may be a relatively minor qualification of Tamberlin Js original test, but its substantive implications are more deeply divergent. It rejects community opinion as a legitimate site of analysis in assessing debasement.

Hill J was less comfortable with the concept of judicial aesthetics.[26] Seeking, like Tamberlin J, a more objective criteria of debasement, he agreed with the trial judges emphasis on the effect of the adaptation on the original works reputation or value not the artistic merit of the adaptation itself. This prevented any reliance on subjective musicological comparison. However, it also prevented, in Hill Js opinion, any inquiry based on the economic devaluing of the original work or the opinions of a significant segment of the community ... no matter how significant that section of the community might be.[27]Instead, Hill J formulated the test of debasement as whether it is a consequence of the adaptation (taking into account that the adaptation differs from the original) that a reasonable person will be led to think less of the original work.[28] How the reasonable person is established, and whether this test allows the Court to avoid subjective analysis, is a matter of considerable doubt. Certainly, Wilcox and Lindgren JJ both rejected the notion that this approach would wholly relieve the Court from involvement in artistic censorship or questions of taste.[29]

B. Evidence, Outcomes, and Issues of Proof

Regardless of the test used to define it, the practical matter of proving debasement of Carmina Burana inevitably raised problematic issues. How could the overall impression of Excalibur on the wider community an issue central to Tamberlin Js test be adequately demonstrated, or even speculated upon? How could Hill J be satisfied that a reasonable person will be led to think less of the original work? Should Wilcox and Lindgren JJs subjective personal evaluations of the artistic integrity of Excalibur be influenced in any way by the opinions of others and, if so, which others? It is debatable whether these questions were answered in Schott Musik. Stating that the Courts are careful not to impose on the rest of society the artistic or aesthetic tastes of an individual judge or group of judges,[30] a concern repeated at appeal level, Tamberlin J proceeded to impose on the wider community the opinions of a range of expert witnesses. Most of them were primarily concerned with musicological analysis of the interaction between the techno adaptation and Orffs original, in an attempt to ascertain the nature and extent of the variations and determine whether the adaptation is so extensive, detrimental or inferior, as a whole that it amounts to debasement.[31]

If Schott Musik featured any evidence beyond expert opinion, the trial judgment does not show it. With the exception of a record store owner, all of the witnesses had gained their expertise in the world of classical music, being composers, performers or music academics and their approaches were generally confined to that world. Their combined evidence, on analysis, generally falls into two distinct approaches, each eliciting a different response from the Court. The first places emphasis on considerations external to the specific work in question the integrity of Orff and his total body of compositions, or the historical reception of Carmina Burana, rather than the central interaction between the techno adaptation and the original work. Certain witnesses, particularly those forwarding the applicants argument, spoke of Excalibur as injuring the composers emotional intentions[32] and damaging the reputation of Orffs music[33] debasement was seen as impacting more on the author than the piece itself. Tamberlin J did not sympathise with this viewpoint: having earlier emphasised the effect of the adaptation on the work and not ... the honour or reputation of the author,[34] he was quick to point out that considerations of authorial integrity as a whole did not address the relevant question posed by section 55(2).[35] This is consistent with each of the appeal judgments. Meanwhile, attempts to undermine the integrity of Carmina Burana through its associations with Nazi Germany[36] or various advertisements 37 were equally irrelevant to the specific issue at hand the interaction between Carmina Burana and its techno adaptation. As Tamberlin J pointed out, previous associations do not necessarily mean that the work is to be regarded as already diminished or debased.[38]

