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CATE BANKS[*]
In December 2000, after more than 70 years of discussion and debate both nationally and internationally, the Copyright Amendment (Moral Rights) Act 2000 (Cth) came into force introducing a moral rights regime into Australia for the first time. This article traces the trajectory of moral rights in Australian law from 1928 to 2000. This historical period is divided into two parts, reflecting two distinct periods in the chronology. The first part, representing the first era between 1928-1988, discusses the issues central to whether or not Australia should introduce moral rights and debates about the appropriateness of the introduction of such legislation. The second part, in the period between 1988 to 2000 with a discrete shift in focus to the question of what moral rights should look like, came the emergence of a new set of debates about the practical implications of moral rights legislation.
The introduction of the moral rights regime in 2000 heralded a new era in Australian intellectual property law, by legally recognising the personal right of Australian creators to protect their relationship with their work. As with most significant changes in law, this new regime received considerable attention and scrutiny, especially concerning the level of protection that this new Act afforded Indigenous creators.
The term ‘moral rights’ is a transliteration from French droit moral or droits moraux.[1] In French, these rights are the personal or non-economic rights of creators. There is no accurate English equivalent term that captures the essence of the French droit moral. Moral rights attach to the creator of a work, primarily because of the bond between the creator and his or her work. They exist independently of the economic rights of copyright and are described as ‘an emanation or manifestation of his or her (the artist’s) personality or his or her spiritual child’.[2] As Roeder said;
... when an artist creates, be he an author; a painter, a sculptor, an architect or a musician, he does more than bring into the world a unique object having only exploitative possibilities, he projects into the world part of his personality and subjects it to the ravages of public use. There are possibilities of injury to the creator other than mere economic ones.[3]
Essentially what has evolved in French law are rights which protect the interests of an artist or an author.[4] In civil jurisdictions, particularly France, there are four major moral rights: the right of disclosure, the right of withdrawal, the right of attribution, and the right of integrity.[5] The acknowledgment and subsequent protection of these rights has differed between countries governed by civil law and those by common law.[6] Where civil law countries have engaged moral rights as a matter of course in legal history, the progression in the common law countries particularly Australia, to recognise moral rights, has been less straightforward.
This article is divided into two parts. Part One traces the history of moral rights discourse in Australian jurisprudence from 1928 to 2000, a history that is characterised by two distinct periods. The first period (1928-1989) revolved around the question of whether or not Australia should introduce moral rights. The second period (1990-2000) saw a shift in focus to the question of what form moral rights should take, as a new set of debates about the practical implications of moral rights legislation emerged. Part Two of this article will reveal within those two periods, the emergence of three dominant themes, foreignness, international obligation and economic impact. Exploration of these three themes offers a narrative structure through which to understand how a legal concept evolved, devolved, and dissolved; how moral rights, in the Australian context, became lost in translation.
II 1928-1989 – The First Era of Debates
Moral rights entered into Australian jurisprudence with the signing of the Berne Convention for the Protection of Artistic and Literary Property in Rome in 1928.[7] Not originally on the agenda for the 1928 Conference,[8] the subject of droit moral was raised at the beginning of the proceedings by the French government in the form of a resolution,[9] and then subsequently tabled by the French, Italian, Polish delegates and the International Institute of Intellectual Property Co-operation.[10] Despite the assertion by the common law countries that moral rights came out of the blue,[11] discussion about droit moral had taken place in intellectual property circles prior to the convention. Various expert bodies including Association Littéraire et Artistique Internationale (ALAI) and the International Institute for Intellectual Co-operation,[12] had actively and publicly considered the need for moral rights protection prior to the convention,[13 ]and several countries including Romania, Italy, Poland and Czechoslovakia had adopted laws reflecting the tenet of moral rights.[14 ]The French proposal was supported by several countries including Italy, Poland, Belgium, Czechoslovakia and Romania.
Ces dispositions semblant comprendre les droit suivants:le droit de la paternitè de l’auteur, c’est- à-dire droit primordial, absolument inaliènable droit pour l’auteur de disposer de son œuvre à tous égards, notamment de décider si on droit la rendre public ou non et de quelle façon sa publication et sa diffusion doivent être effectuées. Ce droit est aussi en principe inaliénable, mais si l’auteur n’a pris aucune disposition de son droit
As the initial programme did not contain any proposals for the introduction of moral rights, the common law countries felt they had been caught by surprise.[15 ]The civil countries had, to some extent, predicted common law resistance and had publicly wondered whether a different choice of phraseology would have assisted acceptance of droit moral because it was not a concept easily understood.
Et d’abord, une difficulté de terminologie est à trancher. Au moment où l’on se résout à introduire expressément dans la Convention de Berne la notion de ce qu’on convenu d’appeler le «droit moral» faut-il conserver cette dénomination sous laquelle s’est, pour ainsi dire, vulgarisée dans la dóctrine et la juriprudence, puis en législation, cette conception relativement moderne? Certes, elle prête à la critique : M P Masse en France, M Stolfi en Italie, M Destrée, d’autres autuers encore, ont montré combien elle était imparfaite. Mais elle présente au moins l’avantage d’être uselle, d’être connue. Les expressions qu’on a proposé de substituer à celles de droit moral sont-elles meilleures? M Stolfi a proposé: «droits personnels». Mais ces termes différencient bein insuffisamment le droit non pécuniaire dont il siagit ici, du droit pécuniaire ou d’exploitation de l’œvre. M Destrée, dans l’intitulé du project de texte qu’il a préparé en vue de la Conférence de Rome, qualifie ce droit non pécuniaire de «droit au respect». L’expression est nette et imagé’, assurément, mais elle n’énvite pas le péril auquel on s’expose trop aisément, quand on pénètre dans ce domaine si récemment exploré dont les limites sont encore mal connues» elle n’embarrasse pas intègralement tous les cas où peut s’exercer le droit moral, mais seulement, quelques-uns d’entre eux, particulièrement notables.(voir plus bas, V, 8)
Faute de mieux, et parce qu’elle est «la moins mauvaise», comme dit M.Jeane Rault(1), il faut consentir à insérer dans les textes internationaux l’expression de «droit moral», qui, du language des magistrats et professeurs français(2), est passée dans le vocabulaire juridique des autres pays(3), et même dans quelques textes législatifs(4).[16]
However, tensions ran deeper than terminological differences; common law countries believed moral rights to be antithetical to the well-established principles of common law. This divided the delegates into two camps, and challenged the common law countries to accept a concept which they believed to be foreign. This tension was described by Sir William Harrison Moore, the Australian delegate, on his return address to Parliament:
There was no subject in the conference which brought out so clearly the differences between Continental, particularly Latin legal thought and that of the common law countries. Even where the particular interests to be protected were specified, the enumeration was in so abstract a form as to present us with difficulties in seeing what legislation would be necessary to satisfy the obligations ... the suggested articles were at any rate clearly outside the conception of copyright. It fell to me to state our difficulties in accepting any of the numerous proposals on the subject. It was evident at once that the announcement caused great disappointment. The Italian delegation circulated amongst the British delegations a reasoned statement aiming at meeting our objections or showing that our fears were ill-founded.[17][emphasis added]
Reticence about the proposal meant that the passing of the article would require some negotiation. Common law delegate Mr Raymond, from New Zealand, described the mood of the moment:
The difference between the Latin and Anglo-Saxon mentality was nowhere more evident than in the discussion on this subject...there was evidently some acute need for it in some of the Continental countries, judging by the interest and enthusiasm it evoked. But it was coldly received by the British countries and to them the Italians addressed a special appeal, particularly pointing out that countries within the common law already afforded by various principles of their law the protection which was now sought. The British countries were anxious to help their neighbours, and ultimately a small sub-committee was formed ...[18] [emphasis added]
The element of surprise expressed by Mr Raymond seems to originate from the actual content of the proposal rather than the process, although the general impression was that the common law delegates were somewhat chagrin about the lack of consultation surrounding the intention to introduce the proposal.[19] As the common law delegates were quite fixed in their opinions, it was obvious that further debate was necessary if any in-roads were to be made. Therefore the proposal was referred to a special sub-committee which included the common law countries for further consideration.[20 ]
The fear of the foreignness of moral rights evoked such concern within common law countries, that for any progress to be made on their introduction of moral rights, it was necessary for the continental countries to make significant compromises on the definition and scope of droit moral.[21]
En vue d’aboutir à des possibilités pratiques susceptibles de rallier toutes Les Délégations, la Délégations a fait un effort pour rechercher la bonne méthode grâce à làquelle on pourra rapporcher le droit anglo-saxon du droit continental, law rédaction traduissant certains aspects du droit moral de l’auteur qui pourra recevoir l’approbation de la Délégation britannique donte droit intérieur révèle ds exigences particulières en ce qui concerne cette haute et solennelle affirmation du droit de l’auteur’.[22]
The deliberations of the sub-committee focused mainly upon the Italian proposals:
Independently of the protection of patrimonial rights regulated by the following articles, and notwithstanding any alienation thereof, the author has at all times:
(1) the right to claim paternity of the work;
(2) the right to decide if the work should appear;
(3) the right to oppose any modification of the work which would be prejudicial to is moral interests.
