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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000
The Parliament
of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
As read a third
time
Copyright
Amendment (Moral Rights) Bill 2000
No.
, 2000
A Bill for an Act to
amend the Copyright Act 1968, and for related purposes
ISBN: 0642 420688
Contents
Copyright Act
1968 3
This Bill originated in the House of Representatives; and,
having this day passed, is now ready for presentation to the Senate for its
concurrence.
I.C. HARRIS
Clerk of the House
of Representatives
House of Representatives
31 October
2000
A Bill for an Act to amend the Copyright Act 1968,
and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the Copyright Amendment (Moral Rights) Act
2000.
(1) This Act, other than Schedule 2, commences on the day on which it
receives the Royal Assent.
(2) If the Copyright Amendment (Digital Agenda) Act 2000 commences
on or before the day on which this Act receives the Royal Assent, Schedule 2 to
this Act commences immediately after Schedule 1 to this Act commences.
(3) If subsection (2) does not apply, Schedule 2 to this Act commences
when the Copyright Amendment (Digital Agenda) Act 2000
commences.
Subject to section 2, each Act that is specified in a Schedule to this
Act is amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect according to
its terms.
1 Part IX
Repeal the Part, substitute:
In this Part, unless the contrary intention appears:
act of false attribution has the meaning given by subsection
195AC(2).
artistic work means an artistic work in which copyright
subsists.
attributable act has the meaning given by subsection
193(2).
attributor has the meaning given by subsection
195AC(2).
author, in relation to a cinematograph film, means the maker
of the film.
cinematograph film means the complete and final version of a
cinematograph film in which copyright subsists.
deal means sell, let for hire, by way of trade offer or
expose for sale or hire, exhibit in public, or distribute and, in Division 3,
includes publish.
derogatory treatment has the relevant meaning given by
Division 4.
director, in relation to a cinematograph film, has a meaning
affected by section 191.
dramatic work means a dramatic work in which copyright
subsists.
infringing article means:
(a) an article that embodies a literary, dramatic, musical or artistic
work, or a cinematograph film, whether or not the article bears or contains
other material; or
(b) a reproduction of, or of an adaptation of, a literary, dramatic or
musical work; or
(c) a reproduction of an artistic work; or
(d) a copy of a cinematograph film;
being a work or film in respect of which a moral right of the author has
been infringed, other than by derogatory treatment not involving the material
distortion or alteration of, or the mutilation of, the work or film.
literary work means a literary work in which copyright
subsists.
maker, in relation to a cinematograph film, means the
director of the film, the producer of the film and the screenwriter of the
film.
moral right means:
(a) a right of attribution of authorship; or
(b) a right not to have authorship falsely attributed; or
(c) a right of integrity of authorship.
musical work means a musical work in which copyright
subsists.
name, in Division 3, includes a pseudonym, initials or a
monogram.
person representing the author, in relation to a possible
infringement of any of an author’s moral rights in respect of a work,
means a person who, under subsection 195AN(1) or (2), is entitled to exercise
and enforce the moral right concerned.
producer, in relation to a cinematograph film, has the
meaning given by section 191.
right of attribution of authorship has the meaning given by
Division 2.
right of integrity of authorship has the meaning given by
Division 4.
right not to have authorship falsely attributed has the
meaning given by Division 3.
screenwriter, in relation to a cinematograph film, means the
person who wrote the script or screenplay of the film, as that meaning is
affected by section 191.
transmit means:
(a) broadcast; or
(b) cause to be transmitted to subscribers to a diffusion
service.
work means a literary work, a dramatic work, a musical work,
an artistic work or a cinematograph film.
Only individuals have moral rights.
(1) A reference in this Part to the director of a cinematograph film in
the direction of which 2 or more individuals were involved is a reference to the
principal director of the film and does not include a reference to any
subsidiary director, whether described as an associate director, line director,
assistant director or in any other way.
(2) A reference in this Part to the producer of a cinematograph film is a
reference to:
(a) the individual who was the producer of the film; or
(b) if there were 2 or more individuals involved in the production of the
film—the individual who was the principal producer of the film;
and does not include a reference to any subsidiary producer, whether
described as an executive producer, associate producer, line producer, assistant
producer or in any other way.
