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CATE BANKS[*]
This is Part Two of an article tracing the complex history of moral rights in Australia which culminated in the Copyright Amendment (Moral Rights) Act in 2000. Part One of this article outlined a genealogy of the moral rights discourse demonstrating how the recent legislation evolved historically through two distinct periods: 1928–1989 and 1990–2000. This part will expand on this history of the moral rights trajectory in Australian law and will reveal that the historical discourse about moral rights was dominated by the emergence of three dominant themes; foreignness, international obligation and economic impact which fundamentally shaped how moral rights eventually appeared in their legislative manifestation. How these themes emerged and impacted on the imagining and subsequent construction of moral rights will be discussed in more detail.
I Introduction
This second Part of the article explores three themes of the moral rights debate in Australia: foreignness, international obligation, and economic impact. Reconceptualising the moral rights discourse in this way helps to explain why the debates about moral rights took their particular course. Although there was some overlap between the themes temporally, at any given time one theme was always dominant. In Section One, the theme of foreignness is revealed as the dominant discourse between 1928 until the 1980s. Section Two discusses how the theme of international obligation became the focus of discourse in the early 1980s. Section Three considers the economic impact of moral rights, which overwhelmed the debate in the mid-1990s, and coincided with the second era (1990–2000), where the question shifted to the form that moral rights should take.
As discussed in Part One of this article, at the Rome conference in 1928, the common law countries, in particular Australia, Great Britain and New Zealand, reacted violently to the suggestion that moral rights be included in the Berne Convention, because they believed it to be a foreign concept unknown to common law.[1]
The Australian delegate, Sir William Harrison Moore, was instrumental in achieving the compromise required to include Article 6 bis at the Berne Convention. Sir William believed it would be difficult to adapt the current legislation to the abstract right, such as it appeared in the proposal under consideration by the Conference.[2] In addition to this, Sir William raised what he saw as a constitutional problem: while the Federal Government had jurisdiction over legislating for an author’s right, it was considered a material right and not a personal right.[3]
Once Article 6 bis had been finalised, it was no longer ‘foreign’ to common law countries, given their influence on its final content and form. For example, the sub-committee agreed to adopt the terminology of honour and reputation rather than moral or spiritual interest because the common law delegates felt that the latter term was ‘too vague and incapable of conveying any clear meaning in British Law.’[4] In so doing, Article 6 bis took on the language of the common law such as defamation which was more familiar to the common law delegates. However, the question remained as to whether Australia would actually provide explicit protection for moral rights given that it was not mandatory, and that they were still seen as foreign, regardless of common law influence.
Sir William made it very clear that some effort was needed to make moral rights ‘fit’ Australian jurisprudence, but he also made it clear that he believed they did not require legislative reform under the copyright power of the Federal Government:[5]
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.[6]
In justifying his position, he concluded that he had ‘clear acknowledgment by the non-common law countries that it was sufficient for these rights to be protected under legal categories other than copyright.’[7]
In the years following the signing of the Convention, there was little discussion about moral rights in a domestic sense until it was raised again as an issue in the 1959 Spicer Committee Report. In its report, the Spicer Committee spent very little time considering moral rights, but reference to the foreignness of the concept was clear. The Committee called the section droit moral, signifying its difference from other common law conceptions: ‘We have received representations regarding what is called on the Continent “the moral right” of the author.’[8] The Committee relied very heavily on the 1956 review of copyright law in the United Kingdom known as the Gregory Report, consistent with the desire to remain a ‘loyal’ subject of Britain.
However, Australia had shed the last official imperial barrier in 1931 after The State of Westminster (UK) was passed, which meant that Australia was essentially an independent legal community within the British empire[9] and the Commonwealth Parliament was at liberty to make its own laws. Nevertheless, the obligations and loyalty to Britain remained an important influence on the Spicer Committee deliberations:
Australian law of copyright, had in substance been the same as that in the United Kingdom... British and Australian authors should have the benefit of similar laws and that by having a similar law to that of the United Kingdom, Australia would obtain the benefit of English judicial decisions.[10]
The Gregory Committee made its position very clear on the foreignness of the concept:
We have headed this part of our report ‘droit moral’ which we believe to be a term unknown to our jurisprudence but is none the less a convenient phrase to describe certain questions which arise out of copyright protection.[11]
It is not surprising that while there was no explicit rejection of the notion of moral rights based on foreignness, the general tenet of the Spicer Report, the explicit reliance on the Gregory Report material, and the focus on the question of fitting within the common law paradigm confirmed that foreignness was still an issue.[12]
The dominance of foreignness as the focal point for moral rights discourse started to wane after the release of the Copyright and Designs Law report by the Whitford Committee in the United Kingdom in 1977.[13] The Whitford Committee had not only come to the opposite conclusion of the Gregory Committee about the introduction of moral rights, but also found that there was strong evidence to suggest that English law did not do enough to meet the international obligations created by Article 6 bis. The Whitford Committee recommended the introduction of a regime of moral rights modelled on the provisions contained in the Netherlands Copyright Act.[14] This was, in effect, a small step away from the long-held view that civil law was foreign and that common law principles were the only paradigm.
Following the Whitford Committee Report in 1977, fixation upon the foreignness of moral rights abated, and the focal point of the discourse began to shift to the question of international obligation. Likewise, the focus in Australia was slowly shifting away from the concerns about the foreignness of moral rights to debates about whether Australia was fulfilling its obligations to the international convention. At the 1979 Symposium on Moral Rights, the issue of foreignness was raised as a way of positively illustrating how moral rights had achieved a significant history in civil law countries rather than ameliorating concerns about difference.[15]
Likewise, in 1983 the Martin and Bick Report[16] commissioned by the Australia Council did not acknowledge the concerns about the foreignness of moral rights, as ‘moral rights [had] a certain universal quality.’[17] In any event, Martin and Bick were keen to highlight that in other jurisdictions, moral rights had been tailored to suit the individual needs of each country, and that the same approach should be taken in Australia.[18]
It was in the late 1980s, during the Copyright Law Review Committee process, that the foreignness of moral rights made a resurgence in official government debates. Despite the enactment of the Australia Acts 1986, newfound independence, and the opportunity to open Australian law to a world of legal concepts, Australia continued to maintain deference to English law and precedent.[19] Even though the British Government was preparing to legislate on the issue of moral rights,[20] they had rejected the recommendations of the Whitford Committee to adopt the Netherlands model, and Australia seemed keen to follow suit.