After the death of the author these rights will be exercised by the persons or organs designated by the legislation of the country of origin of the work. The means of recourse for safeguarding these rights will be regulated by the legislation of the country where protection is claimed.[23]
It was largely the negotiation skills of Sir William Harrison Moore that facilitated the relatively smooth passage of droit moral into the Convention in a form that was acceptable to the common law countries.[24] Once formalities were over, the final draft of Article 6 bis, a modified version of the original Italian submission, appeared as follows:
1 while the article does not limit the power to transfer the rights granted by the Article if the author makes a contract containing express conditions to this effect, those rights are to remain with the author in spite of any transfers of his copyright (for example in Great Britain the rights which he enjoyed under the copyright law);
2 the rights continue only during the lifetime of the author;
3 the right to oppose publication of the work is omitted;
4 mutilations of the work must be such as to prejudice the author’s honour and reputation.[25]
The common law delegates contested the introduction of moral rights on the grounds that they were antithetical to well-established principles in English law such as contract and equity,[26] and that aspects of the proposed article were not synchronous with common law doctrine. Nevertheless, there were no obvious hard feelings about the common law reaction to the introduction of moral rights into the Convention. The civil countries had worked hard to encourage the common law countries to agree to the inclusion of moral rights, and the compromise made by the common law countries was obviously appreciated. In the final summation, the French delegate expressed their gratitude to the common law countries for embracing the spirit of moral rights.
La délégation française éprouve également une profonde gratitude envers la Grande-Bretagne et les Dominions qui, faisant abstraction des grandes difficultés découlant de leurs propres institutions juridiques, ont bien voulu accepter un texte qui, sur le terrain pratique, et laissant de ĉote les controverses doctrinales semble pouvoir aboutir à un accord unanime. Ce texte ne tranche certes pas tous le problème, mais il constitute un première étape décisive vers la réalisation des idéals communs à toutes les Nations et à toutes les races ici représentées.[27]
While there was still an obvious reticence about moral rights as a concept, the rejection of droit moral based on an anxiety that had they were ‘hardly capable of translation’,[28 ]was reassessed and moral rights were transformed into articulated indicia. For example Sir William Harrison Moore said to the Australian Parliament:
[Moral rights] ... are deemed to be inherent in the person of the author in the sense that he cannot divest himself of them, either by parting with (say) a picture he has painted, or by disposing of his copyright or by any other contract..[29]
During the negotiations, Sir William Harrison Moore became more responsive to the notion of moral rights as an addition to Australian law. He believed that the new moral rights were more akin to common law and equity, and therefore did not require legislative reform under the copyright power of the federal government:[30]
The right to claim authorship and the right of protection against any use of the work which impairs the honour and reputation of the author are already probably the subject of adequate protection in English and Australian law, though under the rules of the common law and equity, and therefore in Australia under the laws of the States, rather than as matter of copyright that these interests are protected.[31]
In his address to Parliament, Sir William provided some examples of how moral rights may operate:
1 To prohibit the use of his work for advertisement or its mutilation for any purpose;
2 To have his [sic] authorship associated in all dealings with the work or at least to prohibit the imputation of authorship associated in all dealings with the work or at least to prohibit the imputation of authorship to other people;
3 To share in the enhanced value of (say) a picture.[32]
In 1931, Canada became the first common law country to introduce specific moral rights legislation, and the legislation remained true to article 6 bis. However, the legislation came under the scrutiny of some lawyers and was accused of being ‘conceived in vagueness, poorly drafted, sententious in utterance, and useless in application’.[33] As Dworkin discussed,
[Canada was] ‘a bridge between the approach to moral rights in common law and civil law systems. Although primarily a common law country, its laws have been influenced by the civil principles of Quebec. The most senior judges in Canada are drawn from both jurisdictions; their backgrounds is sometimes reflected in their legal analyses, and they have been prepared to look to civil law jurisdictions when considering moral rights.[34]
Although obviously relieved that Article 6 bis had been introduced at the Rome conference, the ensuing years saw continued debate about how the moral rights in Article 6 bis could be modified, particularly in relation to content and extent:[35]
The major point of difference concerned the changes and alterations that might be made to works after the author has licensed or assigned his rights ... of particular importance to the burgeoning cinematographic industry which depended largely upon the adaptation of works to the screen. Sharply conflicting views on these matters were to be found in the debates ... On the one side, the Italian group opposed any changes to the existing Article 6 bis under which changes might be made that were not prejudicial to the author’s honour or reputation. On the other, a special sub-committee...strongly influenced by the French views, took the attitude that authors should be able to control any modifications that were prejudicial to their ‘moral interest’ ... nevertheless it was argued that they should remain within the scope of the author’s moral rights insofar as they impinged upon the work as an expression of his creative self...the problem still remained of maintaining some sensible balance between the spiritual or moral interest of the authors and the legitimate commercial expectations of licensees and assignees ...[36]
In 1935, Australia acceded to the Rome Act, but no legislative changes were made to incorporate moral rights, based on the belief that there was sufficient common law protection.[37]
In 1948, at the next Revision Conference in Brussels, the common law delegates resisted proposals to extend both moral rights protection after the author’s death, and the right of integrity to works in the public domain.[38] The tenet of the common law argument, predominantly expressed by the British delegate, was that as moral rights were foreign to common law, proposals to extend the right beyond the life of the author were unacceptable – and were therefore rejected.[39] The matter was then sent to a sub-committee consisting of mostly civil law countries, including Italy (Chair), France, and the United Kingdom, who adopted ‘To deviate as little as possible from the text of the Convention in force ... to permit national legislation to develop the protection accorded to the interests of authors in the domain of moral rights.’[40] While common law resistance was obvious, and the difference and division between the civil law countries and the common law countries was evident, significant changes were achieved at Brussels, and the nature of these debates would continue to shape the way these issues played out in the international arena.
At the same time as the Brussels revisions, constitutional changes were occurring in Australian law that were relevant to Australia’s perceived ties to Britain. The last official remnant of an imperial barrier was removed in 1931 after The State of Westminster (UK) was passed, leaving Australian Parliament at liberty to make laws without imperial restrictions, which ‘recognised the dominion status of Australia, that it was an independent legal community within the British empire’,[41] and ‘authorised the Commonwealth Parliament to release itself from the bind of paramount force legislation’.[42] However, as Kercher points out, ‘Australia was in no hurry to seize its independence after 1931’[43] as it only passed the Statute of Westminster Adoption Act (Cth) in 1942.
The Gregory Report was handed down to the United Kingdom Parliament in 1952 by the Copyright Committee of the British Board of Trade as preparatory research for the Copyright Act 1956 (UK).[44] While it provided a comprehensive discussion of copyright issues in the United Kingdom, it dealt only superficially with moral rights, demonstrating a continuing belief that moral rights were foreign.[45] The report concluded that common law and existing legislation provided enough protection,[46] and the Gregory Committee suggested that concerns about moral rights by artists and authors could be dealt with under contract law.[47]
The Committee acknowledged that as Britain was a signatory to the Berne Convention, there may be some question about an international obligation to provide further protection for moral rights interests. This possibility was dismissed on the basis that there had been no registered complaints about Britain’s failure to enact legislation incorporating Article 6 bis. In qualifying the decision not to enact further legislation, the Gregory Committee said that it believed moral rights were such a vague and obscure concept that even if there was government will to protect the rights, it would be impossible to draft legislation which would capture the alleged problems of breaches of moral rights:[48] ‘In general, the common law of this country provides adequate remedies, and in addition there are certain statutory remedies to meet particular and defined cases.’[49] Consequently, the status quo under the Copyright Act 1956 (UK) continued.[50]
There is no available archival material to indicate that moral rights were back on the agenda for debate in Australia until around 1959. It was at this time, 30 years after Rome, that the Copyright Law Review Committee known as the Spicer Committee was appointed,
To examine the copyright law of Australia, and to advise which of the amendments recently made to the law of copyright in the United Kingdom, should be incorporated into Australian copyright law and what other alterations or additions, if any, should be made to the copyright law of Australia.[51]
Once appointed, the Spicer Committee invited people and organisations to make submissions. The Committee also invited persons and organisations to appear before the Committee to discuss any issues of concern,[52] and was required to meet on approximately 37 occasions, very few of which involved moral rights at all.
Given that there were only a couple of recorded submissions to the Spicer Committee on the issue of moral rights, the issue was only given cursory attention.[53] Submissions by the Law Council of Australia were in favour of ‘maintain[ing] uniformity with the United Kingdom,’ creating laws which suited Australia, ‘consistently having provisions suitable to our own conditions’.[54] Other submissions raised the issue of introducing a more comprehensive range of moral rights than those outlined in the Berne Convention, including the right of divulgation and the right of withdrawal. For example, a Mr Orban, an individual with no stated affiliation, suggested the following for consideration:
1 The purchase/or [sic] owner by any means should not have the right to exhibit publicly any work of art without the consent of the artist;
2 The owner of a painting or sculpture should not have right to alter, deface, mutilate or destroy the work. This should apply to murals with definite artistic value;
3 The decision as to a work’s artistic integrity could be made in the same manner as the determination is now made as to whether a building should be interpreted as a national monument.[55]
The submission made by the Office of Education supported this type of approach:
The possibility of provision being made for the artist always to retain ‘moral right’ in his works so that owners and buyers (with the exception of public exhibition galleries) could not exhibit works publicly without the consent of the artist where this is obtainable..[56 ]
However, the Committee rejected all the submissions of this type ‘for the reasons set out in the Gregory Report,’ and because ‘the matter had little to do with copyright’.[57] Despite Australia being free to enact its own laws relating to copyright, it was very clear that common law unity, conformity and deference to the UK was paramount when considering this issue: ‘Australia should adopt the main lines of the United Kingdom Act unless sufficient reason was shown for deviating from it.’[58]
The Spicer Committee’s deliberations were especially guided by the experience of Great Britain:
there are great advantages in being able to rely upon legal provisions in the countries where copyright is claimed which are substantially the same in their operation. Furthermore, the decisions not only of our own Courts but also those in Great Britain are a real guide in the administration and interpretation of our law, so are textbooks and other publications which on such a subject as this appears in the United Kingdom more frequently than in Australia.[59 ]
Following the British lead in the Gregory Report, and endorsement by the Attorney-General,[60] the Copyright Law Review Committee reported the following on the issue of moral rights:
487 We have received representations regarding what is called on the Continent ‘the moral right’ of the author. One of the matters involved in this question is the false attribution of authorship which we have dealt with earlier in this report.