(3) As only individuals have moral rights (see section 190), if the
producer of a cinematograph film was a body corporate, the only moral rights in
respect of the film are those of the director and screenwriter.
(4) A reference in this Part to the screenwriter of a cinematograph film
for which 2 or more individuals were involved in the writing of the script or
screenplay is a reference to the principal screenwriter.
Note: If there were 2 or more principal directors, 2 or more
individuals who were the principal producers, or 2 or more principal
screenwriters, of a cinematograph film, section 195AZJ, 195AZK or 195AZL
applies.
The moral rights of the author of a work are in addition to any other
rights in relation to the work that the author or anyone else has under this
Act.
(1) The author of a work has a right of attribution of authorship in
respect of the work.
(2) The author’s right is the right to be identified in accordance
with this Division as the author of the work if any of the acts (the
attributable acts) mentioned in section 194 are done in respect of
the work.
(1) If the work is a literary, dramatic or musical work, the
attributable acts are the following:
(a) to reproduce the work in a material form;
(b) to publish the work;
(c) to perform the work in public;
(d) to transmit the work;
(e) to make an adaptation of the work.
(2) If the work is an artistic work, the attributable acts
are the following:
(a) to reproduce the work in a material form;
(b) to publish the work;
(c) to exhibit the work to the public;
(d) to transmit the work.
(3) If the work is a cinematograph film, the attributable
acts are the following:
(a) to make a copy of the film;
(b) to exhibit the film in public;
(c) to transmit the film.
(1) Subject to subsection (2), the author of a work may be identified by
any reasonable form of identification.
(2) If:
(a) the author of a work has made known, either generally or to a person
who is required under this Part to identify the author, that the author wishes
to be identified in a particular way; and
(b) the identification of the author in that way is reasonable in the
circumstances;
the identification is to be made in that way.
An identification of the author of a work must be clear and reasonably
prominent.
When a literary, dramatic, musical or artistic work is reproduced in a
material form, an adaptation is made of a literary, dramatic or musical work, or
a copy of a cinematograph film is made, an identification of the author is taken
to be reasonably prominent if it is included on each reproduction of the work or
of the adaptation or on each copy of the film, as the case may be, in such a way
that a person acquiring the reproduction or copy will have notice of the
author’s identity.
(1) The author of a work has a right not to have authorship of the work
falsely attributed.
(2) The author’s right is the right not to have a person (the
attributor) do, in respect of the work, any of the acts (the
acts of false attribution) mentioned in the following provisions
of this Division.
If the work is a literary, dramatic or musical work, it is an act of
false attribution in relation to the author of the work:
(a) to insert or affix, or to authorise the inserting or affixing of, a
person’s name in or on the work, or in or on a reproduction of the work,
in such a way as:
(i) to imply falsely that the person is the author or an author of the
work; or
(ii) to imply falsely that the work is an adaptation of a work of the
person; or
(b) to deal with the work with a person’s name so inserted or
affixed, if the attributor knows that the person is not an author of the work or
that the work is not an adaptation of a work of the person, as the case may be;
or
(c) to deal with a reproduction of the work, being a reproduction in or on
which a person’s name has been so inserted or affixed, if the attributor
knows that the person is not an author of the work or that the work is not an
adaptation of a work of the person, as the case may be; or
(d) to perform in public or transmit the work as being a work of which a
person is the author or as being an adaptation of a work of a person, if the
attributor knows that the person is not an author of the work or that the work
is not an adaptation of the work of the person, as the case may be.
(1) This section applies if the work is an artistic work.
(2) It is an act of false attribution in relation to the author of the
work:
(a) to insert or affix a person’s name in or on the work, or a
reproduction of the work, or to use a person’s name in connection with the
work, or a reproduction of the work, in such a way as to imply falsely that the
person is an author of the work; or
(b) to deal with the work with a person’s name so inserted or
affixed, if the attributor knows that the person is not an author of the work;
or
(c) to deal with a reproduction of the work, being a reproduction in or on
which a person’s name has been so inserted or affixed, if the attributor
knows that the person is not an author of the work; or
(d) to transmit the work as being a work of which a person is the author,
if the attributor knows that the person is not an author of the work.