The 1988 Copyright Law Review Committee report stated that, ‘the only basis on which the majority could be persuaded that legislation for the protection of moral rights should be enacted would be that Australia’s continuing membership of the Berne Convention so requires.’[21] However, the issue of foreignness very much dominated the majority members’ decision to reject moral rights:
The majority considers that proponents have underestimated the ‘foreignness’ of the moral rights concept to those used to a common law system... Laws which impose limitations on a person’s use of his or her personal tangible property that are based upon another individual’s perception of interest in that property are alien to our legal system.[22] [emphasis added]
Only one submission to the Copyright Law Review Committee rejected moral rights on the basis of their foreignness, that of Tony Short, Senior Lecturer in Law, South Australian Institute of Technology, who said,
As a common lawyer I reject the notion of Moral Rights legislation based on Civil Law as alien to our whole concept of law. It is a concept which is totally at variants with the concepts of Australian Common Law and Equity [sic].[23]
However, minority members also subscribed to the notion of foreignness: ‘Moral rights are a civil law concept well understood and entrenched in the legal systems of most civil law countries.’[24] While the minority view acquiesced that the foreignness of moral rights may be a dilemma, there was a genuine attempt to foil the perception that the alien nature of moral rights was an impossible obstacle:
Moral rights should not be thought of as always having belonged easily to European notions of law. Before moral rights were integrated into European law they were considered totally antithetical to the buyers’ rights as absolute concept.[25]
Minority members were frank in expressing their concerns that the alien nature of moral rights meant that they sat uncomfortably with provisions of the Copyright Act, and that in practice there may have been difficulties of comprehension.[26] While it was obvious that the minority supported the introduction of moral rights, their focus on the foreignness of the concept did little to dispel the long-held belief that moral rights were inherently foreign to common law.[27] It was a curious fixation given that at first, the minority acknowledged that common law countries such as Canada and the United Kingdom were ‘embrace(ing) the concept that law protecting the copyright of authors will not be complete unless it confers rights which protect not only the authors’ economic interests, but also confers rights which recognise and preserve his or her personality,’[28] and that they were also preoccupied with moral rights being an international obligation.[29] Paradoxically, the use of the right of integrity unanimously conferred legitimacy to what was essentially derived from French law, rather than sourced in international law or other common law countries.[30]
Academic criticism of the way the government was managing the issue of moral rights began in the late 1980s. David Vaver, in a critique of the Copyright Law Review Committee report, expressed his belief that the majority’s view on foreignness was ‘nothing more than astonishing.’[31] His criticism was fourfold. First, given that Sir William Harrison Moore had been instrumental in the redrafting of Article 6 bis in 1928, and there had been no repudiation by common law countries at subsequent Berne conferences, moral rights were not alien or foreign to common law systems. Second, given that government representatives had repeatedly argued that legislative protection was unnecessary because moral rights were already protected by existing common law principles, the argument that moral rights were alien was fallacious.[32] Third, Vaver argued that copyright itself was alien to the common law system because ‘it needed legislation to set [it] up...since it was settled long ago that copyright in published works did not exist at common law.’[33] Vaver suggested that the majority failed to consider the mechanisms which recognised moral rights as part of the law of the land.[34] Finally, Vaver provided numerous examples of how other common law countries such as Canada, the United States and the United Kingdom had successfully legislated to protect moral rights.[35] For Vaver, the use of foreignness as a basis upon which to deny moral rights was spurious and weak: ‘In truth, in the sense that the majority seems to use the term “alien” or “foreign”, moral rights are foreign to any legal system.’[36]
Even without Vaver’s criticism, it is surprising that the issue of foreignness was actually revisited at all in the 1988 Report. In a major overhaul of the copyright system, the British Government introduced the Copyright, Designs and Patents Act 1988 (UK), introducing moral rights protection into British law. This introduction came following the 1977 report of the Whitford Committee, which recommended that moral rights should be afforded more protection under British law, based largely on the international obligations created by the Berne Convention.[37]
Given Australia’s loyalty to Britain, it was strange that foreignness arose as an issue for the entire Committee. But as there has never been an open debate about whether or not moral rights were actually foreign, and given Australia’s involvement in the drafting of Article 6 bis, it was an easy argument to make given the origins. However pedestrian the argument seems now, particularly in light of Vaver’s refutation, it is my contention that the focus on the foreign nature of moral rights dominated the discourse and acted as a barrier to the inclusion of moral rights in Australian jurisprudence for more than 60 years.
Despite the Copyright Law Review Committee’s emphasis on the foreignness of moral rights, the arguments based solely on foreignness all but disappeared from moral rights debates after 1988. While some academic commentators bought into the foreignness debate on occasions, it was not used as the focus for discussion in any official sense after the 1988 Copyright Law Review Committee Report. This coincided with the introduction of moral rights into the Copyright and Designs and Patents Act 1988, and essentially heralds the beginning of the end of moral rights as foreign to Australian law.
However, some academic commentators continued to contest the introduction of moral rights on the basis of foreignness. At the 1989 seminar at Griffith University, Jon Baumgarten, an American intellectual property lawyer, used this as an argument in his strident anti-moral rights paper:
The moral rights doctrine is at least in tension, if not in conflict, with the essential values of our system. Whatever may be the route of continental copyright doctrine or droit d’auteur, the Anglo-American intellectual property system is designed to encourage aesthetic innovation and promote dissemination of creative works. It complements the principles of free literary and artistic expression.[38]
The premise of Baumgarten’s argument was that moral rights are not capable of transplantation into a common law copyright system because ‘their development is rooted in a continental view of authors and their creation that is fundamentally at odds with the purpose of the United States copyright system.’[39] While it was the perceived economic impact of moral rights that concerned Baumgarten, he based his argument on the perception that as moral rights belonged to civil law countries they were foreign to common law countries.
In a quest to present moral rights in a positive light, Ginsburg alluded to the issue of common law fit when she argued that ‘an effort should be made to understand moral rights on our copyright terms.’[40] This way of conceptualising moral rights was also adopted by Dworkin, who attempted to absolve the parochial common law way of thinking as a fault of misconception rather than viewing moral rights as an alien philosophical concept.[41] The use of the foreignness of moral rights as the basis of an argument became less prevalent as commentators took up a normative position, arguing that Australia was in breach of international obligations because of the failure to enact specific legislation to protect moral rights.[42] The debate then quickly shifted into a discourse on international obligation.
While the question of international obligation had persisted in the background of moral rights discourse since 1928, it was not until the late 1970s that commentators started writing normatively about the international obligations created by the Berne Convention. Discourse then became preoccupied with fulfilling international obligation by enacting legislation. This focus perpetuated the first era of moral rights (1928–1989) when discussions were firmly based around the question of whether moral rights should be introduced at all. However, international obligations had considerable influence on the shape of moral rights, particularly in the scope and range of rights included in the final legislation. The Berne Convention limited moral rights to the right of attribution and the right of integrity, and the Australian government chose to limit the rights to precisely those, rather than consider the introduction of other moral rights of withdrawal and divulgation. It is my contention that the fixation with international obligation sidelined debates about a germane moral rights regime, which may have responded more appropriately to the nuances of Australian artistic and literary life than the current regime, particularly in relation to Indigenous artists.
The focus on international obligation began as a justification of tacit protection. The first defense for international obligation came in the 1928 Report by Sir William Harrison Moore, who, in his address to Parliament, attempted to explain his predicament with the original proposal for Article 6 bis:
Even where the particular interests to be protected were specified, the enumeration was in so abstract a form as to present to us difficulties in seeing what legislation would be necessary to satisfy the obligation undertaken, and as according to our practice a convention is not ratified until our Government is satisfied that the law provides for carrying out the international obligation, the effect of any such articles in the Convention would have seriously embarrassed ratification by countries within the Empire.[43]
Meanwhile, the Spicer Committee determination contained only indirect reference to international law. For example, the Spicer Report Committee’s recommendations stated:
We do not consider that any further protection for artists 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.[44]
The statement ‘further protection’ indicated that the Committee was concerned about the obligations created by the Berne Convention, enunciated again when the Committee recommended that Australia accede to the Brussels Act of the Berne Convention, and also become a member of the Universal Copyright Convention.[45]
It is not surprising that the notion of international obligation started to dominate debates after this time. Australia had allowed what has been described as an ‘embarrassing interlude’[46] in its adoption of relevant international copyright protocols until the late 1960s. Up until this time, it had been possible for Australia to comply with international obligations created at home without any further legislative changes:
Although Article 6 bis contains no specific reference to it, it has been accepted from the start that Union countries are not obliged to protect moral rights as part of their copyright laws. This was the historic compromise which enabled the inclusion of moral rights in the first place in Rome in 1928, and was confirmed at the time of the Stockholm Conference in the general report of the Main Committee I.[47]
Even though ‘extensive amendments to domestic law were required in order to accede to the Brussels Act,’[48] it took another 20 years before those changes were incorporated into the Copyright Act 1968.
The focus on international obligation intensified once the Copyright Act 1968 was enacted, as the ‘first full exercise of the Commonwealth Parliament’s power to legislate with respect to copyright.’[49] According to Ricketson, ‘a good indication of a country’s independent status in the world is often to be found in the state of its international obligations,’[50] and given Australia now had ‘a truly Indigenous legislative product in the prolixity and complexity of its drafting,’[51] which fulfilled most of the obligations imposed by the Brussels Act, Australia was finally reaching maturity.
However, in 1979, at the National Symposium on Moral Rights, Peter Banki said that he believed Australia was in breach of its international convention by not legislatively recognising the moral rights mentioned in Article 6 bis.[52] This assertion was implicitly taken up in the 1983 Martin and Bick Report, which supported the view that the international convention should cast the moral rights mould for Australian law:
The Berne Convention seeks to protect two rights: The right of authorship and the right of integrity. For both practical and legal reasons, this represents, in our view, not only the minimum obligatory protection for Australia, but also the full scope that moral rights legislation will cover.[53]
The theme of international obligation continued throughout the 1980s and made an appearance in the 1988 Copyright Law Review Committee Report. Despite suggesting that a valid basis for introducing moral rights was Australia’s obligations as a signatory to the Berne Convention,[54] the majority decided that as there had been ‘no criticism at an international level of Australia’s present position,’[55] moral rights should not be introduced. In contrast to this, the minority view was that ‘legislation [was] necessary in order to give effect to Australia’s treaty obligations.’[56] In any event, both the majority and the minority agreed that any discussions about moral rights should be limited to the two rights defined by Article 6 bis, the right of integrity and the right of attribution.