488 It has been submitted to us that the law should provide that no artistic work should be altered or publicly exhibited without the consent of the artist. Our recommendation regarding false attribution of authorship goes some way towards meeting the submission regarding alteration of works.
489 We do not consider that any further protection for the artist should be provided for, even if the Commonwealth had the necessary constitutional power. The artist is free to protect himself by inserting terms in his contract of sale. Also, as the matters raised primarily concern the reputation of the artist, we consider that the action for defamation is more appropriate than a statutory cause of action which might be enacted by the Copyright Act.
490 In weighing up the interests of the artist and the owner of a work of art so far as public exhibition of the work is concerned, we are unable to recommend that the law should come down in favour of the artist. One of the reasons given for conferring on an artist the right to restrain public exhibition of his work is that the work may no longer represent the present day style and quality of the artist. We think that an artist could easily ensure against his reputation suffering in this respect by putting on the work the date it was made.[61]
However, the decision by the Copyright Committee received criticism from the British Joint Copyright Council in 1961,[62 ]who expressed disappointment about the decision not to recommend the introduction of moral rights:
This Council regrets that the Committee has not seen fit to recommend a provision for the moral right. Quite shocking debasement of great works of music and art, in particular, for the purpose of commercial advertising is common nowadays, sometimes even when the work is still copyright. The author in that case is, however, usually helpless ... If the work is not copyright the position is hopeless. It is submitted that the State has a duty to discourage, at the least, the defilement of the national treasures of music, literature and the arts.[63]
Moral rights arose again in the international scene at the Stockholm Revisions in 1967. As in Rome and Brussels, the common law countries resisted the extension of moral rights protection, particularly the proposal that the term post mortem auctoris be made compulsory.[64] The British and Irish delegates were vehemently opposed to this proposal because they believed it was inconsistent with common law principles such as defamation law,[65] and dissension over this issue led to the proposal’s rejection by a small margin.[66] However, the common law countries demonstrated a willingness to compromise, and the British delegate, William Wallace, proposed that his government could extend the right to claim authorship for a post mortem auctoris period of 50 years, with the following an escape route for common law countries in Article 6 bis(2) of the Stockholm Act:
Those countries whose legislation, at the moment of their ratification or accession to the new Act, did not provide for the post mortem auctoris protection of all the rights set out in para (1) might provide some of these rights after his death cease to be maintained.[67]
Following the Stockholm revision, the Australian Government introduced the Copyright Act 1968 (Cth), which did not contain moral rights provisions. The issue of moral rights then became more or less dormant in the political arena until the mid-1970s.
Moral rights re-emerged in public discussion when the Whitford Committee released its report entitled Copyright and Designs Law.[68] This report came to the opposite conclusion of its predecessor about the introduction of moral rights, finding strong evidence to suggest that English law did not do enough to meet international obligations created by Article 6 bis. Consequently, it recommended that the government introduce express legislative moral rights provisions:[69]
1 Though not suggesting that our Act should be drafted in these words, we approve the general philosophy, and in particular:
2 The fact that the right of ‘paternity’ is expressed as a right to prevent some other person being named as the author.
3 ‘Reasonable’ modifications are allowed.
4 Though not passing with the copyright the rights can in appropriate circumstances, be waived. We have in mind the case of a ghost writer who, for a fee, will write the memoirs of some celebrity, or an author who readily agrees to changes so that his work may be filmed or broadcast.[70]
Two main issues were raised as concerns. Firstly, the introduction of a long-term right of integrity may create complications for some industries such as film production, particularly by the heirs of authors. Second, in situations where there are multiple authors, for example design teams, it may be difficult to acknowledge authorship.[71 ]The Whitford Committee thereby recommended the introduction of a regime of moral rights modelled on the provisions contained in the Netherlands Copyright Act,[72 ]considered to contain fairly attractive features:
the right of integrity was not enforceable where it would be unreasonable for an author to object; the author retained a right to make ‘such modifications to a work as he may make in good faith in accordance with the rules established by social custom,’ and the right could in appropriate circumstances be waived.[73]
The recommendation to introduce moral rights provisions into the British legislation was accepted by the government, but the resultant moral rights regime differed significantly from the proposed Netherlands model.[74] In Australia, around the time of the Whitford Report, the debates also widened to consider whether Australia should also introduce moral rights in order to fulfil the international obligations under Berne.[75 ]
The National Symposium on Moral Rights of 1979 was the culmination of work on moral rights carried out by the Australia Council and the Australian Copyright Council over a number of years. The Visual Arts Board of the Australia Council had examined the issue of moral rights in 1977 and concluded that the Copyright Act should be amended to incorporate moral rights, recommending:
Then, in 1978, the Visual Arts Board Sub-committee resolved that a National Symposium should be held to discuss the recommendations, with the aim to:
1 evaluate the real needs of the Australian artists for protection of their moral rights,
2 examine the extent of moral rights protection now available under Australian law,
3 explore the possibility and desirability of extending moral rights protection.[77]
The 1979 symposium was well attended by stakeholders from all walks of life, and lively debates ensued. Some questioned whether moral rights were a possibility for Australia at all. For example, writer Thomas Keneally commented that Australian culture would not support such a shift in the paradigm:
It was at this symposium that examples of breaches of the integrity of works became more publicised, with the general tenet that there needed to be more support and better legal protection for artists.[78]
A report commissioned by the Australian Council, known colloquially as the Martin and Bick Report,[79] was released in October 1983,[80] to ‘advise the Australia Council on whether legislation to protect artists’ moral rights should be introduced and if so, what form it should take’.[81 ]The major recommendations of this report were as follows:
As a consequence, debates about moral rights started to build momentum, and in 1984 the Australian Copyright Council produced another report on moral rights,[83 ] endorsing the push for the urgent protection of the rights of artists and authors. While some of the debate still focused upon whether or not moral rights should be introduced, it also considered what moral rights should look like, signifying a movement towards a new way of conceptualising the debate.
In 1984, the Copyright Law Review Committee also released a discussion paper on the Protection of Moral Rights of Authors and Artists,[84] inviting submissions.[85] At this time the debate centred upon whether legislative protection was needed for the moral rights of authors and artists, and if so, what form that legislation should take.[86] The debate was structured around a set of comprehensive questions:
1. Whether all or any of the moral rights discussed in the paper [right of recognition/paternity, right of integrity, right of divulgation and right of withdrawal] should be protected by Australian law over and above the protection which is available under existing law;
2. If moral rights were to be protected whether the protection should be extended to all items currently protected by copyright;
3. What the scope of the protection should be for each of the moral rights;
4. Whether the moral rights should be included in the Copyright Act or in separate legislation;
5. Whether the author could have the right to contract out or waive moral rights;
6. What the duration of moral rights should be;
7. Whether the commercialisation of an artistic work should lead to the loss of moral rights;
8. Whether the remedies for breaches of moral rights should include damages or a compulsory order such as injunction (or both);
9. Whether moral rights law should prevail over other legislation concerned with matters of national heritage or town planning;
10. Which body should be empowered to resolve moral rights disputes – ie, whether or not the Federal Court, the Copyright tribunal or another body should have jurisdiction over these complaints.[87]
The Discussion Paper was widely distributed throughout Australia and overseas, and garnered 33 submissions from interested parties, 22 in support of moral rights legislation, and 4 opposing the legislation; the other submissions were either ambivalent or only supported the introduction of the right of attribution.[88] After 10 months, concern was raised by one of the Committee members about the process taking place within the Committee:
a majority, at least, of the committee were not in favour of the adoption of protection for moral rights. This opposition was based primarily on practical concerns – that the difficulties to the community would flow from such rights outweighed any benefit to the authors. However, this conclusion was reached almost entirely on committee members’ perception of problems ... Almost all of our evidence is from proponents of moral rights. I think that we risk criticism if we base a report on our perceptions unsupported by submissions from interested parties.[89] [emphasis added]
Consequently, the Committee wrote to state and local government authorities, publishers, education authorities and postcard manufacturers inviting submissions, which elicited a further 11.[90]
Following the Martin and Bick Report, and the call for submissions by the Copyright Law Review Committee, the Australia Council organised a series of public seminars to continue the debate on moral rights.[91] The objectives were to promote awareness among art workers of the moral rights debates, and to enable the Australia Council to assess the arts community’s views on moral rights in order to prepare a submission to the Copyright Law Review Committee.[92] The seminars in Sydney, Melbourne and Adelaide were not well attended; Brisbane and Perth were cancelled due to lack of interest. Over 500 personal invitations were sent in the hope that 350 people would attend – only 130 attended the three seminars. Thus the seminar conclusion could ‘hardly claim to represent a wide constituency ... [but] reflect the views of the aware, committed minority’.[93]
Notwithstanding the non-representative nature of the gathering, the seminar yielded a wide range of views and found strong support for the introduction of a moral rights regime.[94] In particular, the need for the protection of specific art forms (such as visual arts and crafts) was discussed because of the limited bargaining power of the creators and the lack of collective bargaining power through unions.[95] The rights of attribution and integrity were supported, although there was some debate about how they should take shape. There was a clear division among attendees about whether or not a right to divulge or disclose should be included in a moral rights regime, but no decision was made during the seminar because participants believed more debate was required.