The second approach, favoured by the Court, saw evidence addressed directly to the quality of FCBs adaptation, or its impact on Carmina Burana. Comparisons were made between the two pieces, either unfavourably commenting on the simplicity of Excalibur (for example, [t]he loss of artistic expression is deliberate, and the effect is to denigrate the work by using a music style which is consciously opposed to the large scale choral method of performance[39] favourably emphasising such qualities as exuberance, rhythm and celebration, shared between the adaptation and the original. Meanwhile, certain witnesses described long-standing traditions of arrangement within the realms of classical music which subjected established pieces to radical alteration even, it was pointed out, electronic alteration.[40] This was seen as potentially a powerful artistic statement.[41] Finally, a music retailer gave evidence of the effect of Excalibur on the popularity of Carmina Burana it had not only sold well itself, but had also increased interest and demand for Orffs original work, being a relatively faithful rendition which extends percussion and dance beats into a more modern musical framework, bringing the work to a new audience and extending the reputation of the work in both a commercial and artistic sense. 42

At both first instance and appeal levels, the Federal Court found for the respondents Excalibur did not debase Carmina Burana and was therefore entitled to a compulsory licence under section 55(1). However, when the form of the evidence is placed alongside the tests favoured by different judges, various questions emerge. They all take the same form: how was the decision reached? Tamberlin Js emphasis on the need for a broad test featuring community-based values, rather than analysis of the similarities and differences between original work and adaptation, sits uneasily with the evidentiary approach actually adopted. Though he stated that [t]he question of whether an adaptation debases Carmina Burana is one on which both expert and non-expert members of the community may vary greatly,[43] the non-expert side of this equation was restricted to a few lines regarding the techno adaptations effect on the sales and popularity of Carmina Burana the great majority of evidence sits firmly within the expert world of classical music. This world informed the viewpoint of analysis, both that of the expert witnesses and of the Court (recall that techno music required judicial elucidation, while Carmina Burana did not). This world informed the framework of inquiry, with Excalibur being subjected to academic musical analysis and justified in terms of similar classical adaptive trends. And this world is hardly representative of the overall impression which [the adaptation] is likely to make on a community with a wide range of tastes and attitudes.[44]

The foregoing analysis constitutes a criticism of the inconsistency between Tamberlin Js wide debasement definition and the Courts relatively narrow application of it. At appeal level, however, where the judicial tests for debasement were more restricted, the criticism becomes one of legitimacy. If judges show obvious familiarity with Orff but need to define words like techno and rave, if the law of expert evidence privileges the opinions of classical composers and musicological academics above all other listeners of a work, then how can aesthetic judgments be made in an impartial manner? How can justice be seen to be done between mainstream classical composers and radical techno artists? In finding that section 55(2) forced the Court to analyse adaptations and become involved in its own appraisals of artistic merit and taste, the judgments of Wilcox and Lindgren JJ beg these questions. To be sure, debasement was defined as a strong term requiring massive degradation of the original work, and in this instance it was recognised that Excalibur has musical merit in its social context Lingren J expressed agreement with Tamberlin Js finding that, as a 1990s update of Carmina Burana, Excalibur preserves substantial and essential elements of the original intact, communicates a powerful exuberance and rhythmic character quite consistent with the character of the work.[45] But a differently inclined judge, less able to see any artistic value in techno music, may well have found Excalibur massively degrading of Carmina Burana despite a general lack of concurrence in society. It is this possibility, combined with the laws already observed familiarities with canonical classics and academic/professional expertise, which would allow justice neither to be done, nor seen to be done.

Hill Js reasonable person test raises the same possibilities, since if the reasonable person is determining the aesthetic value of an adaptation, the judge is determining the nature of the reasonable person. As Wilcox J suggested, such an approach does not wholly relieve the Court from involvement in artistic censorship or matters of taste;[46] rather, it hides judicial subjectivities under the guise of objective certainty. When Hill J stated that [a] reasonable person, in my view, would distinguish the techno version from the original as different in style and approach, while recognising that the techno version in no way detracted from[47] it was as much a statement of opinion as the decisions of Wilcox and Lindgren JJ and therefore equally amenable to the familiarities and preferences of individual judges.

