Principle 1: Acknowledging and respecting authorship and creation

2.4 A number of stakeholders referred to the concept of ‘authorship’ as being the paramount consideration in any copyright discussion.[2] Alongside economic rights of creators are moral rights and cultural considerations, in particular, issues relating to Indigenous culture and cultural practices in the context of digitisation of individual, family and community material.[3]

2.5 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’.[4]

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.[5]

2.6 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. It was observed that ‘the High Court in IceTV has recently emphasised the centrality of the concept of authorship in understanding the proper scope of protection for works under the 1968 Act’.[6]

2.7 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 Organisation Copyright Treaty.[7] In this Discussion Paper ‘creator’ is used at times as a generic term referring to authors or makers of copyright material.

2.8 The ALRC proposals for reform to copyright law should operate in a way that acknowledges and respects the rights of authors, artists and other creators.

[2] See, eg, Members of the Intellectual Property Media and Communications Law Research Network at the Faculty of Law UTS, Submission 153.

[3] 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.

[4] State Library of New South Wales, Submission 168.

[5] Australian Major Performing Arts Group, Submission 212.

[6] Law Council of Australia, Submission 263. The ALRC notes that the Ireland Copyright Review Committee refers to authors and rights holders together, albeit noting that the ‘situation of the individual author or artist is a dominant trope in copyright lore’: Ireland Copyright Review Committee, Copyright and Innovation, Consultation Paper (2012), 33.

[7] Law Council of Australia, Submission 263.