(1) This section applies if the work is a cinematograph film.
(2) It is an act of false attribution in relation to the director,
producer or screenwriter of the film:
(a) to insert or affix a person’s name on the film or a copy of the
film in such a way as to imply falsely that the person is the director, producer
or screenwriter, as the case may be, of the film; or
(b) to deal with the film or a copy of the film if a person’s name
has been so inserted or affixed on the film or a copy, as the case may be, and
the attributor knows that the person is not the director, producer or
screenwriter, as the case may be, of the film; or
(c) to transmit the film as being a film of which a person is the
director, producer or screenwriter, as the case may be, if the attributor knows
that the person is not the director, producer or screenwriter of the
film.
(1) If the work is a literary, dramatic, musical or artistic work that has
been altered by a person other than the author of the work, it is an act of
false attribution in relation to the author of the work:
(a) to deal with the work as so altered, as being the unaltered work of
the author; or
(b) to deal with a reproduction of the work as so altered, as being a
reproduction of the unaltered work of the author;
if, to the knowledge of the attributor, it is not the unaltered work or a
reproduction of the unaltered work, as the case may be, of the author.
(2) Subsection (1) does not apply if:
(a) the effect of the alteration is insubstantial; or
(b) the alteration was required by law to be made, or was otherwise
necessary to avoid a breach of any law.
(1) If the work is a cinematograph film that has been altered by a person
other than the maker of the film, it is an act of false attribution in relation
to the director, the producer and the screenwriter of the film to deal with a
copy of the film as so altered, as being a copy of the unaltered film, if, to
the knowledge of the attributor, the copy of the film is not a copy of the
unaltered film.
(2) Subsection (1)
does not apply if:
(a) the effect of the alteration is insubstantial; or
(b) the alteration was required by law to be made, or was otherwise
necessary to avoid a breach of any law.
(1) The author of a work has a right of integrity of authorship in respect
of the work.
(2) The author’s right is the right not to have the work subjected
to derogatory treatment.
In this Part:
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.
In this Part:
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.
In this Part:
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.
(1) An author’s right of integrity of authorship in respect of a
cinematograph film continues in force until the author dies.
(2) An author’s right of integrity of authorship in respect of a
work other than a cinematograph film continues in force until copyright ceases
to subsist in the work.
(3) An author’s moral rights (other than the right of integrity of
authorship) in respect of a work continue in force until copyright ceases to
subsist in the work.
(1) If the author of a work dies, the author’s moral rights (other
than the right of integrity of authorship in respect of a cinematograph film) in
respect of the work may be exercised and enforced by his or her legal personal
representative.
(2) If the affairs of the author of a work are lawfully administered by
another person (except under a law for the relief of bankrupt or
insolvent debtors), the author’s moral rights may be exercised and
enforced by the person administering his or her affairs.
(3) Subject to this section, a moral right in respect of a work is not
transmissible by assignment, by will, or by devolution by operation of
law.
(4) If a work has 2 or more authors, the authors may enter into a written
co-authorship agreement by which each of them agrees not to exercise his or her
right of integrity of authorship in respect of the work except jointly with the
other author or authors.
(5) A co-authorship agreement has effect according to its terms.
Subject to this Division, a person infringes an author’s right of
attribution of authorship in respect of a work if the person does, or authorises
the doing of, an attributable act in respect of the work without the
identification of the author in accordance with Division 2 as the author of the
work.
Subject to this Division, a person infringes an author’s right not
to have authorship of a work falsely attributed if the person does an act of
false attribution in respect of the work.
(1) This section has effect subject to this Division.
(2) A person infringes an author’s right of integrity of authorship
in respect of a work if the person subjects the work, or authorises the work to
be subjected, to derogatory treatment.
(3) If a literary, dramatic or musical work has been subjected to
derogatory treatment of a kind mentioned in paragraph (a) of the definition of
derogatory treatment in section 195AJ that infringes the
author’s right of integrity of authorship in respect of the work, a person
infringes the author’s right of integrity of authorship in respect of the
work if the person does any of the following in respect of the work as so
derogatorily treated:
(a) reproduces it in a material form;
(b) publishes it;
(c) performs it in public;
(d) transmits it;
(e) makes an adaptation of it.
