2.5 In the past, the Australia copyright law focused more on economic interests than moral rights, in contrast to European systems, which paid more attention to the personal rights of authors and creators. Moral rights were introduced into Australian copyright law in December 2000, with a scheme allowing for the right of attribution—to be named as author or creator—and the right of integrity—to prevent the alteration or other treatment of work in a way that affects the author’s reputation. A number of stakeholders consider recognition of moral rights and in particular recognition of ‘authorship’ as being the paramount consideration in any copyright discussion.
2.6 The ALRC recommendations for reform to copyright law should be framed in a way that acknowledges and respects the rights of authors, artists and other creators. In this Report, the recommendations are tested against this and the other framing principles. Part of an assessment of the fairness of copyright exceptions includes the effect on authors and creators, including their moral rights and cultural considerations.
2.7 Moral rights and cultural considerations, in particular issues relating to Indigenous culture and cultural practices, need always to be considered, alongside economic rights. All reform recommended in this Report is consistent with the requirements of Indigenous artists, custodians and communities as they can incorporate, as appropriate, Indigenous cultural protocols. This is particularly relevant in the context of digitisation of individual, family and community material.
2.8 An important aspect to be made explicit is the general principle of the rights of authors and makers of copyright material to determine how their works are exploited ‘while at the same time acknowledging the rights of consumers to engage with content in a manner which does not adversely impact the rights of creators’.
2.9 Regardless of the status of economic infringement of rights, ‘a creator should always be able to assert their moral rights and seek removal from the internet of derivative works considered to violate these rights’.
2.10 Some stakeholders preferred that the term ‘rights holders’ not be used in a manner which obscures the importance of authorship and creation of copyright material.
2.11 ‘Authorship’ is not to be interpreted in a manner that is too narrow or culturally specific. It needs to be noted that the concept of the author is specifically left undefined in the Copyright Act, allowing for an enormous range of expressive and pedestrian works to be encompassed.
2.12 On a point of terminology, one stakeholder pointed out that the Copyright Act does not refer to ‘creators’, but rather to ‘authors’ of works and ‘makers’ of other subject matter, although the term ‘author’ is the only expression used in the relevant international conventions, such as the Berne Convention and the World Intellectual Property Organization Copyright Treaty. In this Report ‘creator’ is used at times as a generic term referring to authors or makers of copyright material.
2.13 Moral rights were formally incorporated into Australian copyright law in 2000. These are personal rights centred around the author or creator of material and are independent of the author’s economic rights. Consideration of moral rights is additional to and separate from consideration of economic rights, although may be a factor is assessing the fairness of the use of copyright material.
2.14 Questions of authorship, moral and cultural rights are also discussed under the next framing principle.
Copyright Amendment (Moral Rights) Act 2000 (Cth).
See, eg, Members of the Intellectual Property Media and Communications Law Research Network at the Faculty of Law UTS, Submission 153.
See T Janke and R Quiggin, Indigenous Culture and Intellectual Property: The Main Issues for the Indigenous Arts Industry in 2006 (2006), prepared for the Aboriginal and Torres Strait Islander Arts Board and Australia Council.
The Australia Council considers ‘the protection of moral rights and economic incentives for the creation of work to be paramount considerations for copyright reform’: Australia Council for the Arts, Submission 860.
Ibid; AIATSIS, Submission 762; Viscopy Board, Submission 638.
K Bowrey, ‘Indigenous Culture, Knowledge and Intellectual Property: The Need for a New Category of Rights?’ in K Bowrey, M Handler and D Nicol (eds), Emerging Challenges in Intellectual Property (2011): ‘ the digitisation and/or dissemination of “traditional cultural expressions”, including secret and sacred Aboriginal cultural heritage by museums, archives or other cultural institutions, should be subject to the free, prior and informed consent of Indigenous artists, custodians or communities’: Arts Law Centre of Australia, Submission 171; K Bowrey, Submission 94. See also J Anderson, ‘Anxieties of Authorship in the Colonial Archive’ in C Chris and D Gerstner (eds), Media Authorship (forthcoming 2013); T Janke, Ethical Protocols from Deepening Histories of Place: Exploring Indigenous Landscapes of National and International Significance (2013) <www.deepeninghistories.anu.edu.au> at 10 April 2013.
State Library of New South Wales, Submission 168.
Australian Major Performing Arts Group, Submission 212.
Law Council of Australia, Submission 263. The Copyright Review Committee (Ireland) referred to authors and rights holders together, albeit noting that the ‘situation of the individual author or artist is a dominant trope in copyright lore’: Copyright Review Committee (Ireland), Copyright and Innovation, Consultation Paper (2012), 33.
Law Council of Australia, Submission 263.
Copyright Act 1968 (Cth) Pt IX.
See further Ch 5.