There was, however, more agreement regarding the issue of whether there should be a right to withdraw or retract, and that this right should not exist unless there was a violation of the integrity of a work.[96] Whether an author should have the right to contract out or waive moral rights brought a negative response from most participants; however, concern was raised by people involved in television, film and recording, who had opposing views. The debate ended with a desire for more discussion, and the Australia Council used the information provided by participants throughout the seminar to write a submission to the Copyright Law Review Committee.
Although some submissions appeared to suggest that moral rights were unnecessary, because practices were already in place to deal with moral rights,[97] and a minority of submissions were absolutely opposed to the introduction of a moral rights regime,[98] there was overwhelming support for a moral rights regime. The majority of submissions favoured the introduction of the right of attribution, to give authors a measure of control over the use of their work over and beyond the existing protection that copyright law provided. For example, in submissions made by two organisations,[99] reference was made to the statutory licence under section 53B of the Copyright Act, where educational institutions could make multiple copies of copyright works. Other institutions believed that they had instituted procedures to manage the problem.[100]
In addition, many submissions discussed the bargaining power of artists and authors to negotiate adequate contracts,[101] pointing out that the provisions of contracts were of no use in controlling moral rights abuses by persons who were not party to the contract. Some submissions argued that the provision of the attribution right would create significant difficulties from a practical perspective.[102] For example, one newspaper organisation argued that it would require all reporters and contributors to advertisements be named, which ‘involved more names in the attribution than the size of the end of the article which is published’.[103] Similar responses were received from radio broadcasters, who said that the right was ‘unreasonable’ and ‘disruptive to the flow and atmosphere’. In contrast, some submissions believed that the proposals posited by the Copyright Law Review Committee did not go far enough to respond to the problems confronting artists.[104]
On 3 March 1986, in the middle of the Copyright Law Review Committee process, the Australian Federal Parliament and the British Parliament enacted almost identical legislation entitled Australia Act 1986, which meant that Britain no longer had the power to make laws for Australia, and that Australia was finally legally independent.[105] However, Australia continued to maintain, to a large degree, deeply ingrained deference to English law and precedent.[106]
The 1988 report found the decision of the Copyright Law Review Committee to be divided. The majority of the Committee,[107 ]albeit a small one,[108 ]concluded that it was ‘inappropriate’ for moral rights to be introduced into Australian law at that time.[109 ] Despite suggesting that Australia’s obligations as a signatory to the Berne Convention were a valid basis for introducing moral rights,[110] the majority decided that as there had been ‘no criticism at an international level of Australia’s present position,’[111] moral rights should not be introduced. Five main reasons were provided: the proponents of moral rights had not addressed the practical problems in changing legislation to include moral rights adequately;[112] there was no identifiable theoretical basis for moral rights in a common law legal system;[113] there was insufficient support from authors and artists about the introduction of moral rights, and reports of violations were too infrequent to warrant legislative change; and it was unlikely this would be supported by the public.[114 ]The majority did not believe there should be any more discussion on the right of disclosure and the right of withdrawal; the minority were in support, and there was no evidence to support the adoption of these rights.[115 ]
Members in the minority considered that legislation including moral rights should be introduced, according the moral rights of integrity and attribution to authors and artists. The minority view contained in the report gave a comprehensive precis of moral rights in other jurisdictions, and addressed the pros and cons.[116 ]However, regardless of the slim majority against change, the Government decided to accept the Committee’s recommendations and maintain the status quo,[117] meaning that Australia was in conflict with the recommendations of the Whitford Committee in the UK and the decision to introduce moral rights protection in legislation.
The decision by the Committee attracted a great deal of criticism, particularly from eminent scholars such as Professor Sam Ricketson, who started what would be a lengthy discourse around moral rights as an international obligation:
Australia presently [stood] in breach of Art 6 bis in so far as the right to claim authorship is only partially protected and in so far as the protection accorded to both rights of attribution and integrity only survive the author in very limited circumstances. Specific legislative reform is clearly required in order to fill these gaps and it is regrettable that the Copyright Law Review Committee should have come to the contrary conclusion.[118]
In Canada, substantial changes were made to the Copyright Act in 1988, including the definition of the nature of moral rights. This meant that authors had the right to integrity, the right to be associated with the work as its author, by name or under a pseudonym, and the right to remain anonymous. Moral rights had been successfully enforced on a number of occasions, the most famous of which was Snow v The Eaton Centre.[119]
A major overhaul of British copyright law also took place in 1988 after the government accepted the conclusions of the Whitford Committee and introduced a moral rights regime. However, the regime was heavily criticised by many scholars who believed that it had been unduly influenced by pressure groups, particularly because of the waiver provisions, which effectively rendered artists and authors impotent to assert their moral rights.[120] Eminent intellectual property scholar Jane Ginsburg said:
Their drafters seemed to have lacked real conviction on the desirability of moral rights ... the [Parliamentary] debates suggested that they were primarily concerned to preserve the interests of exploiter groups against moral rights encroachments, rather than to recognise and enforce authors’ interests.[121]
Another distinguished intellectual property scholar, Professor William Cornish, made it clear that the moral rights regime would be open to a great deal of discretion and goodwill of the courts to ensure more than merely symbolic protection:
Let us hope ... that the significance of the root idea will begin to penetrate judicial attitudes, so as to lay a foundation for somewhat less meagre protection in future statutes. In Continental Europe, moral rights did not emerge in their full glory in a single triumphant burst. They were the product of an evolution, much of it in case-law ... While the new statutory provisions lay very considerable constraints on the operation of the new law, there also remains room for manoeuvre by the courts. They should strive to ensure that the less established and less self-possessed authors, artists and directors have a degree of aid in establishing norms of reasonable commercial behaviour among those who exploit their creations.[122] [emphasis added]
Regardless of the optimism expressed by some scholars, the general consensus amongst commentators was that the legislation reflected a compromise which favoured stakeholders with economic clout:[123] ‘Britain lost sight of its goal in the legislative process, and the result was the creation of rights that are well below the Berne Convention standard.’[124]
In 1989, the Institute for Cultural Policy Studies at Griffith University in Brisbane held a seminar entitled Moral and Pecuniary Rights. According to the Seminar Director, David Saunders,
The concern lay not with intellectual property law and culture in general but with creators’ moral rights and the visual arts in particular. In other words, the aim was to approach the rights in question differently, to see them as appropriate in some sectors of cultural activity and in some legal conditions but perhaps not in all.[125]
The seminar presented diametrically opposed views on the value of a moral rights regime, although the general consensus of participants was that moral rights protection was necessary. Change was in the wind, and a shift in thinking about moral rights was imminent.[126]
III 1990-2000 – The Second Era of Debates
In 1990 a shift took place, from questioning whether moral rights should be introduced, to the question of what form moral rights should take. The Australian Copyright Council was invited ‘to put a case to the Attorney-General of a practical workable moral rights legislative scheme that would satisfy a demonstrated need, as well as ensure Australia’s compliance with the Berne Convention’.[127] The culmination of that invitation was the Australian Copyright Council’s Report on moral rights, which endorsed the need for moral rights protection to put authors and artists in a stronger bargaining position, and allow them greater recognition and control in relation to their works.[128]
In 1991, the Australia Council released a booklet entitled Moral Rights of Artists – A Code of Practice,[129] with the aim to provide information to authors and artists on what moral rights mean to them, and highlighting their limited protection under Australian law. At this time, the issue of moral rights protection was placed on the agenda by the Standing Committee of Attorney-Generals, and the Cultural Ministers Council, precipitated by the public treatment of a large ceramic relief entitled Progress of Man by Karl Duldig. The façade of the relief was effectively destroyed by the new owners of the office complex in which it was installed,[130] which outraged a number of Melbourne residents and became the focus of intense media scrutiny. It also led to the formation of the Group for the Protection of Public Art, who started to lobby the Victorian Minister of the Arts, who in turn joined forces with their New South Wales equivalent to petition the Commonwealth Government on moral rights.[131] The Cultural Ministers’ Council gave support for moral rights legislation in principle, and in June 1993 a resolution of the Cultural Ministers Council stated, ‘That the Cultural Ministers’ Council strongly supports the concept of moral rights for artists ... especially where moral rights should extend beyond the visual arts.’[132]
At this time, the government acknowledged growing criticism from academics, including Professors Crawford, Ricketson and Lahore, all of whom claimed Australia’s stance on moral rights was in breach of international obligations per Article 6 bis, to which Australia had been a signatory for almost 60 years.[133 ] This focus upon the question of international obligation dominated most if not all of the literature on moral rights coming out of Australia at this time, shaping the way moral rights were critiqued and conceptualised during this era.
