First Published in ART+Law in March 2000. The information in this article was accurate at the time of first publication. Please contact Arts Law to check if the law is still current or for specific advice or assistance.
The Copyright Amendment (Moral Rights ) Bill was reintroduced into Federal Parliament in late November 1999. The most significant features are the removal of waiver in respect of moral rights and the broad inclusion of the terms and conditions negotiated in the film and television sector.
Of overriding concern is that the details of the latest negotiated agreement reached in the film and television sector in respect of moral rights has been applied across all arts sectors without equally taking into account the interests of creators in the other arts sectors. It was also not the intention of the film and television sector that their agreement would apply across all art sectors.
In addition to Arts Law's ongoing submissions, a joint letter was sent to the Attorney General and Minster of Arts setting out the arts sector’s main concerns and recommendations in respect of the Copyright Amendment (Moral Rights) Bill. The joint letter was sent by the Australian Society of Authors, Australian Screen Directors Association, Australian Writers Guild and the National Association for the Visual Arts.
The letter made the following comments and recommendations:
Application of Moral Rights to existing works
The proposal to apply moral rights only to works coming into existence after the commencement of the legislation is a significant departure from the recommendation of the Senate Committee that moral rights should not apply to films made before the introduction of the legislation or other works created by authors who die before the introduction of the rights. It is also submitted that the principle is inconsistent with Australia’s obligations under the Berne Convention.
The Duration of the Right of Integrity
The 1999 Bill provides that the rights of integrity ceases on the death of the author. In the 1997 Bill the right of Integrity attached for the duration of copyright in the work.
We submit that whatever arrangement is reached in relation to film and television, other creators must have the benefit of the right of integrity for the period of copyright protection, as reflected in the 1997 Bill. The agreement reached in the film and television sector can operate in tandem with the statutory moral rights regime and is intended to form part of an industry code of practice that will act as a defence to moral rights infringement under sections 195 AR and 195 AS
Consent
Although the drafters of the 1999 Bill have removed the contentious waiver, the new consent regime proposed in section 194 AW looks dangerously like a de facto waiver. The broad wording of section 195 AW allows those persons wishing to avoid the obligation of moral rights simply to require a written consent form the author or maker not exercise their moral rights. Considerable lobbying, negotiation and consultation by the arts and film and television sectors is currently taking place to resolve this anomaly.
The joint letter argues that the Bill does not give full and proper effect to Australia’s obligations under article 6 Bis of the Berne Convention for the Protection of Literary and Artistic Works. Nor does it adequately provide for mutual standard protection to both Australian authors and authors in signatory countries can rely on moral rights protection in Australia.
Arts Law has made additional submissions in respect of the Public Art (section 195 AT) and moral rights recognition and application to indigenous works subject to communal ownership.
The Bill is due to be presented to the House of Representatives in April. Arts Law has intensively lobbied from early December 1999 when the Copyright Amendment ( Moral Rights ) Amendment Bill was introduced and will continue our commitment to ensure that such legalisation would fulfill its ultimate objective, that is the respect and protection of artists' rights.