3. Further Issues

A. The Broadening of Compulsory Licencing Provisions

As described earlier, section 55(2) and its requirement of debasement replaced previous stipulations of substantial difference in denying compulsory licensing to musical adaptations. Tamberlin J pointed out that debasement does not impose any limit on the extent of that variation other than the limit inherent in the notion that it must be an adaptation of a work[48] and, under section 10 of the Copyright Act 1968 (Cth), a musical adaptation is described as an arrangement or transcription of the [original] work. This renders the compulsory licensing provisions in the Copyright Act 1968 (Cth) substantially broader than their predecessors all that is required is some degree of identity between the adaptation and the original.[49] Ironically, this may allow adaptations which are so contrary offensive, even to the style and intent of the original composition, to obtain a compulsory licence simply by sharing some small identificatory features with the original. Though such adaptations would probably escape the breadth of the debasement test, their lack of substantial similarity to the original would have precluded a compulsory licence under the older provisions.

B. A New Consideration in Assessing Similarity?

Although it was little more than a formality, Tamberlin J at first instance was required to establish some degree of identity between Carmina Burana and Excalibur, its adaptation.[50] However, in comparing the two pieces he diverged significantly from established methods of comparison in copyright law. Judicial inquiry into copyright infringement has, in assessing points of substantial similarity between original works and alleged copies, concentrated on the quality and not the quantity of the features copied. Thus a relatively small section of the original work may be regarded as substantial if it is particularly representative or important to the work as a whole.[51] Once that section is judged a substantial part, a single copying of it attracts copyright infringement. Yet in Schott Musik, though it was clearly established that the O Fortuna chorus was a substantial part of the work Carmina Burana,[52] Tamberlin J placed some emphasis on quantitative analysis of the number of times it was incorporated into the Excalibur adaptation. In a statement alien to the methods of established precedent, which would have found sufficient similarity in a single use of O Fortuna, he set out the proportion of time in which the chorus appeared, to indicate that the original theme comprises a substantial part of the four tracks so that it can be properly[53] This comment may be in obiter, but its subsequent judicial reception as a consideration in assessing similarity between two works will be interesting.

C. Could the Test for Debasement be Made More Effective?

From the outset, it should be stated that Schott Musik failed to clearly articulate any one principle of debasement satisfying section 55(2). At most, Wilcox and Lindgren JJ agreed, in separate judgments, on a general proposition that the Court must make its own assessment of an adaptations aesthetic worth and degradative qualities. This is both unclear and, for reasons detailed above, unsatisfactory. Given the potential for injustice inherent in any test centred upon one individuals restricted sensibilities, the courts have rightly been reluctant to impose on the rest of society the artistic or aesthetic tastes of an individual judge or group of judges. [54] Whenever the opportunity arises, the law should follow principles which most closely approximate objectivity; principles which may be established on the evidence without recourse to individual discretion. Interpreting the requirements of section 55(2), Wilcox and Lindgren JJ found primarily subjective ideals, while Hill Js attempt at an objective reasonable person test permitted a similar (though unacknowledged) emphasis on judicial discretion. Ultimately, the only true measure of objectivity in assessing debasement is found in the decision of the trial judge.