(4) If an artistic work has been subjected to derogatory treatment of a
kind mentioned in paragraph (a) of the definition of derogatory
treatment in section 195AK that infringes the author’s right of
integrity of authorship in respect of the work, a person infringes the
author’s right of integrity of authorship in respect of the work if the
person does any of the following in respect of the work as so derogatorily
treated:
(a) reproduces it in a material form;
(b) publishes it;
(c) transmits it.
(5) If a cinematograph film has been subjected to derogatory treatment of
a kind mentioned in paragraph (a) of the definition of derogatory
treatment in section 195AL that infringes the author’s right of
integrity of authorship in respect of the film, a person infringes the
author’s right of integrity of authorship in respect of the film if the
person does any of the following in respect of the film as so derogatorily
treated:
(a) makes a copy of it;
(b) exhibits it;
(c) transmits it.
(1) A person who does, or authorises the doing of, an attributable act in
respect of a work does not, because the author of the work is not identified,
infringe the author’s right of attribution of authorship in respect of the
work if the person establishes that it was reasonable in all the circumstances
not to identify the author.
(2) The matters to be taken into account in determining for the purposes
of subsection (1) whether it was reasonable in particular circumstances not to
identify the author of a literary, dramatic, musical or artistic work include
the following:
(a) the nature of the work;
(b) the purpose for which the work is used;
(c) the manner in which the work is used;
(d) the context in which the work is used;
(e) any practice, in the industry in which the work is used, that is
relevant to the work or the use of the work;
(f) 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;
(g) any difficulty or expense that would have been incurred as a result of
identifying the author;
(h) whether the work was made in the course of the author’s
employment.
(3) The matters to be taken into account in determining for the purposes
of subsection (1) whether it was reasonable in particular circumstances not to
identify the maker of a cinematograph film include the following:
(a) the nature of the film;
(b) whether the primary purpose for which the film was made was for
exhibition at cinemas, for broadcasting by television or for some other
purpose;
(c) the purpose for which the film is used;
(d) the manner in which the film is used;
(e) the context in which the film is used;
(f) any practice, in the industry in which the film is used, that is
relevant to the film or the use of the film;
(g) any practice contained in a voluntary code of practice, in the
industry in which the film is used, that is relevant to the film or the use of
the film;
(h) any difficulty or expense that would have been incurred as a result of
identifying the maker;
(i) whether the film was made in the course of the employment of the
director, producer or screenwriter.
(1) A person does not, by subjecting a work, or authorising a work to be
subjected, to derogatory treatment, infringe the author’s right of
integrity of authorship in respect of the work if the person establishes that it
was reasonable in all the circumstances to subject the work to the
treatment.
(2) The matters to be taken into account in determining for the purposes
of subsection (1) whether it was reasonable in particular circumstances to
subject a literary, dramatic, musical or artistic work to derogatory treatment
include the following:
(a) the nature of the work;
(b) the purpose for which the work is used;
(c) the manner in which the work is used;
(d) the context in which the work is used;
(e) any practice, in the industry in which the work is used, that is
relevant to the work or the use of the work;
(f) 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;
(g) whether the work was made in the course of the author’s
employment;
(h) whether the treatment was required by law or was otherwise necessary
to avoid a breach of any law.
(3) The matters to be taken into account in determining for the purposes
of subsection (1) whether it was reasonable in particular circumstances to
subject a cinematograph film to derogatory treatment include the
following:
(a) the nature of the film;
(b) whether the primary purpose for which the film was made was for
exhibition at cinemas, for broadcasting by television or for some other
use;
(c) the purpose for which the film is used;
(d) the manner in which the film is used;
(e) the context in which the film is used;
(f) any practice, in the industry in which the film is used, that is
relevant to the film or the use of the film;
(g) any practice contained in a voluntary code of practice, in the
industry in which the film is used, that is relevant to the film or the use of
the film;
(h) whether the film was made in the course of the employment of the
director, producer or screenwriter who alleges that the treatment was
derogatory;
(i) whether the treatment was required by law or was otherwise necessary
to avoid a breach of any law.
