RECOMMENDATIONS

The Australian Law Reform Commission poses a question in respect of moral rights in the issues paper on Copyright and the Digital Economy.

Question 18. The Copyright Act 1968 (Cth) provides authors with three ‘moral rights’: a right of attribution; a right against false attribution; and a right of integrity. What amendments to provisions of the Act dealing with moral rights may be desirable to respond to new exceptions allowing transformative or collaborative uses of copyright material?

In response, I would emphasize a number of themes in respect of moral rights.

Recommendation 1 There is a need for the Australian Law Reform Commission to consider the history of moral rights in Australia and its contextual operation – in respect of copyright subject matter, such as literary works, artistic works, musical works, dramatic works, performances, cinematographic films, and architecture.

Recommendation 2 For over a dozen years, Australia’s moral rights regime has utilised a flexible, open-ended, multi-factorial defence of reasonableness. This defence has been uncontroversial. It has produced no discernible ill-effects. The magistracy and the judiciary has not been gripped by uncertainty or indeterminacy. The digital economy has not ground to a halt. The defence has not been struck down by international trade agreements. The sky has not fallen in. The flexible, open-ended, multi-factorial defence of reasonableness should be retained. The defence could be refined in small ways. The defence of reasonableness under moral rights strengthens the case for a defence of fair use in respect of economic rights.

Recommendation 3 In light of the ruling of the Supreme Court of Canada in Théberge v. Galerie d’Art du Petit Champlain inc., it is observed that there is a need for Australian courts to show consistency and harmonisation between how mash-ups are dealt with under economic rights and moral rights.

Recommendation 4 The test of reasonableness should take into account the age of a copyright work – and whether the author of a copyright work can be located.

Recommendation 5 The test of reasonableness in respect of moral rights should recognise parody, satire, and transformative uses such as remixes and mash-ups.

Recommendation 6 The test of reasonableness in respect of moral rights should take into account considerations of human rights – in particular freedom of speech and freedom of artistic expression.

Recommendation 7 It is suggested that, under the moral rights regime, cultural groups and professional associations could create an industry code of conduct, governing remixes and mash-ups, helping to delineate what uses are reasonable and what uses are unreasonable.

Recommendation 8 It is suggested that, under the moral rights regime, cultural groups and professional associations could create industry codes of conduct to help delineate what uses are reasonable and what uses are unreasonable.

Recommendation 9 The specific consent provisions under the moral rights regime should be retained. There is a need to strengthen the sanctions under the moral rights regime in respect of the illegitimate use of waivers. There is a need to ensure that moral rights are not subject to contracting out – beyond circumstances where there is specific, prior, and informed consent.

Recommendation 10 The moral rights regime – as well as the economic rights regime – would benefit from a clear statement of the factors to be taken into account in respect of joint authorship.

Recommendation 11 The moral rights regime should not engage in the special treatment of cinematographic films in respect of authorship, infringement, exceptions, and duration. There should be a simplification of the moral rights regime.

Recommendation 12 The moral rights regime should apply to both performers in respect of sound recordings and audio-visual works – especially in light of the World Intellectual Property Organization Beijing Treaty on Audiovisual Performances 2012.

Recommendation 13 The moral rights regime should be revised to ensure that architects should full moral rights – and not merely a limited right of consultation.

Recommendation 14 The Australian Law Reform Commission should review the specific exceptions under s 195AT of the Copyright Act 1968 (Cth) in respect of architecture and moveable artistic works.

Recommendation 15 There is a specific moral rights exception under s 195AT (j) of the Copyright Act 1968 (Cth) relating to cultural restoration and preservation work. There should be a discussion as to whether there should be a general cultural heritage defence or exception under the copyright regime for both moral rights and economic rights.

Recommendation 16 The Australian Law Reform Commission should consider moral rights and intermediary liability particularly under the exception of s 195AVB of the Copyright Act 1968 (Cth). There is a lack of consistency with how intermediary liability is dealt with in respect of economic and moral rights.

Recommendation 17 Moral rights should not be subject to parallel importation restrictions – eg s 195AU of the Copyright Act 1968 (Cth). Such restrictions should be repealed.

Recommendation 18 The moral rights regime – and the economic rights regime - should recognise Indigenous cultural works as a separate subject matter protected by copyright law.

Recommendation 19 The moral rights regime – and the economic rights regime - should recognise that Indigenous cultural works can be subject to collective ownership.

Recommendation 20 The moral rights regime – and the economic rights regime - should take into account Indigenous cultural norms and standards in the assessment of copyright exceptions.