Tamberlin Js concentration on the effect of an adaptation on the original work carried with it an emphasis on community attitudes. Debasement would occur if Excalibur caused, by association, a significant lowering in integrity, value, esteem or quality of the work, [55] and this was best tested by considering any change in community opinions towards Carmina Burana. Since debasement is a strong term, requiring a relative consensus of community outrage towards the adaptation, the test appears relatively unworkable. It relies on values which are basically impossible to demonstrate through evidence and, in the case of actually establishing debasement, will be so obvious that evidence is practically unnecessary. However, given the aesthetic and moral minefield the legislature appeared to be directing the courts into, unworkability was a small price to pay for maintaining the objective high road. In short, section 55(2) placed Tamberlin J in a bind. Without giving explicit definition to the concept of debasement a term that, under its common definition, is often imprecise and always subjective the legislature left little choice, if judicial objectivity was to be maintained, for anything but the broadest of possible interpretations. The test could certainly not be founded in the aesthetic evaluations of individual judges. Meanwhile, because the subsection in its present form is concerned with the effect of the adaptation on the work and not with the honour or reputation of the author, [56] its focal point could also not reside in the composer, Orff, a single person whose feelings and reactions might be determined with some semblance of certainty. Section 55(2) focuses on Carmina Burana itself and all those who listen to it, both now and in the future. Only by reference to this society of listeners, with their infinite variations of feeling and reaction, can true objectivity be guaranteed in seeking out debasement. Though it renders the section relatively unworkable, the only legitimate point of focus is community opinion not individual judges, and certainly not individual authors. After all, an emphasis on the latter depends on principles of moral rights, and [l]egislation embodying these principles has not been enacted in Australia.[57]

D. Proposed Moral Rights Legislation and the Potential Redundancy of Section 55(2)

Moral rights, as opposed to the economic rights protected by copyright, are personal to the author of a work. They cannot be assigned to another, being intrinsic to the relationship between creator and creation, and they are specifically tailored to the protection of that relationship. Although various categories of moral rights are recognised, two in particular stand at the core of the concept: the right of attribution, and the right of integrity. [58] The former allows authors to have the authorship of their work clearly recognised by the public. The latter, often referred to as a right of respect, gives an author the ability to prevent distortion, mutilation, modification or derogatory action in relation to her or his works. [59] Together, these form the basis of Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works (The Berne Convention), a convention to which Australia is a signatory and to which, it has been argued, Australia is not conforming.

The Berne Conventions commitment to moral rights has always carried an implicit understanding that common law member countries could implement these rights without specific legislation. It was regarded as sufficient for these rights to be protected under legal categories other than copyright [60] categories like the torts of defamation and passing off. However, revisions to the Convention and recent suggestions that the common law may in fact fall short of international obligations [61] have resulted in mounting pressure for unequivocal moral rights legislation in Australia. This culminated in a January 1996 Exposure Draft of a Bill to amend Part IX of the Copyright Act 1968 (Cth), introducing provisions for authorial rights of attribution and integrity. The creation of these rights, expressed as being additional to other title claims which might subsist in a work, generally addressed previous criticisms. Where previous actions had given only negative rights of attribution [62] (the right to prevent others false attributions of authorship), Division 2 of the Bill extended authors positive rights to attribution of authorship in respect of the work [63] and to be identified ... as the author of the work [64] in such acts as the publishing, reproduction in material form, and adaptation of the work. Meanwhile, the common laws failure to adequately provide authors with rights of integrity was rectified in Division 4 of the Bill, which stated that [t]he authors right is the right not to have the work subjected to derogatory treatment [65] and went on to define derogatory treatment as any action including distortion, mutilation and alteration of a work which was prejudicial to the authors honour or reputation. [66] Factors taken into account in determining derogatory treatment included the nature of the work, the purpose, manner and context of its use, relevant industry practices, and whether or not the work was made in the course of employment. [67] Both moral rights were expressed to have force until the end of copyright protection (life of the author plus 50 years), [68] Infringement carried a wide range of remedies including injunctions, damages, declarations of infringement and public apologies. [70]

With the change of government following the March 1996 election, the Bill was forgotten by all but those who had been lobbying for its enactment. However, continued pressure by those interest groups who have no doubt followed the [60] Ricketson, S, Is Australia in Breach of its International Obligations with Respect to the Protection of Moral Rights? [1990] MelbULawRw 5; (1990) 17 MULR 462 at 468. Schott Musik case with great interest eventually resulted in a March 1997 statement by the Minister for Communications and the Arts that moral rights reform would soon be implemented, to meet our international obligations under the Berne Convention for the Protection of Literary and Artistic Works. [71] This initiative is expected to mirror the 1996 Bill in all significant respects, and should be introduced in the next session of Parliament. [72] If passed, it will essentially make section 55(2) of the Copyright Act 1968 (Cth) completely irrelevant. What musician would try to make out an action based on the intangible debasement of their musical composition within the wider community, when the right of integrity only requires them to point to their own damaged honour and reputation? With the author as the primary focus of the action, the source of much of the evidence lies within the person who has been offended enough to litigate upon it.