(4) A person who does any act referred to in subsection 195AQ(3), (4) or
(5) in respect of a work that has been subjected to derogatory treatment of a
kind mentioned in that subsection does not, by doing that act, infringe the
author’s right of integrity of authorship in respect of the work if the
person establishes that it was reasonable in all the circumstances to do that
act.
(1) The destruction of a moveable artistic work is not an infringement of
the author’s right of integrity of authorship in respect of the work if
the person who destroyed the work gave the author, or a person representing the
author, a reasonable opportunity to remove the work from the place where it was
situated.
(2) 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 an artistic work that is affixed to or forms part of
the building if:
(a) the owner of the building, after making reasonable inquiries, cannot
discover the identity and location of the author or a person representing the
author; or
(b) if paragraph (a) does not apply—the owner, in accordance
with the regulations and before the change, relocation, demolition or
destruction is carried out:
(i) has given the author or a person representing the author a written
notice stating the owner’s intention to carry out the change, relocation,
demolition or destruction and that the person to whom the notice was given may
ask for access to the work within 3 weeks from the date of the notice, and
containing such other information and particulars as are prescribed;
and
(ii) if the person to whom the notice was given asks for access to the
work before the end of the period of 3 weeks mentioned in
subparagraph (i)—has given that person a further period of 3 weeks
within which to have such access.
(3) 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
if:
(a) the owner of the building, after making reasonable inquiries, cannot
discover the identity and location of the author or a person representing the
author, or of any of the authors or persons representing the authors, as the
case may be; or
(b) if paragraph (a) does not apply—the owner, in accordance
with the regulations and before the change, relocation, demolition or
destruction is carried out:
(i) has given the author or a person representing the author, or the
authors or the persons representing the authors, whose identity and location the
owner knows, a written notice stating the owner’s intention to carry out
the change, relocation, demolition or destruction, and that the person to whom
the notice was given may ask for access to the building within 3 weeks from the
date of the notice, and containing such other information and particulars as are
prescribed; and
(ii) if
a person to whom such a notice was given asks for access to the building within
the period of 3 weeks mentioned in subparagraph (i)—has given that
person a further period of 3 weeks within which to have such access.
(4) Subsections (2) and (3) do not limit the operation of
section 195AG.
(4A) The removal or relocation by a person (the remover) 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, is not an infringement of
the author’s right of integrity of authorship in respect of the work if
the remover:
(a) after making reasonable inquiries, cannot discover the identity and
location of the author or a person representing the author; or
(b) if paragraph (a) does not apply—in accordance with the
regulations and before the removal or relocation is carried out:
(i) has given the author or a person representing the author a written
notice stating the remover’s intention to carry out the removal or
relocation and that the person to whom the notice was given may, within 3 weeks
from the date of the notice, seek to consult with the remover about the removal
or relocation or about having access to the work, or both, and containing such
other information and particulars as are prescribed; and
(ii) if the person to whom the notice was given notifies the remover
within the period of 3 weeks mentioned in subparagraph (i) that the person
wishes to consult with the remover about the removal or relocation or about
having access to the work, or both—has given the person a reasonable
opportunity within a further period of 3 weeks so to consult or to have such
access.
(5) Anything done in good faith to restore or preserve a work is not, by
that act alone, an infringement of the author’s right of integrity of
authorship in respect of the work.
(1) An author’s moral right in respect of a work is infringed by a
person who imports an article into Australia for the purpose of dealing with the
article if the importer knew, or ought reasonably to have known, that, if the
article had been made in Australia, it would have been an infringing
article.
(2) In subsection (1):
dealing with does not include distributing except where the
proposed distribution is for the purposes of sale.
(1) An author’s moral right in respect of a work is infringed by a
person who, in Australia, deals with an article if the person knew, or ought
reasonably to have known, that the article was an infringing article or, in
respect of an imported article, would, if it had been made in Australia, have
been an infringing article.
deals with does not include:
(a) distributes, except where the distribution is for the purposes of
sale; or
(b) deals with by means of a dealing covered by paragraph 195AD(b),
195AD(c), 195AE(2)(b), 195AE(2)(c) or 195AF(2)(b) or subsection 195AG(1) or
195AH(1); or
(c) deals with by means of an exhibition that is an attributable act to
which section 195AO applies or an exhibition to which subsection 195AQ(5)
applies.
