By Delia Brown*.
First published in ART+law, December 2000.
Third Reading of the Copyright Amendment (Moral Rights) Bill
On 31 October 2000, the Government introduced a further 24 amendments to the Copyright Amendment (Moral Rights) Bill 1999. Fortunately the Government was persuaded to make further amendments in response to the arts sector’s concerns.
The Bill was read in the Senate on 7 November 2000 and is likely to be considered by the Senate in its first sitting in 2001. The new amendments have addressed some of the specific and legitimate concerns of the arts community, namely the duration of the right of integrity, certain treatments of works and application to existing works. The Government remains wedded to its original drafting of clause 195 AW and has rebuffed Arts Law’s request to limit co-authorship agreements to the film and television sector only.
Consent
The Government has removed all references to unconditional consent and introduced a new 195 AW (4) permitting consents to be given by employees for the benefit of their employer in relation to all works made or to be made by the employee in the course of his or her employment.
Duration of the Right of Integrity
A new clause 195 AM extends the duration of the right of integrity in respect of works (other than film) to the lifetime of the author plus fifty years.
Certain Treatment of Works
A new section 195 AT (2)(b) provides it will not be an infringement of the author’s right of integrity of authorship where an owner decides to remove, relocate or destroy an artistic work that is affixed to, or forms part of, a building, provided they notify the artist of their intention. The artist may ask for access to the work within three weeks of the date of notice. Where the artist makes such a request, a further three weeks is granted to the artist within which to have such access. Section 195 AT (2) (a) provides that where the owner, after making reasonable inquiries, cannot discover the identity or location of the author or person representing the author, the removal, relocation or destruction of the work will not be an infringement of the author’s right of integrity of authorship.
A new section 195 AT (4A) (b) provides that the removal or relocation of a moveable artistic work is not an infringement of the author’s right of integrity of authorship where that artist or their representative is notified in writing of the intention to remove or relocate the work. The artist may seek to consult with the remover about the removal or relocation, or about having access to the work. Where the artist makes such a request within the prescribed three weeks, the artist is then given a reasonable opportunity to consult or have such access within a further three weeks. Section 195(4A) (a) provides that where the owner, after making reasonable inquiries, cannot discover the identity or location of the author or person representing the author, the removal, relocation or destruction of the work will not be a infringement of the author’s right of integrity of authorship.
Section 195 AT grants the artist a right of access only. It does not provide that the right of access is for the purposes of documentation of the work for the purposes for good faith consultation between the artist and owner in respect of removal or relocation.
Arts Law proposes that, where the work is to be destroyed, the artist should be afforded a reasonable opportunity to remove the work at his or her own expense. If the work is accordingly removed, title in the work should revert back to the artist. Arts Law is also of the view that the artist should be granted a right of good faith consultation with respect of restoration or conservation of works. Reasonable steps should also be taken in the process to ensure that the work is not unduly damaged or degraded.
Application to Existing Works
New clauses 195 AZM, 195 AZN, 195AZO deal with the application of moral rights to existing works.
Clause 195 AZM provides that the right of attribution of authorship applies to works (other than film) made before or after the commencement of the legislation, but only films made after the commencement of the legislation will be afforded the right of attribution of authorship.
Clause AZN provides that the new rights will apply to acts and omissions (breaches of moral rights) which occur after the commencement of the legislation.
Clause195 AZO applies to all works other than film made before the commencement of the legislation if the author of the work is still alive at the time the legislation is enacted. This means the works of deceased artists whose works are still under copyright receive no moral rights protection, even where derogatory treatment occurs after the enactment of the legislation. New clause 195 AZO (ii) provides all works other than film made after the commencement of the legislation are protected.
Arts Law is of the strong view that all works (except film) that are subject to copyright protection should be afforded moral rights protection against acts or omissions that occur after the enactment of the legislation regardless of whether the author is dead or alive.
For previous moral rights updates refer to Art+Law 99.4, available at www.artslaw.com.au, and Art+Law 2000.2.
*Delia Browne was the Executive Director of Arts Law in 2000