The 1988 Copyright Law Review Committee decision was widely criticised, and Australian critics started to focus on whether or not Australia was in breach of its international obligations. Ardent critics of Australia’s position were two eminent intellectual property scholars, Professor Sam Ricketson and Professor James Crawford. Ricketson criticised Australia’s tardiness on fully implementing moral rights legislation to comply with Berne, premised on two bases. First, he argued that traditionally non-proprietary and non-economic rights were not protected by copyright law,[57] thus moral rights would be an aberration to a common law way of thinking. Second, he argued that moral rights had always been seen to be adequately protected under existing domestic law.[58] Ricketson essentially argued that moral rights were not adequately protected under Australian law, and that Australia had an international obligation to protect moral rights.[59] Similarly, Crawford also argued that it was ‘mandatory’ for Australia, as a party to Berne, to implement Article 6 bis.[60]
These arguments prompted a run of works which relied on the normative position taken by Ricketson and Crawford on fulfilling international obligations.[61] However, when moral rights were finally placed on the agenda for legislative reform, very few authors proposed broadening the scope beyond Article 6 bis.[62] Some authors, such as Abrahams and Blain, challenged the assumption, albeit briefly, that Article 6 bis was the paradigm.[63]
Commentary of this nature never developed into cogent debate, and became overwhelmed by arguments which were economic in nature. Discourse started to focus more upon the economic impact of a moral rights regime in more detail, and there was a definite shift into the second era of moral rights thinking (1990–2000), where there was a move away from the question of whether moral rights should be introduced, to a question of what form they should take.
The focus on economic impact is related to the assumption that the introduction of a moral rights regime would be contained within the Copyright Act, which predominantly addresses economic interests.[64] The ‘commodification of the copyright interest in works protected by copyright has been one of the foundations of the power of the media and entertainment sector,’[65] both of which are prominent in the moral rights discourse.
While the theme of international obligation had a fundamental impact upon the scope of the debate about which moral rights should be introduced, this line of debate impacted most notably upon the outcome of the regime, particularly in weakening the position of the author or artist holding the moral rights. As debates were dominated by very powerful stakeholders, including the film and television industries,[66] deliberations about significant and critical nuances in the proposed moral rights regime were sidelined because of an almost hysterical fear that moral rights would hijack the artistic, literary and cinematographic fields.[67]
Concern about the economic impact of moral rights started as early as the 1928 Rome Conference. Delegates reassured their respective governments that, despite the changes at an international level, the status quo could be maintained on the domestic front, particularly in relation to contract and copyright. Sir William Harrison Moore pre-empted Australian concerns about the economic impact in his address to Parliament.[68] However, as the focus was on the foreignness of moral rights, and later on the international obligations created by Article 6 bis, concern about the economic impact of moral rights was only peripheral at this time.
In 1959, the Spicer Committee expressed no real concern about their economic impact, but in rejecting moral rights on the basis that they were already adequately protected, they demonstrated their belief in the sanctity of commercial relationships such as contracts, placing economic issues central to their considerations:
We do not consider that any further protection for artists 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 actions for defamation is more appropriate than any statutory cause of action which might be enacted in a Copyright Act.[69]
This approach was consistent with the decision made by the influential Gregory Committee in the United Kingdom, a few years prior to the Spicer Committee.[70] In 1977, the Whitford Committee also acknowledged the economic impact of moral rights, expressing concern that the introduction of a long-term right of integrity might create economic complications for artists such as film-makers, particularly by the heirs of authors. Secondly, in situations where there are multiple authors, for example design teams, it may be difficult to acknowledge authorship.[71] It was at this stage that the Committee proposed alternatives for opting out of the rigidity of absolute protection by suggesting that in some instances artists may waive their moral rights, and if not, some acts may be reasonable under the circumstances. Variations of these suggestions are now contained in Australian legislation.
At the 1979 National Symposium on Moral Rights, the economic concerns of a moral rights regime featured prominently in the debate. Discussion focused on the bargaining power of stakeholders in the arts industry, such as film companies, actors and artists. Some participants, such as Peter Martin, then a full-time Commissioner of the Australian Film Commission, argued that moral rights would aid in ‘strengthening the contractual bargaining position of artists.’[72] Indeed, artists like Robyn Archer explained their precarious position: ‘The whole thing is based on subservience... if you fight, you are considered a troublemaker and your artistic life is at great risk.’[73]
There was also an identified need to consolidate what moral rights were actually about, because the system at that time was too unwieldy and unpredictable.[74] Attempts were therefore made to ameliorate the concern raised by opponents of moral rights:
I don’t believe that the acceptance of moral rights in countries like France has stopped them from producing great films. I don’t think that, in reality, they have any greater difficulty making films than we do.[75]
While the Symposium was considered a success in generating public debate about moral rights, some participants were concerned that the debates were often sidetracked.[76] For example, sculptor Michael Meszaros suggested that economic imperatives were dominating the debates:
I think we should try, theoretically at least, to divorce considerations of money from principles. Everywhere we look, the problem of money come [sic] up: compensation, redresses, injunctions – everything is decided in terms of money. But money will only confuse those basic principles.[77]
In the 1983 Martin and Bick Report, the question of economic impact remained in the background. However, the authors of the Report did acknowledge that there was a problem with relying upon existing laws to protect creators from inappropriate behaviour by users because of the inequality of bargaining power between creators and users of the work.[78] The Report presented an even and open discussion about the pros and cons of a moral rights regime, and concluded that the rights of authorship and integrity should be introduced in legislation to protect artists’ moral rights in Australia, and that moral rights legislation should form a discrete statute rather than part of the Copyright Act.
The recommendation that moral rights legislation should form a discrete statute demonstrated the Report’s concern that the public did not trust the moral rights regime’s association with the economic right of copyright.[79] In fact, Martin and Bick devoted a great deal of discussion to the importance of community education about moral rights in an attempt to dispel concerns about the economic impact in the artistic, literary and musical world.[80] However, the concern about public perception raised in the Report was laid aside in future investigations, and concerns about economic impact began to take centre stage.
At the Australia Council seminar series in 1984, concerns about the economic impact of moral rights continued to be aired, including the issue of waiver. It was during this time that the economic impact of moral rights became more important as it appeared that moral rights were on the agenda. However, it was the 1988 Copyright Law Review Committee Report that really brought the debates about the economic impact of moral rights into the public domain, and this theme dominated the concerns of both the majority and minority committees. The decision by the minority committee to recommend that a moral rights regime should be included in the Copyright Act encapsulated the direction the debates would take. There was a great deal of discussion about the economic impact in submissions made to the Committee,[81] and some organisations were concerned about the effect that moral rights would have on the way businesses or industries operated.[82] Other organisations couched the issue in terms of the benefit for the artist:
It may be to a creator’s economic advantage to have his or her work attributed and protected from distortion or mutilation. To be specific, the rights of attribution and integrity could enhance the creator’s reputation and thus work to his or her economic advantage. Infringement of the rights could have the opposite effect.[83]
There was a good deal of support for the waiver of moral rights.[84] Some organisations were concerned about the inequality of bargaining power that waiver clauses would perpetuate,[85] while others expressed a general concern about waiver but did not elaborate.[86] There was also a great deal of support for an education campaign to provide further information and opportunity for debate about the issues.[87] One submission raised concerns that any proposed moral rights legislation would meet with fierce resistance from powerful stakeholders such as the film industry, publishers and record companies, because of the ‘deep-rooted commercial interests that are seemingly threatened by moral rights legislation.’[88]
The Committee majority relied upon the argument about the power of the artist to contractually protect their interests.[89] However, this argument was heavily criticised on the basis that it was ‘unrealistic owing to the limited bargaining position of artists, especially when they are not well known or partially successful.’[90] This argument about the vulnerability of artists in a commercial context countered the other side for much of the debate.[91]
While delivering a scathing criticism of the decision of the Copyright Law Review Committee, commentator David Vaver provided insight into how he conceptualised moral rights regimes as economic. Vaver believed that conceptualising moral rights from an economic perspective was ‘more plausible than those dealing with the metaphysical or idealistic notions of artists and art.’[92] He believed that the public has a right to know the veracity of the authorship of a work and to receive the work in the intended form, therefore moral rights were akin to trademarks. This argument suggested that a failure to protect consumers on this basis may facilitate a market which misleads the art consumer.[93] The corollary of this is that the artist yields an economic benefit as well, by ‘gaining the due reward the market is willing to confer on his or her product.’[94] Vaver also recognised that moral rights may be used as a bargaining chip, particularly in those relationships where there is unequal bargaining power between an artist and commercial dealer.