(1) It is not an infringement of a moral right of an author in respect of
a work to do, or omit to do, something if the act or omission is within the
scope of a written consent given by the author or a person representing the
author.
(2) A consent may be given in relation to all or any acts or omissions
occurring before or after the consent is given.
(3) A consent may be given in relation to:
(a) a specified work or specified works existing when the consent is
given; or
(b) a work or works of a particular description:
(i) the making of which has not begun; or
(ii) that is or are in the course of being made.
(4) A consent may be given by an employee for the benefit of his or her
employer in relation to all works made or to be made by the employee in the
course of his or her employment.
(5) A consent given for the benefit of the owner or prospective owner of
copyright in the work or works to which it relates is presumed, unless the
contrary intention appears in the consent instrument, to extend to his or her
licensees and successors in title, and to any persons who are authorised by the
owner or prospective owner, or by such a licensee or successor in title, to do
acts comprised in the copyright.
(6) Subsections (2) to (5), inclusive, do not limit the operation of
subsection (1).
It is not an infringement of an author’s moral right in respect of
a work to do, or omit to do, something outside Australia.
(1) In this Division:
action means a proceeding of a civil nature between parties,
and includes a counterclaim.
(2) In the application of this Division in relation to a counterclaim,
references to the defendant are taken to be references to the
plaintiff.
If a person infringes any of the moral rights of an author in respect of
a work, the infringement is not an offence but the author or the author’s
legal personal representative may bring an action in respect of the
infringement, subject to any co-authorship agreement in force under section
195AN to which the author is a party.
(1) Subject to section 203, the relief that a court may grant in an action
for an infringement of any of an author’s moral rights in respect of a
work includes any one or more of the following:
(a) an injunction (subject to any terms that the court thinks fit);
(b) damages for loss resulting from the infringement;
(c) a declaration that a moral right of the author has been
infringed;
(d) an order that the defendant make a public apology for the
infringement;
(e) an order that any false attribution of authorship, or derogatory
treatment, of the work be removed or reversed.
(2) In exercising its discretion as to the appropriate relief to be
granted, the court may take into account any of the following:
(a) whether the defendant was aware, or ought reasonably to have been
aware, of the author’s moral rights;
(b) the effect on the author’s honour or reputation resulting from
any damage to the work;
(c) the number, and categories, of people who have seen or heard the
work;
(d) anything done by the defendant to mitigate the effects of the
infringement;
(e) if the moral right that was infringed was a right of attribution of
authorship—any cost or difficulty that would have been associated with
identifying the author;
(f) any cost or difficulty in removing or reversing any false attribution
of authorship, or derogatory treatment, of the work.
(3) In deciding whether or not to grant an injunction under subsection
(1), the court must consider whether the parties have made any attempt to
negotiate a settlement of the action and whether it should adjourn the hearing
or further hearing of the action for the purpose of giving the parties an
appropriate opportunity to negotiate a settlement, whether through a process of
mediation or otherwise.
(4) If:
(a) the work is a cinematograph film; and
(b) the action is brought by a person who is a screenwriter of the film;
and
(c) the relief granted in the action consists of or includes damages;
and
(d) the person has already been granted relief by way of damages in an
action for an infringement of his or her moral rights as an author of the
dramatic work constituted by the script or screenplay for the film;
the amount of any damages that, apart from this subsection, would be
awarded to the person in the action referred to in paragraph (b) is to be
reduced by the amount of the damages awarded to the person in the action
referred to in paragraph (d).
(5) If:
(a) the work is a dramatic work constituted by the screenplay or script
for a cinematograph film; and
(b) the action is brought by a person who is an author of the screenplay
or script; and
(c) the relief granted in the action consists of or includes damages;
and
(d) the person has already been granted relief by way of damages in an
action for an infringement of his or her moral rights as a screenwriter of the
film;
the amount of any damages that, apart from this subsection, would be
awarded to the person in the action referred to in paragraph (b) is to be
reduced by the amount of the damages awarded to the person in the action
referred to in paragraph (d).