In 1993, the federal government released the pre-election cultural policy statement Distinctly Australian, in which moral rights were identified as an area of copyright that required review.[134] Then came the joint announcement by the Minister for Justice, the Hon Duncan Kerr MP, and then Minister for Arts and Administrative Services, Senator Bob McMullan, that ‘the government would move to provide greater protection for the works of Australian artists, authors and other creators. To this end, a discussion paper would outline the framework for possible legislation on which comment would be sought.’[135 ]In this joint statement, four broad reasons were expressed:
1. A responsibility of the government to protect an artist’s right to legal recognition of the creator of a particular work, and to guarantee the integrity of the artist’s works, which responsibility could only be effectively met through appropriate legislation;
2. The obligation as a signatory to Berne;
3. The rapid technological advances which enable reassembly and reproduction of art works has increased the vulnerability of artists and heightened the need for moral rights legislation; and
4. In order to keep in line with a movement by the international community towards increased rights for creators over their works.[136]
The 1994 Discussion Paper entitled Proposed Moral Rights Legislation for Copyright Creators[137 ]signalled the beginning of debate about the shape that moral rights should take in Australian jurisprudence. The Keating Labor government invited submissions from interested parties and proposed a legislative framework. The Discussion Paper was met with both enthusiasm and reticence, and one enduring concern was that the enacted rights should be more than just tokenistic or a symbolic gesture to the arts community and other relevant organisations.[138 ]
The Discussion Paper indicated that moral rights would be introduced into the Copyright Act, rather than in a separate piece of legislation,[139] in order to be consistent with other comparable countries, such as the United Kingdom and Canada. The government proposed that moral rights be limited to the right of attribution and the right of integrity, because they were the obligations under international law. The government also specifically indicated that the right of withdrawal and the right of disclosure would not be considered, because they were not included in Article 6 bis:
It is considered that the right of disclosure is adequately protected in Australia...and that once a work is published it cannot realistically be withdrawn. Its effects can only be modified by the creation of a new work or perhaps some public comment made by the author..[140 ]
The pressure from commentators that obligations were not being fulfilled cannot be underestimated. The shape of moral rights in Australia had been decided based on a perceived need to fulfil an international obligation, rather than applying the concept to the Australian context, which had obvious consequences, particularly for Indigenous creators.
The government proposed that moral rights would apply to all authors covered by copyright, including all literary, dramatic, musical and artistic works, but not computer programs.[141 ]The application of moral rights to films was addressed separately, because apart from its categorisation in the Copyright Act, it was proving to be an increasingly complicated and controversial issue. The government proposed that the rights should be inalienable,[142] that they should exist for the same period as copyright,[143] and could only be made actionable by an individual or their legal representative.[144] It was also proposed that the scheme should not be retrospective, and that there would be no action for any act or omission which occurred prior to the enactment of the legislation.[145]
The Film Finance Corporation and the Australian Film Commission started lobbying the government about their perception that a moral rights regime would bring the film industry to a grinding halt.[146] Nevertheless, the government proposal said that ‘the scheme should provide that the moral rights be accorded to the individual or individuals who made the decisive creative contributions to making the film’.[147 ]The caveat was, however, that ‘where the effective creative contribution in the making of the film was not specified contractually, and, as a result, uncertainty [existed] as to whom the moral rights attach to, they should lie with the producer’.[148 ]This decision heralded the beginning a series of long and tortuous debates about moral rights, and obscured considerations of key aspects of a moral rights regime, including the subject and object.[149]
The government also expressed a desire for a workable and practical scheme,[150 ]and an increasing concern that any moral rights regime would paralyse some industries by proposing that the rights be applied to authors of works and producers and directors of films, where reasonable.[151] The proposal also outlined factors to be taken into account: the nature of the work, the use of the work, and the context in which the work appeared; any industry practice relevant to the work; any difficulty or expense incurred as a result of identifying the author; whether the work had been created in employment; and whether the work of the author was identifiable or was part of collective work.[152]
In a controversial move, the government proposed that moral rights should be waived by an instrument in writing, signed by the author, producer or director. The proposed waiver could be specific to a particular work or a general waiver for all existing or future works.[153 ]The waiver provision pandered to the growing concern that moral rights would cripple creative industries, particularly industries that attracted a lot of investment, such as the film industry. The final proposals made by the government were about the remedies for breaches, including: damages; an injunction to prevent infringement of the moral right; a declaration of the right; a court order that in future the author be identified in a certain manner; an order that the defendant make a public apology; and an order that the derogatory treatment of a work or film be removed or reversed.[154 ]It was also proposed that the Federal Court and State Supreme Courts would be preferred for handling moral rights disputes.[155]
In February 1996, after considering the submissions, the government released an Exposure Draft Copyright Amendment Bill, which basically reflected the proposals in the Discussion Paper. However, there was no time to introduce the Bill because when the federal election was held in March 1996, there was a change of government and the Coalition Party came to power.
In June 1997, the Coalition government introduced the Copyright Amendment Bill 1997, which upheld its pre-election arts policy. The moral rights provisions in the 1997 Bill were very similar to the ones outlined in the Exposure Draft Bill released by the previous government. Attorney-General Darryl Williams[156] commented that the 1996 election promise included ‘the strong policy commitment to bring an up-to-date and workable copyright law, and specifically to legislate to recognise properly the moral rights of authors and artists’.[157] The proposed moral rights were ‘not just fulfilling international obligations; it is also acknowledging the great importance of ensuring respect for the integrity of creative endeavour’.[158] In his speech he tacitly acknowledged that up until this point, the law’s protection had been inadequate:
The right of attribution [would] be an important advance for authors, artists and film producers and directors because they have no comprehensive right beyond any relevant contract to require attribution ... The right to integrity will provide a more certain and uniform level of protection than the laws of defamation, which vary from state to state or territory, and will, consistently, with the Berne Convention, last as long as copyright in the work; that is, life of the creator, plus 50 years, or in the case of films 50 years.[159]
Williams acknowledged the concerns of the industry users of copyright,[160] that moral rights would ‘unduly hamper their existing practices. It is understandable that they fear the use of moral rights by creators as an additional form of leverage to extract higher returns for the use of creators’ works’.[161]
On 26 June 1997, particular provisions of the Copyright Amendment Bill – mainly, but not exclusively, the moral rights provisions – were submitted to the Senate Legal and Constitutional Legislation Committee for further inquiry and report by 2 October 1997.[162] The Selection of Bills Committee requested the consideration of the detailed application of the proposed moral rights legislation, and who should be entitled to moral rights in relation to cinematograph films.[163] The Committee wrote to relevant arts organisations, film industry bodies, government departments and other individuals and organisations, inviting submissions on the Copyright Amendment Bill. The Committee received 118 submissions, and held a number of hearings in Canberra on 18 and 19 August and 2 September 1997.
The interest in moral rights at this time mostly concerned the economic impact of the new regime. One member of the Committee, Senator McKiernan, actually questioned whether there was something inherently wrong with the Bill because of the enormous number of submissions to the Committee.[164] In an attempt to quell any concerns, Chris Cresswell, Assistant Secretary, Intellectual Property Branch, Attorney-General’s Department, said,
the government considers the moral rights legislation to be a workable scheme that provides creators with appropriate recognition of their works or films, and at the same time does not unduly hamper industries which need to use copyright materials.[165 ]
Most of the moral rights submissions lodged with the Committee strongly supported the introduction of the new legislation,[166] although many submissions argued how the legislation could be improved. As a result, the Committee recommended a number of changes to the Bill, which reflected concerns about its economic impact. This fixation upon a very narrow perspective fundamentally changed moral rights as they appear today: the inclusion of the screenwriter as an author of a film, as well as the screenplay; the retention of the producer as an author for the purpose of a moral rights action; the waiver allowed for specific works or specified descriptions in existence; that moral rights would not be applicable for films made before the legislation; or, in the case of other works, in those created by authors who died before the introduction of the moral rights regime.
The intense lobbying of the government continued after the completion of the Senate Committee’s Report. In August 1998, the Attorney-General’s Department and the Department of Communications, Information Technology and the Arts held a consultative forum in an effort to reach some unanimity on the issue of waiver.[167] In an admission that the focus of the debate on the issue of waiver of moral rights had been dominated by the film and television industry, the Attorney-General indicated that consultations with other interests were necessary in order to reach a resolution.[168 ]According to the Australian Copyright Council, the focus of the discussion was whether moral rights legislation should contain a waiver provision, and what form that provision should take.[169 ]Creator representatives were completely anti-waiver, while producer representatives wanted comprehensive waiver provisions.[170]
In what was deemed a ‘circuit-breaking proposal’,[171] the Australian Writers Guild offered a co-authorship agreement in return for the removal of waiver provisions in the legislation. The idea of the co-authorship agreement was that creators who collaborated on film or television productions could agree to limit their moral rights. This solution initiated a working party and heralded the beginning of more cohesive negotiations between film and television industry groups.[172] However, this proposal was not well received by members of the creative arts sector, who warned that the proposals should be debated, with further consultation and agreement within the creative sectors.