Meanwhile, many opponents of moral rights presented similar arguments to that of Jon Baumgarten, who argued that moral rights have a deleterious economic impact, because they are antithetical to the ethos of copyright regimes such as Australia’s.[95] Banki suggested that the economic debate had been about copyright industries rather than moral rights,[96] and in many senses his argument is correct. Given the Government’s reluctance to move on the issue of moral rights, priorities were placed in areas where change was likely to happen quickly. However, the issue of economic impact became the focus of the moral rights debate, and this obscured many other discussions necessary to accomplish a regime that would successfully address the specific Australian circumstances.
It was at the 1989 seminar held at Griffith University on Moral and Pecuniary Rights that Baumgarten made his message clear – the foreign notion of moral rights did not fit within the Anglo economic paradigm of copyright law, because it did not even fit within their own countries:
It has been repeatedly suggested that the existence of successful copyright industries with strong moral rights traditions proves that moral rights are substantially benign... I would suggest, on the contrary, that the application of moral rights law abroad appears much more random and hence unpredictable than benign, and that the devices used in foreign countries to moderate the extent to which moral rights can interrupt, delay or prevent creative and entrepreneurial endeavour simply cannot be reliably exported to the United States. Whether they can be exported to Australia is a matter I will leave for you to conclude.[97]
This was a long-held position of Baumgarten, who was vehemently opposed to the moral rights regime in the United States on the basis of the economic impact on the information and entertainment industry.[98] In particular, he argued that moral rights stifled creativity and the dissemination of creative works, the very bases upon which he believed the Anglo-American copyright system rested.[99] While some commentators emphasised the differences between pure economic regimes such as copyright, and the moral rights regime, their voices were overwhelmed in the cacophony of discussion about the economic impact of moral rights, and the issue dominated almost all of the debates after the draft Bill was introduced, and continued to dominate moral rights discourse post-legislation.[100]
Once the government announced its intention to introduce moral rights in 1994, film organisations started intense lobbying about the economic impact of moral rights on the film industry.[101] This anti-moral rights campaign was challenged by intellectual property lawyer Michael Frankel, who attempted to refute the belief that moral rights would bring the film industry to a grinding halt.[102] Frankel attempted to outline the international experience with moral rights, demonstrating how those moral rights regimes operated effectively, and the legal and financial complexities of making a film. In doing so, he reiterated the sources of power within the industry itself, particularly in relation to bargaining power:
moral rights [would] not change the fundamental economic relationships between the parties. Moral rights [would], however, cause people to focus more carefully on how they enter into relationships by setting the limits of interference by one party to another.[103]
While most of the debates following the 1994 Discussion Paper were on the economic impact of moral rights, these debates differed on the meaning of ‘economic impact.’[104] Many of the discussions centred around the positive and negative aspects of waiver,[105] and this inevitably lead to discussions about who really held the bargaining power in commercial relationships.[106] One argument that kept re-emerging was that the ulterior motive of moral rights’ proponents was to shift the balance of bargaining power from the users of the materials to the artists and authors.[107] This issue had been raised in the 1988 Copyright Law Review Committee report and confirmed by Brett Cottle, who had formed part of the majority in his contribution to the 1989 Griffith University seminar:
‘Would you mind if someone fooled around with your best work for a hundred thousand dollars?’ If they are honest they will usually answer: ‘No, I would not mind, everything has its price’... That to me places a further question mark on the philosophical basis said to underpin the rights in question.[108]
The lack of submissions from artists and authors precipitated Cottle to believe that the economic impact of moral rights outweighed the community need, and that any issues raised before the Committee could have been dealt with by contract law.[109] Indeed, he argued that even if the bargaining power of the creator was strengthened as an incidental consequence of the moral rights regime, this had negative effects and did not outweigh the economic problems it created.[110]
In June 1997, the Coalition Government introduced the Copyright Amendment Bill. The moral rights provisions were sent to the Senate Legal and Constitutional Legislation Committee for further inquiry, particularly on the detailed application of the proposed moral rights legislation, and who should be entitled to moral rights in relation to cinematograph films.[111] The Committee invited stakeholders, including relevant arts organisations, film industry bodies, and government departments, to make submissions. Given the amount of interest in the lead up to the Bill, it was not surprising that there was a large number of submissions, and given the type of interest registered prior to the Bill, that those submissions were predominantly about the economic impact of the new regime.[112]
While the submissions varied in substance, they commonly held concerns about the economic impact of moral rights. The concerns that elicited the majority of responses were on the application of waiver and consent provisions, the question of retrospectivity and the duration of moral rights, and the question of who should be deemed the author of a film for the purposes of the Act. The majority of the submissions entering the debate about the subject were concerned about the economic impact that any decision about authorship would have on the film industry, rather than redefining the notion of authorship for the purposes of moral rights legislation. For example, the Australian Children’s Television Foundation raised the following concerns:
The potential detrimental impact of aspects of this legislation on the capacity of independent producers of film and television to finance projects, successfully produce them, and subsequently manage their release on the national and international market should not be underestimated.[113]
Specific concerns were also raised by organisations such as the Screen Producers Association of Australia, who expressed opposition to the introduction of moral rights for cinematograph film, while recognising ‘the inevitability of moral rights amendments,’ and concerned that any legislation be ‘practicable and workable.’[114] This desire for a workable scheme came hand in hand with the proposal of waiver provisions, which proved hugely controversial. In order to mitigate some of the anxiety associated with the waiver provisions, the Government representative, Chris Cresswell, explained that,
The provisions on waiver are a compromise...between...on the one hand, individual creators, notably the screenwriters and others of a like mind who are opposed to any statutory provision for waiver and, on the other hand, the producers, the large-scale users of copyright who want very extensive waiver provisions. The government... decided that a fair compromise was to make some statutory provision for waiver. But, in deference to the individual creators so that they were not too easily able to be overborne, as it were, in their contracts with producer organisations, the decision was taken not to make the statutory waiver extend to unspecified future works.[115]
Support for the waiver provisions came from a variety of sources, all of whom focused upon the importance of waiver to ameliorate the economic impact of the proposed moral rights regime on their respective industries. For example, the submission of the Federation of Australian Commercial Television Stations stated that a regime without waiver provisions ‘potentially threaten[ed] the necessary final control of the producer over the film and the ability of the producer to deliver the film on time and within budget.’[116] A number of organisations also raised concerns about the use of waiver provisions with employees.[117] In the submission of the Screen Producers Association of Australia, proposed section 195AZG was criticised because it would mean that an employee would retain moral rights in respect of future works. This was, according to SPAA, ‘a departure from accepted employment and copyright norms, and adds to the uncertainty associated with the moral rights scheme.’[118]
Similarly, the Australian Broadcasting Corporation did not agree that moral rights should be vested in the employee when the economic rights in a copyright work would vest with the employer, believing that employees ‘should not be in a position to prevent an employer from fully exploiting material, the copyright of which vests in the employer.’[119] These issues, with the use of waiver provisions in the course of employment, were also raised by the NSW Bar Association.[120]
There was also a certain amount of concern expressed by film, television and advertising organisations that the waiver provisions needed to be amended to minimise uncertainty within the industries, and to reduce the risk of an administratively and financially burdensome regime. There were two main concerns. Firstly, that the proposed section 195AZG(2) provided that waivers may only be given in relation to existing works and not in advance of the work being created.[121] Secondly, the proposed section 195AZG(3) allowed an employee to waive moral rights in advance in respect of works to be created in the course of employment. This, of course, would have been of minimal assistance to a freelance author.