(6) If, in respect of an act done after the death of an author of a work,
damages are recovered under this section by the legal personal representative of
the author, those damages devolve as if they formed part of the author’s
estate and as if the right of action in respect of the doing of the act had
subsisted, and had been vested in the author, immediately before his or her
death.
Note: Subsection (6) does not apply in relation to the right
of integrity of authorship in respect of a cinematograph film, which ends on the
author’s death. See subsection 195AM(1).
(1) Subject to this section, this Part does not affect any right of action
or other remedy, whether civil or criminal, in proceedings brought otherwise
than under this Part.
(2) Any damages recovered in proceedings brought under this Part are to be
taken into account in assessing damages in proceedings brought otherwise than
under this Part and arising out of the same operation or transaction.
(3) Any damages recovered in proceedings brought otherwise than under this
Part are to be taken into account in proceedings brought under this Part and
arising out of the same operation or transaction.
(1) The jurisdiction of the Supreme Court of a State or Territory in a
matter arising under this Part is to be exercised by a single Judge of the
Court.
(2) Subject to subsection (3), a decision of a court of a State or
Territory (however constituted) under this Part is final.
(3) An appeal lies from a decision of a court of a State or Territory
under this Part:
(a) to the Federal Court of Australia; or
(b) by special leave of the High Court, to the High Court.
(4) The Federal Court of Australia has jurisdiction with respect to
matters arising under this Part.
In an action brought under this Part for an infringement of a moral right
in respect of a work, copyright is presumed to subsist in the work if the
defendant does not put in issue the question whether copyright subsists in the
work.
In an action brought under this Part for an infringement of a moral right
in respect of a work, if copyright is presumed or proved to have subsisted in
the work when the infringement is alleged to have occurred, the moral right is
presumed to have subsisted in the work at that time.
(1) Section 127 applies in respect of an action brought under this
Part.
(2) If a name purporting to be the name of the director, producer or
screenwriter of a cinematograph film appeared on copies of the film that were
issued when the film was made, then, in an action brought under this Part, the
person whose name so appeared is, if it was his or her true name or a name by
which he or she was commonly known, presumed, unless the contrary is
established, to be the director, producer or screenwriter, as the case may be,
of the film.
Sections 128 and 129 apply in respect of an action brought under this
Part.
Moral rights in respect of a work apply in relation to a whole or a
substantial part of the work.
(1) This section applies to a literary, dramatic, musical or artistic work
that is a work of joint authorship.
(2) The right of attribution of authorship in respect of the work is a
right of each joint author to be identified as a joint author.
(3) An act of false attribution in respect of the work infringes the right
of each joint author not to have authorship of the work falsely
attributed.
(4) The right of integrity of authorship in respect of the work is a right
of each joint author.
(5) The consent of one joint author to any act or omission affecting his
or her moral rights in respect of the work does not affect the moral rights of
the other joint author or other joint authors in respect of the work.
(1) This section applies to a cinematograph film that has more than one
principal director.
(2) The director’s right of attribution of authorship in respect of
the film is a right of each director to be identified as a director.
(3) An act of false attribution in respect of the direction of the film
infringes the right of each director not to have the direction of the film
falsely attributed.
(4) The director’s right of integrity of authorship in respect of
the film is a right of each director.
(5) The consent of one director to any act or omission affecting his or
her moral rights in respect of the film does not affect the moral rights of the
other director or other directors in respect of the film.
(1) This section applies to a cinematograph film of which more than one
individual is the principal producer.
(2) The producer’s right of attribution of authorship in respect of
the film is a right of each producer to be identified as a producer.
(3) An act of false attribution in respect of the production of the film
infringes the right of each producer not to have the production of the film
falsely attributed.
(4) The producer’s right of integrity of authorship in respect of
the film is a right of each producer.
(5) The consent of one producer to any act or omission affecting his or
her moral rights in respect of the film does not affect the moral rights of the
other producer or other producers in respect of the film.
(1) This section applies to a cinematograph film of which there is more
than one principal screenwriter.
