By Raena Lea-Shannon is a Volunteer Lawyer, Associate at M.Frankel & Co. and Committee Member Watch on Censorship.
Hot on the heels of the new moral rights provisions of the Copyright Act, passed late last year, one subscriber raised an interesting issue. Do moral rights cover letters to the Editor?
Are moral rights only ever intended to be invoked in the name of artistic works of the highest cultural and aesthetic importance? The language of theBerne Convention for the Protection of Literary and Artistic Works on Moral Rights (at 6bis) (the source of our legislation) seems to convey that impression. It says an author has a right to claim not only authorship but "to object to any distortion, mutilation or other modification of it [a work] or other derogatory action in relation to the said work which would be prejudicial to his [the author's] honour or reputation."
What possible relevance could someone's honour or reputation have to a dashed off whinge to an editor?
Dashed off or not a letter to the editor is still a "work" so far as the Copyright Act is concerned. Section 192 of the Copyright Act states that: "The moral rights of the author of a work are in addition to any other rights in relation to the work that the author or anyone else has under this Act"
The subscriber had a personal concern and was not just musing jurisprudentially for the sake of it. His concern arose out of a series of letters to the editor of a local paper over a vigorously debated environmental issue. The local paper had a policy to accept letters of no more than 150 words as stated in the letters to the editor section. If a letter exceeded that limit it was well known by its readers, though not stated in the paper, that you can expect to be edited.
The subscriber's awareness of this policy arguably amounts (by constructive notice) to a consent to the paper's editing for purpose of length. (Most papers give written notice of this editorial policy.) If the editing of the letter by the paper was excessive then it could exceed the scope of the consent to edit, and the paper may be in breach of the right to reproduce the letter. Arguably, excessive editing may give the subscriber an action for infringement of copyright. If the editing did not change the meaning of the letter and did simply shorten it, there would be no infringement of copyright.
In any event the subscriber felt that copyright infringement was not a course of action that would have much sting. There is no remedy of apology or correction for copyright infringement as there is for infringement of moral rights (see: section 195AZA(d) and (e)).
The local paper received quite a number of letters on the environmental issue many of which were edited. After editing it was clear that the editor was, whilst maintaining the point of view being expressed, watering down the emotional level of that expression. The subscriber and other writers felt that, at the very least, the pitch of their feelings about the issue was being censored out, even though their point of view had not been misrepresented. Had their moral rights been infringed?
Before that can be answered the moral rights provisions of the Copyright Act (Part IX) have a series of defences that must be considered.Section 195AWA covers an author's consent to act or omission that is "within the scope of a written consent genuinely given by the author or a person representing the author."
In this case no "written" consent was given. For consent to be a good defence, it must be a consent to do the specified acts or omissions, ie. not just a blanket consent. Section 195AVA sets out a number of matters to be taken into account in deciding whether that consent is a good defence.[i]
Moral rights can apply to letters to the editor but in the subscriber's case, was the honour and reputation of the writers in their points of view distorted? (ie. had the letter been subjected to derogatory treatment?)
These issues are yet to be judicially considered in Australia. The most obvious body of law to draw upon is defamation law, because a lot of court time has been spent looking at notions of reputation and because it was the intention of the Berne Convention to draw upon notions of defamation.[ii]
Patricia Loughlan (Associate Professor, Faculty of Law University of Sydney) argues that the law of defamation uses a community test to determine what is lowering of reputation in the view of reasonable persons. She concludes that an artist's peers (critics and other artists) are the relevant milieu to whom the question of prejudice to honour falls.[iii]
The test rightly makes the artistic community itself the final arbiter, at least potentially, of what kinds of treatment of works are derogatory and ought therefore to be prohibited.
In the subscriber's case, who is that relevant milieu and how will that be determined? Is it the entire local community? Is it all right-minded Australians? Is it those "idiosyncratic individuals"[iv] in the community holding the same view as the people whose letters were distorted?
Here the writers' letters were distorted such that their individual styles and the personal sentiments of their expression were deliberately stifled. A Court should be satisfied that such an act is prejudicial to the writer's honour (if not reputation) without resort to contriving any community or sub-community point of view.
[i] Section 195AVA
- the extent (if any) of the person's power to prevent the doing of the act concerned;
- the nature of any relationship existing between the person and the person who did the act concerned;
- whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice.
Such things as the Media Entertainment and Arts Alliance Journalists Code of ethics would be of possible relevance to the scope of consent an editor may be able to obtain and exercise.
[ii] See (AIPR Vol 12 No 4 Nov 2001 “The Right of Integrity: What is in that Word Honour? What is in that Word Reputation? Patricia Loughlan, 189 at194
[iii] Patricia Loughlan, op cit fn 2 at 198.
[iv] Patricia Loughlan, op cit fn 2 at 197 where Loughlan quotes from L B Lidsky, “Defamation, Reputation and the Myth of Community”, (1996) 71 Washington Law Review 1 at 19