The Federation of Australian Commercial Television Stations cautioned that broadcasters and film producers needed reassurance that they would be able to obtain a waiver of moral rights for future works from creative contributors to film-making engaged under contracts of service, particularly for feature films and television drama programs[.] Likewise, the submission of the Screen Producers Associations of Australia suggested that the proposed waiver provisions did not appreciate the nature of employment contracts in the film and television industries.[123] The concern was that to ensure continued financing, the industries needed to be able to instil confidence in investors about the environment in which they were investing.
In a similar argument, organisations such as advertising agencies argued that the waiver provisions in the proposed form would be administratively burdensome, and disadvantage the advertising industry. In contrast, opponents of the moral rights regime, such as film and television organisations, were generally supportive of a moral rights regime – but not for their industries. For example, the submission of the Advertising Federation of Australia started a debate about distinguishing between ‘pure art’ on the one hand, and ‘commercial art’ used in advertising on the other. The AFA argued that in the case of ‘pure art’ moral rights should apply, because the work was worthy of protection, but in the case of ‘commercial art’ the waiver provisions included in the Bill would create substantial difficulties in the advertising industry, including an ‘enormous burden of additional and unnecessary paperwork and costs, and the potential for freelancers to hold their advertising agency employers to ransom, by asserting their moral rights on a minor issue, after the work is completed.’[124]
The concern of the AFA was that the proposed section 195AZG(2) would make universal practice in the advertising industry impossible. They would have to change their way of doing things from commissioning a work and doing what they wanted, to separately and subsequently, once the work was in existence, entering into further agreements in relation to moral rights, should that be necessary, and creating ‘uncertainty.’ This view was supported by the submission of the Australian Association of National Advertisers:
AANA submits that the moral rights provisions of the Copyright Amendment Bill 1997 will significantly restrict the rights of advertisers to use advertisements in which they own intellectual property rights. This restriction is unacceptable in the context of a commercial transaction between business people for purchase of an advertisement and related services. AANA further submits that attribution of authorship of advertisements in many instances would be prohibitively expensive and would not be practical. [125]
The distinction between moral rights for creators of pure art and works of a commercial nature such as advertisements was refuted by the Australian Copyright Council, who maintained that there was no need for a special exclusion for advertising material. In addition, the ACC explained that it would be difficult to bring a successful action for infringement of moral rights in a ‘non-artistic’ commercial work, especially in those circumstances where the work had been created to a client’s specifications.[126] The Committee sought advice from the Attorney-General’s Department on the appropriateness of making the distinction between pure art and commercial art. Helen Daniels from the A-G’s Department stated that,
The Copyright Act normally does not make any distinctions in relation to aesthetic quality of a work. The level of protection is the same whether the work is mundane, or a work of high art. The decision was made fairly early on that there would be no exceptions for the computer industry, the advertising industry, and publishers, because if you exempt one industry, then you have to look at others, as well.[127]
In the end, the Committee decided that it would be inappropriate to make a distinction between pure art and commercial art.
Meanwhile, many organisations supported the deletion of the waiver provisions altogether, for the reason that,
no sooner have rights been bestowed, authors will be under immediate pressure to relinquish them. The imbalance of power in the relationship between the people seeking the waiver provision and the people required to give it, in order to secure a job needs to be taken into account.[128]
Many of the arguments revolved around a concern about the unequal bargaining power between the creators of works and the economic agents, summarised by the Australian Copyright Council as follows:
We are concerned that it will become standard practice in some industries to require creators to give up the rights that Parliament has given them, thus defeating the purpose of the legislation. Creators are generally in an inferior bargaining position, and would thus be unable to resist the adoption of such standard practice...we have seen a number of contracts in which the author is required to waive moral rights, in anticipation of the Copyright Act amendments.[129]
The Australian Writers Guild also agreed that the waiver provisions effectively relinquished a creator’s rights for the future, and would have the effect of nullifying legislation intended to protect the rights of artists. This, they believed, would perpetuate the weak bargaining position of the creative principals of the film against the financial backers, because the former would be forced to waive their rights. The Guild also rejected the proposition that waiver provisions were essential to ensure the continued viability of cultural industries.[130] Many opponents of the waiver provisions also considered it redundant, given that a consent provision had been included in the Bill.
The Australian Copyright Council argued that the waiver provisions should be deleted, as the provisions relating to consent would provide an adequate defence.[131] The Australian Writers Guild supported this, as did Warwick Rothnie, Partner from Mallesons Stephen Jaques, who advised the Committee that there was no legal, philosophical or other theoretical distinction between ‘consent’ and ‘waiver.’ He argued that using the word ‘waiver’ was merely legal jargon for the word ‘consent,’ and said that retaining both terms would inevitably lead to ‘confusion, uncertainty and much greater legal expense.’ He therefore believed that proposed section 195AZG should be deleted from the Bill.[132] However, despite pressure from a number of film, television and advertising organisations who maintained that proposed section 195AZG(2) should be deleted, thereby allowing an author to waive moral rights in respect of future works,[133] the Committee chose the alternative view.
In making their decision, the Committee recommended that proposed section 195AZG(2) be amended to provide that a waiver may relate to a specific work, or to works of a specified description that were in existence, in progress, or about to be commenced.[134] The minority report of Senators Nick Bolkus, Jim McKiernan[135] and Lyn Allison[136] contradicted the Committee’s recommendations about waiver:
The Labor Members and the Australian Democrat Member of the Committee oppose the provisions of the Bill which would allow the waiver of or consent by authors or makers to future acts which may be inconsistent with their moral rights. The inclusion of such waiver or consent schemes would effectively allow the economically dominant partner in the creative process, principally but not exclusively the producer, to force directors and/or screenwriters to sign away their moral rights in a work.[137]
The minority wished to delete the waiver provisions from the Bill. In their place, the minority recommended, ‘that a consent regime be inserted into the Bill which would authorise future acts in relation to a work which were not inconsistent with the moral rights of the artist or maker.’[138]
Concern about the retrospectivity of the Act was also raised with the Committee, primarily because under the proposed sections 238(2) and 195AZL, moral rights would apply to an act of non-attribution, false attribution and distortion that occurred after Part IX had come into force, even if the relevant works were created beforehand. There were also certain obligations to remove misleading material if there was an act of false attribution prior to Part IX coming into force.[139] These concerns were purely economic. The submission by the Screen Producers Association stated:
The application of moral rights to works already in existence at the time of the legislation is passed will certainly create additional costs for producers and potentially affect the value of these works. The cost will come from the need to obtain waiver or consents to acts...prior to the commencement of the legislation. The impact on value will arise if waivers or consents cannot be obtained or there is uncertainty about whether they have been obtained.[140]
Similar concerns were also raised by the Australian Association of National Advertisers.[141] Chris Cresswell attempted to alleviate this concern by saying;
The legislation is not retrospective in that it does not attach liability to something done now which is not at present liable. If the legislation were truly retrospective, it would attach liability to something which, when it was done, did not attract liability. This legislation will only attach liability to acts done after the legislation commences... As a general proposition I think they [some witnesses] are concerned that they may have made a commercial undertaking with respect to a work now, in September 1997, when there are no moral rights. They are concerned that, because the moral rights regime will apply to existing works when the legislation comes into operation, this will upset the basis on which they went into the contractual arrangements in 1997. Our response to that would be that that applies to a whole range of activities that might be affected by government legislation which attaches new rights or liabilities to undertakings in the future. But this legislation will not make illegal, or infringing, actions that are being taken now before the legislation comes into operation.[142]
Consequently, the Committee recommended that Schedule 1 of the Bill would not apply to cinematographic films made before the introduction of legislation, or to literary, dramatic, musical or artistic works created by authors who died before the introduction of the rights.