The matter was then left for industry participants to settle.[173] In March 1999, the working party provided the Attorney-General with a negotiated proposal regarding the waiver of moral rights. The proposal argued that waiver provisions should be removed from the legislation, and that co-author agreements be introduced. These agreements were essentially a covenant between various authors of a film to not individually exercise their moral rights without the consent of the other authors.[174 ]The other features of the proposal were:
That an author of a film would be unable to exercise moral rights until the film was completed;
That the author’s right of integrity in a film would expire with his or her death (but the right of attribution would last for the same period as the copyright); and
That an author of a film would be obliged to attempt to resolve a dispute in relation to moral rights through mediation before instituting legal proceedings.[175]
As a result of these discussions and proposals, the Copyright Amendment (Moral Rights) Bill 1999 (Cth) was introduced on 8 December 1999, to establish ‘a comprehensive regime for the protection of the moral rights of Australian authors, artists and film-makers’. In essence, this affirmed the belief that international obligation was the only paradigm for a moral rights regime:
Moral rights are also the subject of longstanding international obligations for Australia.
The Berne Convention for the Protection of Literary and Artistic Works is the main international convention on copyright. Under the convention, ‘moral rights’ are:
The right of an author or artist to be identified with his or her works – known as the right of attribution; and
The right to object to alteration or other derogatory treatment of the work that would be prejudicial to the author or artist’s honour or reputation – known as the right of integrity.[176]
... At its most basic, this Bill is a recognition of the importance to Australian culture of literary, artistic, musical and dramatic works and of those who create them.[177]
Experience in other countries suggests ... that enforcement of moral rights through the courts will be an exceptional occurrence. We believe that the main impact of the new legislation will be to build upon existing good industry practice and, where necessary, to raise awareness in an educative way of the need to respect the creativity of authors and artists.[178]
Debate on the Bill was adjourned to allow for further consultation with interested groups and stakeholders after government and Senate amendments.[179] On 7 November 2000 the amended Bill was introduced into the Senate, and debated a month later. The debate was dominated by discussions about the application of the moral rights regime for Indigenous people. Senator Bolkus from the opposition discussed the limitation of the proposed legislation:
For Indigenous Australians, art is an expression of all aspects of life and identity ... a major way of passing on culture to future Indigenous generations. Many Indigenous artworks depict culturally important content such as creation stories and ceremonies. Certain images, techniques and styles have developed over time, originating from and identifying particular Indigenous groups. Indigenous law and custom may control the use of these ...
There are of course issues in relation to extending moral rights protection to Indigenous clans over works that contact traditional ritual knowledge. This has not been addressed in this legislation.[180]
Senator Aden Ridgeway from the Democrats, while supportive of the moral rights regime in theory, moved the Democrats’ amendments, which included an additional section of moral rights for Indigenous cultural work:[181]
Moral rights in relation to an Australian cultural work created by an Indigenous author, under the directions of an Indigenous cultural group, may be held and asserted by a custodian nominated by the relevant Indigenous cultural group as its representative for the purposes of this Part.
The amendments were not supported by the Opposition, due to consternation about the length of time Senator Ridgeway had given members to peruse the proposal, and a heated exchange between Senator Ridgeway and Senator Bolkus took place.[182] The Senate then moved several amendments, many of which were drafted to address the concern of creator groups. The most significant amendments moved were as follows:
The Bill was passed on the same day it was debated, becoming the Copyright Amendment (Moral Rights) Act 2000, which received Royal Assent on 21 December. Much of the literature following the legislation constitutes an explanation of how the ambiguities may play out in practice.
The reception of moral rights into Australian law has been shown to be usefully divided into two distinct eras. The first, between 1928 and 1989, revolved around the question of whether moral rights should be introduced. In the second era, from 1990 to 2000, the question became what form moral rights should take. Not surprisingly, much of the debate since the mid-1990s has been dominated by the economic interests of powerful stakeholders with their own commercial agendas. However, Part Two of this article will discuss how this theme of economic interest in moral rights discourse is accompanied by two other themes of foreignness and international obligations, and the relative dominance of each of these three themes has shifted over time. Understanding the historical foundation of moral rights provides in Australia provides a useful context in order to gain a further understanding of how moral rights arose in their current form.
[*] LLB (Hons), B. Com, PhD Research Fellow, Socio Legal Research Centre, Griffith Law School. This work forms part of a larger research project. The author would like to acknowledge the earlier assistance of Professor Brad Sherman and Mr Shaun McVeigh in a former version of this paper.
[1] Sam Ricketson, ‘The Case for Moral Rights’ (1995) Intellectual Property Forum 37, 38.
[2] Sam Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886-1986 (1987) 456; Christopher Aide, ‘A More Comprehensive Soul: Romantic Conceptions of Authorship and the Copyright Doctrine of Moral Right’ (1990) University of Toronto Faculty of Law Review 48, 211.
[3] M A Roeder, ‘The Doctrine of Moral Right: A Study in the Law of Artists, Authors and Creators’ (1940) Harvard Law Review 53, 554.
[4] How this evolved, however is a matter of contention, see a compelling discussion of this in David Saunders, Âuthorship and Copyright (1992) 75.
[5] Michelle Cooper, ‘Moral Rights and the Australian Film and Television Industries’ (1997) Copyright Reporter, 15, 166.
[6] Bernard Carey, ‘Moral Rights in Australian Law’ (1992) The Macquarie Management Papers, 4.
[7] Available archival material did not reveal any active discussion of moral rights until the time of the Rome Conference, hence the starting point of 1928.
[8] See International Union for the Protection of Literary and Artistic Works (1927). Proposals with Statement of Reasons Prepared by the Italian Administration and the International Bureau at Berne, Administration, I, NAA: A467/1, SF1/6, (1927-1928). Diary of Sir William Harrison Moore, University of Melbourne Archives 63/1, 2/1/2.
[9] And they were prepared to accept this resolution in a modified form, see (1928). Rome Copyright Conference– Report of the British Delegates, NAA: A432/86, 29/265, 11.
[10] Ibid 11.
[11] Australia, New Zealand and England. The importance of alliance and unity of the common law countries was an integral part of advancing to an international forum such as the Rome Conference.
[12] See International Institute for Intellectual Cooperation Report of the Subcommittee on the intellectual rights of authors and their extensions, ‘Droit moral ou droit au respect' (session of July 1927) in La Protection internationale du droit d'auteur (1928). See also Ricketson above n 2, 459.
[13 ] P Grunebaum-Ballin, Le Droit Moral Des Auteurs Et Des Artistes – Commentarire d’un projet de Textes sur le Droit Moral à insérer dans la Convention de Berne revisée (1928) Paris Imprimerie du Palais.
[14 ] See Conference Internationale de Rome Pour la Protection des Oeuvres Litteraires et Artistiques, Rome le 18 Mai 1928, Premiere Sous-Commission (1928). Conference Internationale de Rome pour la Protection des Ouvres Litteraires et Artistiques – Droit Moral, Presidence de M Edoardo Piola-Caselli puis Presidence de M Jules Destree, 8 Mai 1928, 4.
[15 ] British Delegate, Rome Copyright Conference –Report of the British Delegates, above n 9; International Union for the Protection of Literary and Artistic Works, above n 8.
[16] See Premiere Sous-Commission, above n 14, 16 (18). My translation: First, a terminology difficulty has to be cleared. At the moment where we decided to include in the Berne Convention, the notion of what we agreed on calling the ‘moral right’, we asked whether we should we keep this designation under which, we could say, has been popularized, in the doctrine and the ‘jurisprudence’, rather than in legislation, which is a relatively modern conception ? But it is criticised. M P (3) in concern M Stolfi in Italy (4), M Destree and other authors have shown how imperfect it was. But, at least, it shows the advantage of being common, of being known. Would the other expressions suggested instead of moral right, be better? M Stolfi suggested ‘personal rights’. But these expressions don’t make a big enough difference between non-financial right, which we’re talking about here, and the financial right or right of exploiting the works. M Destree, in his text prepared for the Conference of Rome, qualifies this non-financial right of ‘Right of Respect’. The expression is clear and imaged, of course, but it does not avoid danger to which we expose ourselves too easily, when we enter this field so recently explored and of which the limits are still unknown: it does not include all the cases where the moral right can be exercised, but only a few of them, particularly notable. Because it is ‘less bad’, as M Jean Rault (1) calls it, we have to agree to insert in the international texts, the expression of ‘moral right’, which, from the French professors and Magistrates language (2), went to the legal vocabulary of other countries (3) and even in some legislative texts.
[17] William Harrison Moore, Report of the Australian Delegate to the Parliament of the Commonwealth of Australia on the International Copyright Conference (1928) Command 31 Canberra, 6. Sir William Harrison Moore was a constitutional lawyer and academic who worked closely with both the Victorian Government and Federal governments on constitutional matters and was often consulted with by the Governor General Sir Ronald Munro Ferguson on constitutional questions. Harrison Moore had a keen interest for Imperial Relations and was actively involved as a delegate to the League of Nations (1928) see Sir William Harrison Moore, Personal Diary, Unpublished, University of Melbourne Archives 63/1, 2/1/2.