This unquestionably allows for greater legal certainty than the abstract ambiguities of debasement in section 55(2). But if Schott Musik suggests that potentially narrow judicial subjectivities cannot be the foundation of a fair test of liability, it warns equally of the dangers inherent in building on authorial moral rights instead. Proponents of moral rights have argued, in response to questions about judicial competence in the realms of the ethic and the aesthetic, that Australian judges are called on to dispose of much more difficult cases than these. In cases involving art and literature, past experience indicates that they have managed to combine sensitivity with robust common sense. [73] Yet the ways in which the Courts inevitably biased viewpoint structured the enquiry in Schott Musik have already been pointed out. The uneasy definition of techno music, the confinement of comparisons within the framework of classical music, the encouragement of too much expert evidence and too little non-expert opinion: all of these make the prospect of standards based on an individuals character and integrity somewhat questionable. It has been argued that terms like honour and reputation connote generalised, objective qualities, [74] but they are undoubtedly laden with outdated quasi-chivalric notions even before being applied to the skewed strictures of judicial reasoning. Moral rights follow a very different path to the relative impartiality of copyright law and its tests of similarity; a path that Tamberlin J was quite rightly reluctant to take. Pointing out the intolerability of imposing on society the artistic or aesthetic tastes of an individual judge, his decision is a recognition of the need to leave the judgment of art to the broadest possible range of subjectivities. Moreover, it is an implicit realisation that, left to its own devices, the Court can never range that far.

Moral rights theory is particularly problematic if we consider the promotion and advancement of artistic endeavour as one of the major aims of intellectual property law. Art strides forward by continually looking over its shoulder, so that new trends and genres comment and build on what preceded them. Sometimes the comments can be harsh, but this often makes them all the more valid. As Tamberlin J quoted with approval, [a]t the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. [75] Generally novelty is repulsive because it riles against established artistic patterns the shock of the new is the radical artists every intention. Without a jolt to their sensibilities, the public will never realise that the flavour of the moment has become bland. At one point, Schott Musik referred to Sir Michael Tippetts Third Symphony, which subjects Beethovens Choral Symphony to a deliberately shocking series of distortions. It caused outrage at its first appearance; now, it is widely considered a powerful artistic statement. [76] Such artistic statements have often offended an established authors sense of honour and reputation, and they will no doubt continue to do so in the future. But, once created, a new work enters the innumerable clutches of art, of appreciation. While individuals may retain economic possession over their published work, its moral and aesthetic value becomes, through the act of public exposure, the property of all any person has every right to form any opinion of it. Between the appreciators, the denunciators, and all those with opinions somewhere in between, the production and appreciation of art becomes more diverse, more complex, more sophisticated. As it should if we accept that the primary purpose of copyright lies in the advancement of artistic endeavour. Moral rights theory does not share this purpose, turning personal opinion into law by giving artists unjustifiable power to suppress, in the name of honour, what is often most innovative and vibrant. An established author may justifiably get offended, may criticise, may disassociate themselves from a new, maybe derogatory work. But they should have no greater right than this. The power of censure should never become the power to censor.