Concerns were also raised about the duration of moral rights, because under the Bill, the proposed moral rights would endure for the copyright life of the work,[143] which would have an economic impact. This meant the life of the creator plus 50 years, or in the case of films, 50 years.[144] In an attempt to restrict the application of the right of integrity, the Screen Producers Association of Australia submitted that it should cease on the death of the author or maker. The argument was that this would keep it in line with defamation actions, which also ceased to be enforceable upon death, and are similarly concerned with honour and reputation. However, the SPAA submitted that the right of attribution should continue after the death of the author for the remainder of the term of copyright in the relevant work.[145] Nevertheless, the Committee, harking back to old arguments, left the provisions of the Bill as they were, believing them to be consistent with Australia’s obligations under the Berne Convention.
Both creator and producer stakeholders continued intense lobbying of the government after the Senate Committee’s Report had been handed down, and in July 1998 the government removed Schedule 1 of the Bill to allow for further consultation between the government and stakeholders.[146] The issue of waiver remained a primary point of contention, but some unanimity was reached in August 1998. This occurred as a result of a consultative forum organised by the Attorney-General’s Department, and the Department of Communications, Information Technology and the Arts. During that forum, the Australian Writers Guild offered a co-authorship agreement in return for the removal of waiver provisions in the legislation, which allowed collaborators on film or television productions to agree to limit their moral rights. At the end of the consultative forum, a working party was initiated that heralded the beginning of more cohesive negotiations over subsequent months between film and television industry groups.[147] The debate was now formally focused on the economic aspect of moral rights, and there was little, if any, discussion about any other aspect of the moral rights regime, despite the Janke’s Report on Indigenous Intellectual Property being released in the meantime.
During the negotiation periods, most of the discourse remained focused upon the economic impact of moral rights,[148] although some commentators issued a reminder that moral rights were distinct from economic concerns.[149] Support for the waiver provisions continued as a practical and realistic way of making the system work, but some commentators chose to challenge the waiver provisions as unfair because of the unequal bargaining power of stakeholders.[150] This ran contrary to some views that the introduction of a moral rights regime would actually enhance the economic position of creators, because they could be used as a bargaining chip.[151]
In the end, the matter was settled by industry participants, and in March 1999 the working party presented the negotiated proposal on waiver to the Attorney-General.[152] This proposal effectively meant that the waiver provisions were removed from the legislation, and co-authorship agreements were introduced. The effect of the agreements was essentially a covenant between the authors of a film to not exercise their moral rights without the consent of the other authors,[153] the perception being that the economic concerns about the instability of the regime had been ameliorated by such a covenant.
As a result of the discussions and proposals, the Copyright Amendment (Moral Rights) Bill 1999 (Cth) was introduced into the House of Representatives on 8 December 1999 by Attorney-General Darryl Williams. In doing so, he acknowledged that it was unlikely that the floodgates to litigation would be opened, negating industry panic about the economic impact:
Experience in other countries suggests – and the government envisages – 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.[154]
As discussed earlier, 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 and came into operation on that day.
The three themes of foreignness, international obligations and economic impact evolved historically in the moral rights discourse. While at times there has been some overlap between the themes, one of the themes has tended to be dominant at one time or another. The dominance of the particular themes has created two very distinct periods of debate. The first era, from 1928–1989, revolved around the question of whether Australia should introduce moral rights. During this time, from 1928 to the early 1970s, the theme of foreignness dominated the debates, and while still present, started to cede prominence to the second theme of international obligations. This second theme increased momentum, eventually becoming the focus of the discourse from the early 1980s. In the late 1980s, a new set of debates emerged about the practical implications of moral rights, which firmly focused upon their economic impact. It was during this time, in the second era from 1990–2000, that the question shifted to the form that moral rights should take. With so much attention focused on the three dominant themes, it is my contention that the fulcrum of a moral rights action, the subject (the author) and the object (the work) was, to a great extent sidelined and as a result came to be imagined and constructed in a narrow and limited way.[155] In providing a thematic account of the moral rights discourse, it is possible to have a better understanding about why the debates took their particular course and in particular how the original legislation failed to take into account the needs of many creators but in particular, Indigenous creators and their communities.[156] Reconceptualising the story of moral rights in Australia as the product of a specific discourse makes the resulting paradigm more understandable. As Gaddis suggests, the past is “no sure guide to predicting the future”,[157] but history is a signpost, and this history of moral rights is a signpost about the benefits of reflecting on how law and legal concepts are derived, imagined and constructed and what significance that has for the social, cultural and legal context in which that process takes place; “the image that the law has of its past plays an important role in shaping its present and its future”.[158]
[*] LLB (Hons), B. Com, PhD Research Consultant, former 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] Because it did not sit comfortably with common law contract and equity.
[2] 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 at 6.
[3] Ibid.
[4] Sam Ricketson, ‘Moral Rights and the Droit de Suite: International Conditions and the Australian Obligations’ (1990) 3 Entertainment Law Review 78, 79.
[5] Harrison Moore above n 2, 6.
[6] Ibid, 6.
[7] Ricketson, above n 4, 79.
[8] 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) at para 487, page 90.
[9] Bruce Kercher, An Unruly Child (1995), 175.
[10] First Meeting of the Copyright Law Review Committee held at Commonwealth Offices, Melbourne, 1958, 10am, 8 October 1958, 1–3, NAA: A432/80, 58/2338 at 1. Note also that ‘all members of the committee were of the view that, in hearing oral representations, the Committee should not, as a general rule, sit in public. However, it was recognised that public controversy about particular matters might justify public sittings’ at 2.
[11] Board of Trade, Copyright Committee Report of the Copyright Committee, (1952) HMSO: Cmd.8662, para 219, 80.
[12] J.A Spicer, A. Dean, G.A Ferguson, P. Jones, A.J. Moir, and L.R. Zines, (1959). Meeting of the Copyright Law Review Committee held at the Commonwealth Industrial Court, Melbourne at 10.30am on 16th June, 1959, NAA: A432/80, 59/2019.
[13] Department of Trade, Committee on Copyright and DesignsCopyright and designs law: report of the Committee to consider the law of copyright and designs (1977) HMSO: Cmnd. 6732, paras 51–57. Hereafter referred to as the Whitford Committee Report.
[14] In particular at 25 Netherlands Copyright Act 1912–1972.
[15] Peter Banki, 'Moral Rights – An Author’s First Responsibility' (1979) in Australia Council, National Symposium on Moral Rights 27.
[16] Sylvia Martin and Paul Bick, Moral Rights for Artists: A Report Prepared for the Australia Council (1983).
[17] Ibid.
[18] Ibid, 12 and 51.
[19] Kercher, above n 9, 188.
[20] See Reform of the law relating to copyright, designs and performers’ protection: a consultative document, HMSO: Cmnd. 8302, Chapter 18 (known as the 1981 Green Paper), Her Majesty’s Government (1983) Intellectual property rights and innovation, (Green Paper), HMSO: Cmnd.9117 and Department of Trade and Industry (1986) Intellectual property and innovation, (White Paper), HMSO: Cmnd.9712.
[21] Copyright Law Review Committee, Report on Moral Right, (1988), 11.
[22] Ibid, 27.
[23] Individual (1984). Submission to Copyright Law Review Committee on Moral Rights, July 1984, BAD 85/318.
[24] Copyright Law Review Committee, above n 21, 39.
[25] Ibid, 75.
[26] Ibid, 76.
[27] Ibid, 50, 52–53.
[28] Ibid, 36.
[29] Ibid, 50–54.
[30] See Adolf Dietz, ‘The Artist’s Right of Integrity under Copyright Law – A Comparative Approach’ (1994) 25 International Review of Industrial Property and Copyright Law 177.
[31] 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, 291–293.
[32] Ibid, 291.
[33] Ibid,
[34] Ibid, 291–293.
[35] Ibid, 292–293.
[36] Ibid, 293.
[37] Department of Trade Committee on Copyright and Designs, Copyright and designs law: report of the Committee to consider the law of copyright and designs; (1977) HMSO: Cmnd. 6732; see also Her Majesty’s Government (1983) Intellectual property rights and innovation (Green Paper), HMSO: Cmnd.9117.
[38] Jon Baumgarten, ‘On the case against moral rights,’ (1992) In Moral Rights Protection in a Copyright System Peter Anderson and David Saunders (eds) 87, 91.
[39] Jon Baumgarten, Robert Gorman and Christopher Meyer, ‘Preserving the genius of the system,’ (1990) 8(3) Copyright Reporter 1, 20.