[18] S G Raymond, Report of the New Zealand Delegate International Copyright Conference (1928) H -10A, 6.
[19] Moore, above n 17; Rome Copyright Conference – Report of the British Delegates, above n 9, International Union for the Protection of Literary and Artistic Works, above n 8, Raymond, above n 18, see also Premiere Sous-Commission, above n 14.
[20 ] International Institute of Intellectual Cooperation, above n 12.
[21] According to the Reports made to respective parliaments by the Australian delegate, Sir William Harrison Moore, the British delegate Mr Beckett (from the British Foreign Office) and the New Zealand delegate, Mr Raymond KC.
[22] My translation: In view of terminating the practical possibilities susceptible to regrouping all delegations, the Italian Delegation has made an effort to research the proper method by which one could move closer to the Anglo-Saxon right to the Continental right, the rewriting translates certain aspects of the author’s moral right which could receive the approbation of the British Delegation of which the internal right reveals particular demands upon that which concerns this high and solemn affirmation of the author’s right, See Premiere Sous-Commission, above n 14, 16.
[23] Cited in Ricketson, above n 2, 460.
[24] Moore, above n 17. The moral rights which became part of this discussion were: the right to claim authorship and the right of protection against any use of the work which impairs the honour and reputation of the author.
[25] Rome Copyright Conference, above n 9; International Union for the Protection of Literary and Artistic Works above n 8, 12.
[26] Moore, above n 17, 6–7; Report of the British Delegates above n 9, 11; Raymond, above n 18, 6.
[27] My Translation: The French delegation also feels a deep gratitude towards Great Britain and the Dominions who, abstracting the great difficulties with their own juridical institutions, have accepted a text that, on practical grounds and leaving aside doctrinal controversies, seems to be able to create a unanimous accord. This text certainly does not cover every problem, but it constitutes the first decisive step towards the realisation of ideals common to all nations and races represented here, Premier Sous-Commission Conference Internationale de Rome pour la Protection des Ouvres Litteraires et Artistiques– Droit Moral, above note 14, 38.
[28 ] Moore, above n 17, 6.
[29] Moore, above n 17, 6.
[30] Moore, above n 17, 6.
[31] Moore, above n 17
[32] Moore, above, n 17.
[33] See Harold Fox, ‘Some Points of Interest in the Law of Copyright’ (1945–1946) VI The University of Toronto Law Journal 100 126.
[34] Gerald Dworkin, ‘Moral Rights and the Common Law Countries’ (1994) Australian Intellectual Property Journal 5, 5.
[35] See Ricketson, above n 2, 462.
[36] Ricketson, above n 2, 462-463.
[37] Ricketson, above n 2, 464. See also Report of the Departmental Committee on International Copyright (1935) University of Melbourne Archives: 2/9/27.
[38] Ricketson, above n 2, 464.
[39] Ricketson, above n 2, 462-463.
[40] Cited in Ricketson, above n 2, 464.
[41] Bruce Kercher, An Unruly Child (1995) 175.
[42] Ibid.
[43] Ibid 176.
[44] Summary of Submissions on Copyright Law in Relation to the Copyright Act, 1956 of the United Kingdom, A432/79; I63/2008 PART 2.
[45] Board of Trade, Copyright Committee Report of the Copyright Committee (1952) HMSO: Cmd 8662, para 219, 80, para 219.
[46] Ibid 80, para 220.
[47] Ibid 80, para 223.
[48] Ibid 80, para 225.
[49] Ibid 81–82, para 225.
[50] Under section 43 of Copyright Act 1956. See this in ibid, para 219–226.
[51] Commonwealth of Australia, Report of the Committee Appointed by the Attorney-General of the Commonwealth to Consider what Alterations are Desirable in The Copyright Law of the Commonwealth, (1959) 7.
[52] Ibid.
[53] Ibid 90.
[54] Law Council of Australia Submission – Report of the Law Council of Australia on the Review of Copyright Law (1959).
[55] D Orban, Letter to Copyright Law Review Committee (1958) 1 NAA: A432/80, 58/2338.
[56 ] Office of Education Submission to the Copyright Law Review Committee (1958) 1 NAA: A432/80, 58/2338.
[57] Minutes of the Meeting of the Copyright Law Review Committee Held at the Commonwealth Industrial Court, Melbourne at 10.30am on 16 June 1959 and adjourned to 10.30am on 17 and 18 June 1959, para 37 ‘Moral Right’ A432/80, 59/2019.
[58] Meeting of the Copyright Law Review Committee held at the Commonwealth Industrial Court Building at 11am on 13 January 1959 and adjourned to 10.30am on 14, 15 and 16 January 1959 at para 7, 1.
[59 ] Commonwealth of Australia above n 51, 10, para 20.
[60] Memo by The Attorney General, Amendment of the Copyright Act, A432/79 1960/2101 Part 1.
[61] Commonwealth of Australia above n 51, 90.
[62 ] See British Joint Copyright Council Memorandum on the Report of the Committee on Copyright Law Revision of the Australian Commonwealth (1961) NAA: A432/80, 1960/2101 PT1.
[63] Ibid 11.
[64] After the author’s death.
[65] Ricketson, above n 2, 466.
[66] 14 votes to 11 with 5 absentions – see Ricketson, above n 2, 466.
[67] Ricketson, above n 2, 467.
[68] Department of Trade, Committee on Copyright and Designs (1977) Copyright and designs law: report of the Committee to consider the law of copyright and designs, HMSO: Cmnd 6732 at paras 51–57.
[69] See discussion of this in Dworkin, above n 34, 13.
[70] Department of Trade, above n 68, para 56, 18.
[71 ] See Dworkin, above n 34, 13.
[72 ] In particular at 25, Netherlands Copyright Act 1912-1972.
[73] Dworkin, above n 34, 13.
[74] See in particular, ss 22-89, ss 94-95, s 103. See discussion of this in ‘The Copyright, Designs and Patents Act, 1988 (United Kingdom)’ (1988) 6 Journal of the Copyright Society of Australia 1, 1-9.
[75 ] Australia Council, National Symposium on Moral Rights (1979) 5.
[76] Peter Banki, ‘Moral Rights – An Author’s First Responsibility’ in Australia Council, National Symposium on Moral Rights (1979) 2-3.
[77] Ibid 3.
[78] Ibid 5.
[79] Sylvia Martin and Paul Bick, Moral Rights for Artists: A Report Prepared for the Australia Council (1983).
[80] Banki, above n 76, 2.
[81 ] Martin and Bick, above n 79, 7.
[82] Ibid 4. Additional recommendations can be seen 4-5.
[83 ] Australian Copyright Council Moral Rights (Bulletin No 50, 1984).
[84] Copyright Law Review Committee Protection of Moral Rights of Authors and Artists: Discussion Paper (1984).
[85] Press Statement of the Copyright law Review Committee, October 1984, NAA: Series B84, Item 9524.
[86] Copyright Law Review Committee Report on Moral Rights (1988) 1.
[87] Copyright Law Review Committee, above n 86, 13-14.
[88] Copyright Law Review Committee, Draft Report, Copyright Law Review Committee, Report on reference concerning moral right,( undated) NAA: B85, 15221, 7.
[89] Letter to The Honourable Mr Justice IF Shepherd, Chairman, CLRC, 26 June 1985, NAA: B85, 12693.
[90] Letter to participants, Copyright Law Review Committee, August 1985, 85/12693, Address list of participants 85/12693, Copyright Law Review Committee, Report on Moral Rights, 2.
[91] Jill Nash, Report to the Australia Council by Jill Nash, (1984) Convenor of a Series of Seminars on the Moral Rights of Artists, B84/9524, also Letter to Participants by Jill Nash, 1984, B84/9524 and Dennis Foot, letter to Jill Nash, 1984, B84/9524.
[92] Ibid.
[93] Ibid 4.
[94] File Notes on Sydney Seminar, October 1984, B84/9524, Notes on Moral Rights Conference Held in Melbourne on 14/10/84, B84/9524.
[95] Nash, Report to the Australia Council by Jill Nash above n 76, 4-5.
[96] Ibid 4-8.
[97] Organisation Submission to the Copyright Law Review Committee Report on Moral Rights (1985) NAA: BAD85/12963.
[98] Organisation Submission to the Copyright Law Review Committee Report on Moral Rights (1985) NAA: B85/15221; City Council Submission on Moral Rights to Copyright Law Review Committee, January, (1986) 85/12693; Newspaper Organisation Submission to the Copyright Law Review Committee on Moral Rights, NAA(1986) BAD85/15221; Individual, Submission to Copyright Law Review Committee on Moral Rights, (1984) July 1984 BAD 85/318.
[99] Organisation Submission to the Copyright Law Review Committee on Moral Rights (1985) NAA: BAD 85/4650.
[100] Government Organisation Submission to the Copyright Law Review Committee Report on Moral Rights (1985) NAA: B85/12963 Attachment ECW 1.
[101] Organisation Submission to the Copyright Law Review Committee on Moral Rights (1985) NAA: BAD85/318, 8; Organisation Submission to the Copyright Law Review Committee Report on Moral Rights (1985) NAA: BAD85/318 6; State Government Submission on Moral Rights to Copyright Law Review Committee (1985) December 1985 NAA: 85/12693; State Government Submission on Moral Rights to Copyright Law Review Committee (1985) December 1985 NAA: 85/12693.