(2) The screenwriter’s right of attribution of authorship in respect
of the film is a right of each screenwriter to be identified as a
screenwriter.
(3) An act of false attribution of authorship in respect of the script or
screenplay of the film infringes the right of each screenwriter not to have the
authorship of the script or screenplay of the film falsely attributed.
(4) The screenwriter’s right of integrity of authorship in respect
of the film is a right of each screenwriter.
(5) The consent of one screenwriter to any act or omission affecting his
or her moral rights in respect of the film does not affect the moral rights of
the other screenwriter or other screenwriters in respect of the film.
(1) The right of attribution of authorship in respect of:
(a) a cinematograph film; or
(b) a literary, dramatic, musical or artistic work as included in a
cinematograph film;
subsists only if the cinematograph film is made after the commencement of
this Part.
(2) The right of attribution of authorship in respect of a literary,
dramatic, musical or artistic work other than such a work as included in a
cinematograph film subsists in respect of a work made before or after the
commencement of this Part but this Part only applies in relation to attributable
acts done after that commencement.
Note: Subsection 22(1) explains when a literary, dramatic,
musical or artistic work is taken to be made and paragraph 22(4)(a) explains
when a cinematograph film is taken to be made.
(1) The right not to have authorship falsely attributed subsists in
respect of a work made before or after the commencement of this Part but this
Part only applies in relation to acts of false attribution done after that
commencement.
(2) Paragraph 195AD(b) or (c), 195AE(2)(b) or (c) or 195AF(2)(b) applies
to an act of false attribution done after the commencement of this Part even if
the name concerned was inserted or affixed before that commencement.
Note: Subsection 22(1) explains when a literary, dramatic,
musical or artistic work is taken to be made and paragraph 22(4)(a) explains
when a cinematograph film is taken to be made.
(1) The right of integrity of authorship in respect of:
(a) a cinematograph film; or
(b) a literary, dramatic, musical or artistic work as included in a
cinematograph film;
subsists only if the cinematograph film is made after the commencement of
this Part.
(2) Subject to subsection (3), the right of integrity of authorship
in respect of a literary, dramatic, musical or artistic work other than such a
work as included in a cinematograph film:
(a) subsists in respect of a work made before the commencement of this
Part only if the author of the work is living at that commencement;
and
(b) subsists in respect of a work that is made after that
commencement.
(3) This Part applies in relation to an infringement of a right of
integrity of authorship that subsists in respect of a work under
paragraph (2)(a) only if the infringement occurs after the commencement of
this Part. However, an act referred to in paragraph 195AQ(3)(a), (b), (c), (d)
or (e) or (4)(a), (b) or (c) is not an infringement if the relevant derogatory
treatment occurred before that commencement.
Note: Subsection 22(1) explains when a literary, dramatic,
musical or artistic work is taken to be made and paragraph 22(4)(a) explains
when a cinematograph film is taken to be made.
2 Section 238
Repeal the section.
3 Application
Part IX of the Copyright Act 1968 as in force immediately before the
commencement of this Schedule continues to apply, subject to section 238 of that
Act as in force immediately before that commencement, in relation to acts done
in respect of a literary, dramatic, musical or artistic work before that
commencement.
1 Section 189 (definition of
transmit)
Repeal the definition.
2 Paragraph 194(1)(d)
Repeal the paragraph, substitute:
(d) to communicate the work to the public;
3 Paragraph 194(2)(d)
Repeal the paragraph, substitute:
(d) to communicate the work to the public.
4 Paragraph 194(3)(c)
Repeal the paragraph, substitute:
(c) to communicate the film to the public.
5 Paragraph 195AD(d)
Omit “in public or transmit the work”, substitute “the
work in public, or communicate it to the public,”.
6 Paragraph 195AE(2)(d)
Omit “transmit the work”, substitute “communicate the
work to the public”.
7 Paragraph 195AF(2)(c)
Omit “transmit the film”, substitute “communicate the
film to the public”.
8 Paragraph 195AQ(3)(d)
Repeal the paragraph, substitute:
(d) communicates it to the public;
9 Paragraphs 195AQ(4)(c) and
(5)(c)
Repeal the paragraphs, substitute:
(c) communicates it to the
public.
(238/99)