[40] Jane Ginsburg, ‘Moral Rights in a Common Law System,’ (1992) In Moral Rights Protection in a Copyright System in Peter Anderson and David Saunders(eds) 13–50, 15.
[41] Gerald Dworkin, ‘Moral rights and the common law countries’ (1994) 5(1)Australian Intellectual Property Journal 5, 5.
[42] It was mentioned rather than focused on see Elizabeth Adeney, ‘The moral right of integrity of authorship: a comparative view of Australia’s proposals to date,’ (1998) 9 Australian Intellectual Property Journal 179, 199.
[43] Harrison Moore, above n 2, 6.
[44] Commonwealth of Australia, above n 8, 90.
[45] Ibid, paras 29–52, Statement by the Attorney-General, The Honourable B. M. Snedden,, Copyright Law Revision, NAA: A432, 1958/2370 PT 1, Confidential Cabinet Submission Revision of Copyright Law,, NAA: A432, 1958/2370 PT 1.
[46] G. Sawyer, ‘Australia-Embarrassing Interlude’ (1964) 11 Bulletin of the Copyright Society of the USA 313.
[47] Ricketson, above n 4, 82.
[48] The Act came into operation on 1 May 1969. Sam Ricketson (ed.) Australia and International Copyright Protection (1989a); Sam Ricketson ‘Australia and International Copyright Protection,’ In The Emergence of Australian Law (1989b) Manfred Ellinghaus, Adrian Bradbook. and A.J. Duggan (eds) 144, 170. The Act came into operation on 1 May 1969.
[49] Sam Ricketson, (1989a) above n 48, 171.
[50] Ibid.
[51] Ibid, 171.
[52] Australia Council, National Symposium on Moral Rights 29–30 November (1979) Report on Proceedings, 16.
[53] Martin and Bick, above n 16, 18.
[54] See discussion of this ibid at 11.
[55] Copyright Law Review Committee, above n 21, 11.
[56] Ibid at 35.
[57] 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; Ricketson, above n 4, 78.
[58] The position of the majority in 1988.
[59] Ricketson, above n 4.
[60] And in doing so refers to article 11 bis(2) to verify his assertion of the obligatory nature of the provision.
[61] See Michael Weir, 'The Story of Moral Rights or the Moral to the Story?' (1992) 3 Australian Intellectual Property Law Journal 232; See also Elizabeth Adeney, ‘Moral Right/Statutory Licence: The Notion of Debasement in Australian Copyright Law’ (1998) 9 Australian Intellectual Property Journal, 21.
[62] For example, authors such as Weir assumed it was just so – see Moana Weir, ‘The Parodist’s Nirvana: Droit Moral and Comparative Copyright Law: Part Two’ (1994) 6 Arts and Entertainment Law Review 81, Moana Weir, ‘The Parodist’s Nirvana: Droit Moral and Comparative Copyright Law: Part One’ (1994) 4 Arts and Entertainment Law Review 49.
[63] ` In fact, all Abrahams says is ‘However, it is submitted that Article 6 bis itself is not adequate’ – Damian Abrahams, ‘Moral rights: the UK model for Australia?’ (1994) 2 Arts and Entertainment Law Review 21. See also Georgia Blain, ‘Government’s moral rights proposals’ (1994) 12 Copyright Reporter 1.
[64] This also helps to explain why debates about the subject and the object were sidelined.
[65] Fiona Macmillan, ‘Copyright and Culture: A Perspective on Corporate Power’ (1998) 3 Media and Arts Law Review 7, 81 for the US context, see Baumgarten, Gorman and Meyer,above n 39.
[66] The power exercised by media and entertainment conglomerates is discussed in the article by Macmillan, above n 69; Delia Browne, ‘Desperately seeking ‘moral rights’: where are they?’ (1999) 4 Media and Arts Law Review 105, 105–107.
[67] This observation that debates have been obscured by these arguments was mentioned by Gettens, but as yet, no other authors have discussed this in any detail – see Karen Gettens, ‘New Australian Copyright Laws’ (1998) 9 Entertainment Law Review 326.
[68] Harrison Moore, above n 2, 6.
[69] Commonwealth of Australia, above n 8, 90, paras 487–490.
[70] Board of Trade, above n 11, paras 219–226.
[71] See Dworkin, above n 41, 13.
[72] See discussion by Richard Meale in Australia Council National Symposium on Moral Rights 29-30 November (1979) Report on Proceedings 72–74.
[73] Australia Council, above n 52, 64. See also Nathan Waks, Musician, 69, Tom Keneally, author, 70, Alan Horton, Librarian, 71–73, David Catterns, McCullough, 85, 95, Conygham, 83.
[74] Ibid,61.
[75] Waks, ibid, 93.
[76] Alan Horton, University Librarian, University of New South Wales,ibid, 71.
[77] Michael Meszaros, ibid, 60–61.
[78] Martin and Bick, above n 16, 80–90.
[79] See discussion at ibid, 97–98.
[80] Ibid, 106–114.
[81] City Council (1985). Submission on Moral Rights to Copyright Law Review Committee, September, NAA: 85/12693, Organisation (1985). Submission on Moral Rights to Copyright Law Review Committee, October 1985, NAA: 85/12693. Organisation (1985). Submission on Moral Rights to Copyright Law Review Committee, December, 85/12693. City Council (1985). Submission on Moral Rights to Copyright Law Review Committee, December, NAA: 85/12693, Newspaper Organisation (1986). Submission to the Copyright Law Review Committee on Moral Rights, NAA: BAD85/15221, Submission to Copyright Law Review Committee on Moral Rights, July 1984.
[82] Government Organisation (1985). Submission to the Copyright Law Review Committee Report on Moral Rights, NAA: B85/12963, City Council (1986). Submission on Moral Rights to Copyright Law Review Committee, January, 85/12693, Submission to the Copyright Law Review Committee on Moral Rights, Letter to Secretary of Copyright Law Review Committee, December 1984, NAA: BAD85/318, Organisation (1985). Submission to the Copyright Law Review Committee on Moral Rights, NAA: BAD95/318.
[83] Organisation (1985). Submission on Moral Rights to Copyright Law Review Committee January 1985, NAA: B85/4650.
[84] State Government (1985). Submission to Copyright Law Review Committee, April 1985, NAA: B85/4650, Organisation (1985). Submission to the Copyright Law Review Committee Report on Moral Rights, NAA: BAD 85/4650, Clark, J. F., Head, School of Teacher Education, Government Organisation (1985). Submission to the Copyright Law Review Committee Report on Moral Rights, NAA: BAD85/12693, Organisation (1985). Submission to the Copyright Law Review Committee on Moral Rights, NAA: B84/9524.
[85] Submission on Moral Rights to Copyright Law Review Committee January 1985, at 8. Submission on Moral Rights to Copyright Law Review Committee January 1985, at 6, State Government (1985). Submission on Moral Rights to Copyright Law Review Committee, December 1985, NAA: 85/12693, State Government (1985). Submission on Moral Rights to Copyright Law Review Committee, December 1985, NAA: 85/12693, Submission to the Copyright Law Review Committee on Moral Rights.
[86] Library Organisation (1984). Submission on Moral Rights to Copyright Law Review Committee, November 1984, NAA: B84/19524.
[87] Submission on Moral Rights to Copyright Law Review Committee January 1985, at 10–11. Organisation (1985). Submission to the Copyright Law Review Committee Report on Moral Rights, NAA: B85/15221.
[88] Organisation (1985). Submission to the Copyright Law Review Committee Report on Moral Rights, NAA: BAD85/318 at 6.
[89] Copyright Law Review Committee, above n 21, 34.
[90] Vaver, above n 35, 237.
[91] ‘Moral rights – The new era’ (1993) Australian Intellectual Property Law Bulletin 6 92.
[92] Vaver, above n 31,287.
[93] Ibid, 288.
[94] Ibid.
[95] Not as strident as Baumgarten but nevertheless critical on this basis is Brett Cottle, ‘The Problems of Legislating to Protect Moral Rights,’ (1992) In Moral Rights Protection in a Copyright System Peter Anderson and David Saunders (eds).
[96] Peter Banki, ‘The Moral Rights Debate in Australia’ (1992) In Moral Rights Protection in a Copyright System Peter Anderson and David Saunders (eds), 1, 5–6.