[102] Organisation Submission on Moral Rights to Copyright Law Review Committee October 1985 NAA: 85/12693; Organisation Submission to the Copyright Law Review Committee on Moral Rights (1985) NAA: BAD95/318.
[103] Submission on Moral Rights to Copyright Law Review Committee, October 1985, 2.
[104] See for example Organisation, Submission on Moral Rights to Copyright Law Review Committee, June 1985, NAA: B85/15221.
[105] See discussion of this in Kercher, above n 41, 186-188.
[106] Kercher, above n 41, 188.
[107 ] Consisting of Brett Cottle, Ian Govey, Professor Pearce, C Rodgers and D Walsh.
[108 ] Five to four.
[109 ] See Copyright Law Review Committee, above n 86, 1.
[110] Copyright Law Review Committee, above n 86, 11.
[111] Copyright Law Review Committee, above n 86, 11.
[112] Copyright Law Review Committee, above n 86, 10.
[113] Copyright Law Review Committee, above n 86, 10, see this outlined briefly in Dean Ellinson, ‘CLRC says no to Moral Rights’ (1988) 6 Copyright Reporter 20.
[114 ] Copyright Law Review Committee, above n 86, 10.
[115 ] Copyright Law Review Committee, above n 86, 11.
[116 ] Copyright Law Review Committee, above n 86, 31-109.
[117] See pleas from Susan Bridge in her open letter to Attorney-General, Susan Bridge, ‘Moral Rights’ (1988) 6 Copyright Reporter 8 and also Libby Baulch, ‘Commonwealth Reconsidering Moral Rights’ (1992) 1 Arts and Entertainment Law Review 1.
[118] Sam Ricketson, ‘Is Australia in Breach of its International Obligations with respect to the Protection of Moral Rights?’ [1990] MelbULawRw 5; (1990) 17 Melbourne University Law Review 462.
[119] (1982) 70 CPR (2d) 105. This case involved a claim for a breach of the moral right or integrity by an artist Micheal Snow against Toronto Eaton Centre. The action came after the operator of the centre placed Christmas bows on the commissioned sculpture of a flight of geese which were position in the atrium of the Centre by the artist. The artist’s claim was successful.
[120] David Vaver, ‘Authors’ Moral Rights and the Copyright Law Review Committee’s Report: w(h)ither such rights now?’ [1988] MonashULawRw 11; (1988) 14 Monash University Law Review 284, 285; Jane Ginsburg, ‘Moral Rights in a Common Law System’ (1990) Entertainment Law Review 121, 129; Bridge, above n 117.
[121] Ginsburg, above n 120, 129.
[122] William Cornish ‘Moral rights under the 1988 Act’ (1989) 11 European Intellectual Property Review 449.
[123] See discussion of this in Dworkin, above n 34, 28.
[124] Sheila McCartney, ‘Moral rights under the United Kingdom’s Copyright, Designs and Patents Act of 1988’ (1991) 15 Columbia VLA Journal of Law and the Arts 205, 205-245.
[125] David Saunders in Peter Anderson and David Saunders (eds), Moral Rights Protection in a Copyright System (1992) ii.
[126] This culminated in the publication of selected pieces in ibid.
[127] Copyright Law Review Committee, above n 86, 19.
[128] Copyright Law Review Committee, above n 86, 19. See also Implementing Moral Rights in Australia (1993).
[129] Georgia Blain, ‘Moral rights: A Code of Practice’ (1991) 4 Australian Intellectual Property Law Bulletin 53.
[130] See discussion of this in Eva De Jong-Duldig, ‘Moral Rights push Rekindled’ (1992) Arts and Entertainment Law Review 3.
[131] Ibid 4.
[132] Cited in Australian Copyright Council ‘Moral Rights Bill – A Discussion Paper’ (2000); Attorney-General’s Department Proposed Moral Rights Legislation for Copyright Creators – Discussion Paper 20.
[133 ] See discussion of these scholars in Sam Ricketson, The Law of Intellectual Property (1988) 425; James Lahore, Copyright Law (2004) Butterworths Looseleaf Service, 10174.
[134] Attorney-General’s Department above n 132, 2; ‘Moral Rights Protection for Artists’ (1993b) 6 Australian Intellectual Property Law Bulletin 93.
[135 ] Attorney-General’s Department, above n 132, 2.
[136] Cited in Damian Abrahams, ‘Moral Rights: the UK Model for Australia?’ (1994) 2 Arts and Entertainment Law Review 21.
[137 ] Attorney-General’s Department, above n 132; ‘Moral Rights for Creators’ (1995) 5 Arts and Entertainment Law Review 73.
[138 ] Georgia Blain, ‘Government’s Moral Rights Proposals’ (1994) 12 Copyright Reporter 1; Julie Wells, ‘University Staff & Moral Rights’ (1994) 12 Copyright Reporter 22.
[139] Attorney-General’s Department, above n 132, 33, para 3.1.
[140 ] Attorney-General’s Department, above n 132, 37, para 3.17.
[141 ] Consistent with the minority view in the 1988 report at 100–101.
[142] Attorney-General’s Department, above n 132, 50, para 3.68.
[143] Attorney-General’s Department, above n 132, 50, para 3.71.
[144] Attorney-General’s Department, above n 132, 51, para 3.73.
[145] Attorney-General’s Department, above n 132, 50, para 3.72.
[146] Michael Frankel, ‘Moral Rights and the Australian Film Industry’ (1994) 4 Arts and Entertainment Law Review 58; Delia Browne, ‘Desperately seeking ‘Moral Rights’: where are they?’ (1999) 4(2) Media and Arts Law Review 105.
[147 ] Attorney-General’s Department, above n 132, 35, para 3.11.
[148 ] Attorney-General’s Department, above n 132, 35, para 3.12.
[149] Attorney-Generals Department, above n 132, 35, para 3.14–3.15. The government opted out of making any immediate determination on the issue of performers and moral rights. This was mainly because the World Intellectual Property Organisation performances and Phonograms (WPPT) was under review at the time of writing the report.
[150 ] Attorney-Generals Department, above n 132, 37, para 3.20, 3.21, 3.22.
[151] Attorney-Generals Department, above n 132, 39, para 3.25–3.26.
[152] Attorney-Generals Department, above n 132, 39, para 3.26.
[153 ] Attorney-Generals Department, above n 132, 50 para 3.69–3.70.
[154 ] Attorney-Generals Department, above n 132, 51–52, para 3.77.
[155] In preference to the Copyright tribunal – see Attorney-Generals Department, above n 132, 52, para 3.79.
[156] Darryl Williams, Second Reading Speech, Re Copyright Amendment Bill (Australian House of Representatives Hansard for 18 June 1997) 5547.
[157] Ibid.
[158] Ibid 5437.
[159] Ibid.
[160] Including advertising agencies, film-makers, broadcasters, newspaper publishers.
[161] Williams, above n 156, 5437.
[162] See Eric Abetz, Preface to Senate Legal and Constitutional Legislation Committee, Consideration of Legislation Referred to the Committee, Copyright Amendment Bill 1997, Commonwealth of Australia, October 1997, 1.
[163] The other issue for discussion was the proposed amendments to s 35(4) of the Act relating to employed journalists’ copyright Eric Abetz, Preface to Senate Legal and Constitutional Legislation Committee, 1.
[164] Senator McKiernan, Legal and Constitutional Committee Hansard, Monday 18 August 1997 at L&C 6.
[165 ] Evidence Legal and Constitutional Legislation Committee: Copyright Amendment Committee (1997) Hansard, Monday 18 August 1997, 3.
[166] As indicated in Chapter 2 of the Report. Senate Legal and Constitutional Committee Consideration of Legislation Referred to the Committee – Copyright Amendment Bill 1997, October 1997.
[167] Karen Gettens, ‘New Australian Copyright Laws’ (1998) 9 Entertainment Law Review 326.
[168 ] See Opening Address, Daryl Williams Attorney-General, Moral Rights Consultation Forum, 10.00 am, 18 August 1998, State Library of NSW http://www.nationalsecurity.gov.au /www/ attorneygeneralHome.nsf/0/C5D2AFC7A6174646CA256B5F001F8A58?OpenDocument.
[169 ] Australian Copyright Council, above n 132.
[170] Australian Copyright Council, above n 132, 14.
[171] Australian Copyright Council, above n 132, 14.
[172] Australian Copyright Council, above n 132, 14. The working party consisting of film and television industry interests, creators, producers and broadcasters.
[173] Duncan Kerr ‘Copyright Law Reform: "Caught in the Net"’ (2000) 18 Copyright Reporter 102.
[174 ] See Australian Copyright Council, above n 132, 14.
[175] See discussion of this in Australian Copyright Council, above n 132, 14–15.
[176] Darryl Williams, Second Reading Speech, House of Representatives Hansard, 8 December 1999, 13026.
[177] Ibid.
[178] Ibid 13027.
[179] This is discussed in Virginia Morrison, ‘The New Moral Rights Legislation’ (2000) 18 Copyright Reporter 170.
[180] Senator Bolkus, Senate Hansard, Thursday 7 December 2000, 21061.
[181] Senator Ridgeway, Senate Hansard, Thursday 7 December 2000, 21071.
[182] Senator Ridgeway and Senator Bolkus, 7 December 2000, 21061-21064.
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