4. Conclusion

The problems raised by Schott Musik lie less in the conceptual standpoints of its various judgments than in the concepts and legislation which formed its subjectmatter. In replacing previous substantial difference requirements with the undefined notion of debasement, section 55(2) of the Copyright Act 1968 (Cth) failed to provide the courts with enough clues for anything but an unsatisfactory test for compulsory licencing of musical works. Debasement was clearly meant to be differentiated from inquiries into similarity. It was also inconsistent with controversial moral rights arguments that have not yet been legislatively implemented. Short of an overly broad, intangibly impractical test concentrating on the original work itself and, by extension, its reception amongst the listeners of the wider community, the Court was reluctantly forced to impose its own concepts of music and musicians, its own subjectivities, on the wider community. And while the former is preferable, neither test makes good, predictable, easily applicable law. Only the legislature could have ensured a more satisfactory decision, with appropriate definitions of the term debasement and appropriate directions as to its reference points. Until such an initiative, outraged authors can expect little satisfaction from section 55(2) unless, of course, upcoming moral rights legislation makes this debate redundant. Moral rights, by establishing the author rather than their work at the centre of the laws protection against manipulations, will give significantly more certainty to this troubled area. But certainty could be ensured in more preferable ways. Rather than expecting judges to channel and choke the flows of artistic progress according to the feelings and opinions of an individual author, the legislature would be better advised to leave the future of artistic movements to those who have always judged most appropriately: the countless individuals who make up its audience. Australian copyright law has developed a comfortably objective control over arts controllable economic realms, but for good reasons it has never had any place in the slippery dimensions of aesthetic taste and morality. This should not be changed. The introduction of debasement into section 55(2) was a mistake, but one that had limited impact due to its intangibility. Moral rights, with its introduction of more easily enforced subjectivities, will be a greater and more influential mistake. For the sake of art, new artists, and judicial enforcement of the Copyright Act, it would be better if such mistakes were not made.