[97] Baumgarten, above n 38, 96.
[98] Baumgarten, Gorman and Meyer, above n 39.
[99] Baumgarten, above n 38, 89–91.
[100] Some articles, such as the one by Moana Weir on parody, implicitly refute the arguments about the economic impact of moral rights by distinguishing it from copyright for the purposes of discussion. Moana Weir, ‘Making sense of copyright law relating to parody: a moral rights perspective’ [1992] MonashULawRw 9; (1992) 18 Monash University Law Review 194; See also discussion by David Tan, ‘Seeing red over Stravinsky’s Firebird’ (1996) 7 Australian Intellectual Property Journal 63; Kate Paras, ‘Is Australia on the road to formally recognising moral rights, or is this one international obligation which will never be formally implemented?’ (1997) 2 Media and Arts Law Review 1,16; I.F Sheppard, ‘Moral Rights’ (1994) 2 Arts and Enterainment Law Review 17.
[101] This was flagged in the Attorney-General’s Department, Proposed Moral Rights Legislation for Copyright Creators – Discussion Paper, (1994).
[102] Michael Frankel, ‘Moral rights and the Australian Film Industry’ (1994) 4 Arts and Entertainment Law Review 58, 58.
[103] Ibid.
[104] For example, Dworkin, above n 41, 33–34. Also discussed in Michael Blakeney and Fiona Macmillan, ‘Journalistic parody and moral rights under Australian copyright law’ (1998) 3 Media and Arts Law Review 124; Matthew Alderson, ‘Moral Rights in Film – Towards a Director’s Copyright?’ (1996) 1 Media and Arts Law Review 61; Carolyn Jones, ‘Principles versus practicalities: should moral rights be subject to waiver?’ (1995) 4 Arts and Entertainment Law Review 56.
[105] This debate really started with Vaver’s article in 1988 above note 31; Peter Anderson, ‘Copyright and moral rights: finding the ‘write’ balance’ (1994) 6 Arts and Entertainment Law Review 68, Peter Anderson, ‘Artists’ rights and the exploitation of creativity: the introduction of moral rights protection for authors and artists - moral rights legislation: approaches to protecting creators’ rights’ (1993) 3 Arts and Entertainment Law Review 1.
[106] See discussion of this in Jones, above n 104. Also see discussion by Michelle Cooper, ‘Moral rights and the Australian Film and Television Industries’ (1997) 15 Copyright Reporter 166.
[107] See for example Jones, above n 104.
[108] Brett Cottle, above n 95, 106.
[109] Ibid, 105.
[110] Ibid.
[111] 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, Consideration of Legislation Referred to the Committee, Copyright Amendment Bill 1997, October 1997, 1.
[112] Ian Oi and Karen Gettens, ‘Potential problems with the Copyright Amendment (Moral Rights) Bill 1999’(2000) 12 Australian Intellectual Property Law Bulletin 109.
[113] The Australian Children’s Television Foundation, Submission to Senate and Constitutional Legislation Committee, (1997) Submission No 27.
[114] Screen Producers Association of Australia, Submission to Senate and Constitutional Legislation Committee, (1997a) Submission No 49 at 1.
[115] Evidence Legal and Constitutional Legislation Committee: Copyright Amendment Committee, (1997) Hansard, Tuesday 2 September 1997, 152–3.
[116] Federation of Australian Commercial Television Stations, Submission to Senate and Constitutional Legislation Committee (1997) Submission No 28, 1, 3.
[117] The NSW Bar Association, Submission to Senate and Constitutional Legislation Committee (1997) Submission No 50, 2, 3.
[118] Screen Producers Association of Australia, above n 114, 2.
[119] Australian Broadcasting Corporation, Submission to Senate and Constitutional Legislation Committee (1997) Submission No 87, 1.
[120] The NSW Bar Association, above n 117.
[121] Federation of Australian Commercial Television Stations, above n 116.
122 Ibid[.]
[123] Screen Producers Association of Australia, above n 114, 2.
[124] Advertising Federation of Australia Limited, Submission to Senate and Constitutional Legislation Committee, (1997) Submission No 4 5,3.
[125] Australian Association of National Advertisers, Submission to Senate and Constitutional Legislation Committee, (1997) Submission 64, 2.
[126] Australian Copyright Council (1997b). Submission to Senate and Constitutional Legislation Committee, (1997) Submission No 38A, 1–2.
[127] Evidence above n115,156.
[128] Australian Film Television and Radio School Submission to Senate and Constitutional Legislation Committee, (1997) Submission No 46.
[129] Australian Copyright Council, above n 126, 4–5.
[130] Australian Writers Guild, Submission to Senate and Constitutional Legislation Committee (1997) Submission 9, 14.
[131] In proposed section 195AV.
[132] Warwick Rothnie Submission to Senate and Constitutional Legislation Committee, (1997) Submission No 70, 5–6.
[133] Advertising Federation of Australia Limited, above n 124, 6.
[134] Senate Legal and Constitutional Committee, Consideration of Legislation Referred to the Committee – Copyright Amendment Bill 1997, 22.
[135] Australian Labor Party.
[136] Australian Democrats.
[137] Nick Bolkus, John McKiernan and Lynn Allison. (1997) ‘Minority Report,’ In Senate Legal and Constitutional Committee above n 134, 81 at 84.
[138] Ibid, see recommendation 5, 85.
[139] Proposed sections 195AC (b) and (c), 195AD(2)(b) and (c) and 238(1) of the Bill.
[140] Screen Producers Association of Australia, above n 114, 1.
[141] Australian Association of National Advertisers, above n 125, 4.
[142] Evidence Legal and Constitutional Legislation Committee: Copyright Amendment Committee, 157.
[143] Proposed section 195AL of the Bill.
[144] Sections 33, 34, and ss.93 to 96 of the Copyright Act.
[145] Screen Producers Association of Australia, above n 114, 2.
[146] Australian Copyright Council Moral Rights Bill – A Practical Guide, (2002) B114v1, June.
[147] See Ibid at 14. The working party consisted of film and television industry interests, creators, producers and broadcasters.
[148] Gerhard Pfennig, ‘The resale right of artists (droit de suite)’ (1997) XXXI Copyright Bulletin 20; Browne above n 66.
[149] Cooper, above n 106; Cecilia O’Brien, ‘Protecting Secret-Sacred Designs – Indigenous Culture and Intellectual Property Law’ (1997) 2 Media and Arts Law Review 57.
[150] Simon Lake, ‘Moral rights: beware the waiver mongers’ (1997) 16 Communications Law Bulletin 6.
[151] See also discussion of this in the US context in Henry Hansmann and Marina Santilli, ‘Authors’ and artists’ moral rights: a comparative legal and economic analysis’ (1997) 26 The Journal of Legal Studies 95.
[152] Duncan Kerr, ‘Copyright Law Reform: “Caught in the Net”’ (2000) 18 Copyright Reporter 102..
[153] See Australian Copyright Council, above n 146, 14.
[154] Darryl Williams. Second Reading Speech, 8 December 1999, 13027.
[155] I explore this in more detail in Cate Banks Lost in Translation: A History of Moral Rights in Australian Law, (2004) PHD Thesis, Unpublished, Griffith University, Chapters 6 ‘The Subject’ and Chapter 7 ‘The Object’.
[156] See discussion of this in Cate Banks, ‘The More things change, the more they stay the same’ [2000] GriffLawRw 22; (2000) 9(2) Griffith Law Review 334; also Banks, above n 155, Chapter 4, ‘Beyond a Faint Recognition’. My application of the moral rights regime to the case study of Indigenous creators yielded two results. The first was a direct challenge to those assumptions that the new legislative regime would ameliorate some of the inadequacies of the preceding legal system. I concluded that as the regime relied on a narrow view of what Australian moral rights might mean, and is the product of a particular discourse, it was unable to service the needs and goals of the Australian Indigenous communities. The second provided a reason to delve even further into the historical discourse, to understand why specific detailed discussions about moral rights were sidelined during the years of debates leading up to the legislation, particularly discussions about the subject and the object of moral rights.
[157] Darryl Williams Second Reading Speech, 8 December 1999, at 13027.
[158] Brad Sherman and Lionel Bentley The Making of Modern Intellectual Property Law (1999), 206.
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