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Cases
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Australia
This page considers moral rights cases and controversies
in Australia and New Zealand.
It covers -
introduction
As noted in the Intellectual Property
guide elsewhere on
this site, there has been little case law about moral
rights under the Australian
Copyright Amendment (Moral Rights) Act.
In contrast there have been several cases in New Zealand
under that nation's legislation.
controversies
Controversies since passage of the legislation have included
-
- disagreement
about redesign of the entry to the National Gallery
of Australia in Canberra
- action
- settled out of court - by world-renowned architect
Harry Seidler (1923-2006) over alleged derogatory changes
by a property owner to one of his designs
- litigation
by artist Vladas Meskenas over incorrect attribution
by Woman's Day magazine of his portrait of
Victor Chang.
Selected
Australian copyright case law is discussed in more detail
here.
precursors
Cases outside the Act included
- Adams
v Quasar Management Service Pty Ltd
- Schott
Musik International GmBH & Co v Colossal Records
of Australia Pty Ltd
- Benchmark
Building Supplies Ltd v Mitre 10 (New Zealand) Ltd &
Anor
Adams v Quasar Management Services Pty Ltd & Ors
[2002] QSC 223 (13 August 2002) here
The case, discussed in 56 IPR 385, featured argument in
the Supreme Court of Queensland about of false attribution
of authorship. A civil engineer as co-author of a construction
manual alleged that the defendants had breached s 190
of the Copyright Act 1968 (Cth) by failing to
identify him as one of the authors in the Victorian and
New South Wales editions of that text. They argued that
they were protected from false attribution of authorship
through the defence of reasonableness under s 195AR of
that Act 1968, under 2000 Moral Rights amendment.
Philippides J held that they could not avail themselves
of the defence, as the attribution occurred prior to when
the section came into effect. He found that the defendants
were in breach of s 190 but noted that the plaintiff had
already received compensation for breach of contract and
accordingly held that that damages were unwarranted. The
decision has been criticised for confusing false attribution
and lack of attribution.
Schott
Musik International GmBH & Co v Colossal Records of
Australia Pty Ltd (1996) 71 FCR 37, 36 IPR 267; aff'd
(1997) 75 FCR 321, 38 IPR 1
Schott - aka the Carmina Burana case - concerned alleged
debasement of Carl Orff's Carmina Burana through
adaptation by a techno music group of the 'O Fortuna'
chorus in that work. The adaptation had been featured
on a recording under the auspices of Colossal Records.
Orff's widow took action.
Tamberlin J of the Federal Court in the first instance
found that the group preserved substantial and essential
elements of the original score. The adaptation exhibited
a rhythmic character and exuberance consistent with the
spirit of Orff's work. There was no debasement and thus
no breach of s 55(2) of the Copyright Act 1968
(Cth). That section provided that there is no entitlement
to a compulsory licence for a record 'in relation to a
record of an adaptation of a musical work if the adaptation
debases the work'.
The full bench of the Federal Court upheld the finding
on appeal, although disagreeing over the proper test for
debasement. Wilcox J and Lindgren J favoured a subjective
test; Hill J favoured an objective test.
Importantly, the Court refused to consider whether the
original work was debased by associations with advertisements
and adaptations licensed by the copyright owners, ie authorised
by Mrs Orff.
The
fact that on a future hearing of the work a listener
is plagued with visions of Nescafé coffee beans,
Arnold Schwarzenegger or Michael Jackson does not necessarily
mean that the work is to be regarded as already diminished
or debased
Benchmark Building Supplies Ltd v Mitre 10 (New Zealand)
Ltd & Anor
On appeal the respondents sought to uphold the judgment
on grounds of trade mark infringement, breach of copyright
by both adaptation and copying, and on a further ground
(not argued in the High Court) namely breach of moral
rights. The respondents alleged that the addition
of the stickers to the brochures constituted derogatory
treatment of the copyright works comprising the brochures.
The first respondent alleged that it was the author of
the works and entitled to assert moral rights.
Moral rights are enforceable only by the authors of works,
not the owner of copyright in those works, with the definition
of 'author' in s 5(1) not extending to bodies corporate.
In the Benchmark case the authors of the works were individuals
that were not parties to the proceedings and the first
respondent was not the author.
The Court was not persuaded that displaying brochures
in which copyright works are reproduced for comparative
advertising amounts to derogatory treatment. That
the appellant was taking advantage could not be said to
be prejudicial to the honour or reputation of the authors
whose identity was not disclosed.
Australian cases
Meskenas v ACP Publishing in the Federal Court
involved action by 89 year old artist Vladas Meskenas,
whose portrait of Victor Chang was incorrectly attributed
to painter Jiawei Shen when reproduced in ACP's Woman's
Day magazine. Raphael FM noted in his crisp judgement,
discussed here,
that "no apology was provided, notwithstanding that
Eugene Meskenas made approximately 90 telephone calls
in total to the magazine".
In a landmark for Australia's moral rights regime the
Magistrate awarded $8,000 in relation to infringement
of Meskenas' moral right, commenting
I
should make it clear this award relates to the conduct
of the respondent and the additional hurt caused by
that conduct to the applicant following his advice to
it that his copyright/moral right had been infringed.
It is therefore additional to the lesser sum [$1,100]
awarded in respect of the original infringement
Meskenas
v ACP Publishing Pty Ltd [2006] FMCA 1136 (14 August
2006) | here
studies
Maree Sainsbury's Moral Rights & their Application
in Australia (Leichhardt: Federation Press 2003)
is noted in the Intellectual
Property Guide, which also points to relevant government
reports and academic papers.
Other works include Anthony Hutchings's 1997 Sydney
Law Review article
'Authors, Art, and the Debasing Instinct: Law and Morality
in the Carmina Burana Case'; Matthew Rimmer's 2006 The
Garden of Australian Dreams: The Moral Rights of Landscape
Architects paper
(also available in New Directions in Copyright
Vol 3 (Cheltenham: Elgar 2006) edited by Fiona MacMillan
& Kathy Bowrey), Elizabeth Adeney's 'Authors' Rights
in Works of Public Sculpture: A German/Australian Comparison'
(33 International Review of Industrial Property &
Copyright Law, 2002), 'Moral Rights & Substantiality:
Some Questions of Integration' (13 Australian Intellectual
Property Journal, 2002), 'Defining the Shape of Australia's
Moral Rights: A Review of the New Laws' (4 Intellectual
Property Quarterly, 2001) and 'Moral Rights/Statutory
Licence: The Notion of Debasement in Australian Copyright
Law' (9 Australian Intellectual Property Journal,
1998); Patricia Loughlan's 'The Ravages of Public Use:
Aboriginal Art And Moral Rights' (7 Media & Arts
Law Review, 2002) and 'The Right of Integrity: What
Is in That Word Honour? What Is in That Word Reputation?'
(12 Australian Intellectual Property Journal,
2001).
For the antecedents and history of the Australian regime
see Elisabeth Logeais' 2001 'The Introduction of Moral
Rights in Australia: A French Perspective' (47 Intellectual
Property Forum) and Lost in Translation: A History
of Moral Rights in Australian Law, a 2005 dissertation
by Catherine Banks.
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