[*] Final year student (1997), Faculty of Law, University of Sydney. I would like to thank Dr Patricia Loughlan for her helpful comments and inspirations, both in this case note and beyond.
[1] Most notably for works of artistic craftsmanship, defined in s10(1) of the Copyright Act 1968 (Cth) as incorporating concerns of artistic quality.
[2] Bleistein v Donaldson Lithographing Company [1903] USSC 41; (1903) 188 US 239 at 251.
[3] (1997) 91 AIPC 39,071 (first instance, per Tamberlin J), and (1997) Unreported, Federal Court of Australia (appeal judgment, per Wilcox, Hill and Lindgren JJ) (Schott Musik).
[4] Id, first instance, at 39,080.
[5] Id, first instance, at 39,072.
[6] For example, see Hill J, id, appeal judgment at 5, and Lindgren J, id, appeal judgment at 18.
[7] Copyright Act 1968 (Cth) s14(1)(b): a reference to a reproduction, adaptation or copy of a work shall be read as including a reference to a reproduction, adaptation or copy of a substantial part of the work, as the case may be.
[8] Copyright Act 1968 (Cth) s55(2). Emphasis added.
[9] Above n3, first instance, at 39,076.
[10] Ibid.
[11] Above n3, first instance, at 39,073.
[12] CIC Insurance Ltd v Bankstown Football Club Limited (1997) 141 ALR 618 at 634; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320-1; Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 at 22.
[13] Above n3, first instance, at 39,076.
[14] Copyright Act 1956 (UK) s8(6), quoted by Tamberlin J Above n3, first instance, at 39,074.
[15] For example, see Hawkes & Son (London) Ltd v Paramount Films Service Ltd [1934] 1 Ch 593; Ladbroke v William Hill [1964] 1 All ER 465; Autodesk Inc. v Dyason (No 1) [1992] HCA 2; (1992) 66 ALJR 233; Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 27 IPR 133.
[16] Tamberlin J quotes the then Attorney-General, Nigel Bowen, in his second reading speech concerning the 1968 Copyright Bill, as stating that [t]he most important changes relate to the conditions precedent to the operation of the statutory licence and to control by the copyright owners of the release of records made under the licence .... Above n3, first instance, at 39, 39,075.
[17] Bowen, id at 39,075: Another matter that was raised ... was the provision for a compulsory licence in clause 55. He said that the difficulty was that once the composer had allowed his work to be put into record form by one manufacturer a second manufacturer might come along and muck up his work, to use the honourable members words. An attempt has been made to cover that possibility in sub-clause (2) of clause 55. If the production is a debased form of the work it is not covered by the freedom from copyright.
[18] Above n3, first instance, at 39,075.
[19] Id at 39,076.
[20] Id at 39,076-7.
[21] Above n3, appeal judgment, at 4.
[22] Ibid.
[23] Id, at 3.
[24] Id, at 4.
[25] Wilcox J, giving an example of the distortions involved, suggested that section 55(2) would be satisfied if the adaptation lacks its own integrity or constitutes a mere travesty of the original (ibid).
[26] Id, at 5.
[27] Id, at 12.
[28] Ibid.
[29] Wilcox J, id, at 2.
[30] Stewart J in Hay and Hay Construction Co Ltd v Sloan (1957) 12 DLR (2d) 397 at 401, quoted by Tamberlin J, above n3, first instance, at 39,077.
[31] Ibid. 1997] NOTES 391
[32] Id at 39,079.
[33] Ibid.
[34] Discussed above, n19.
[35] Above n3, first instance, at 39,079.
[36] Ibid.
[37] Id at 39,081.
[38] Ibid.
[39] Id at 39,079.
[40] Id at 39,080: electronic manipulation of existing music, which is then significantly distorted and chopped up, is also a consistent feature of Western concert hall electronic music, especially since the mid-sixties.
[41] Id at 39,081.
[42] Ibid.
[43] Ibid.
[44] Id at 39,077.
[45] Above n3, appeal judgment, at 18.
[46] Id, at 2.
[47] Id, at 13. Emphasis added.
[48] Above n3, first instance, at 39,075.
[49] Ibid. This was confirmed on appeal.
[50] Above n3, first instance, at 39,075.
[51] For example, Hawkes & Son (London) Ltd v Paramount Film Services Ltd [1934] 1 Ch 593; Autodesk Inc v Dyason (No 1) [1992] HCA 2; (1992) 66 ALJR 233.
[52] Above n3, first instance, at 39,072.
[53] Id at 39,078.
[54] Id at 39,077.
[55] Id at 39,076. 1997] NOTES 395
[56] Ibid.
[57] Ibid.
[58] Other recognised moral rights include the right of divulgation (the right of an author to decided if and how their work will be released to the public) and the right of withdrawal (the authors right to withdraw a work from the public).
[59] Wyburn, M, The Attorney-Generals Departments Moral Rights Discussion Paper: Background and Proposals (1995) 23 Australian Business LR 318 at 320.
[60] at 476ff, and Wyburn, above n59 at 327-9.
[61] See, eg, Ricketson, above n
[62] Above n60 at 478-9.
[63] Exposure Draft, provision 192(1).
[64] Id, provision 192(2).
[65] Id, provision 195AH(2).
[66] Id, provision 195AI(1).
[67] Id, provision 195AI(2).
[68] Id, provision 195AL.
[69] Id, provision 195AZG.
[70] Id, provision 195AZ(1).
[71] Press release by the Minister for Communications and the Arts, 4 March 1997.
[72] Based on information provided by the Office of the Minister for Communications and the Arts during April 1997, pers. comm.
[73] Vaver, D, Authors Moral Rights and the Copyright Law Review Committees Report: W(h)ither Such Rights Now? [1988] MonashULawRw 11; (1988) 14 Monash U LR 284 at 296.
[74] For example, above n60 at 474.
[75] Holmes J in Bleistein v Donaldson Lithographing Company [1903] USSC 41; (1903) 188 US 239 at 251. Quoted by Tamberlin J, above n3, first instance, at 39,077.
[76] Id at 39,080-1.

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