The Law Handbook 2024

Chapter 7.6: Copyright 765 owner who used a professional photograph on a website without the copyright owner’s consent was ordered to pay US$1850 compensatory damages (the photographer’s usual licence fee) and additional damages of AU$12 500, because she had knowingly and deliberately infringed copyright, and had not offered to remove the photograph or pay a licence fee when challenged. Defendants may also be ordered to pay the copyright owner’s legal costs. The same remedies may be granted against a defendant if they have done certain acts to circumvent a technological protection measure ( TPM ), which is designed to control access to copyright material (e.g. a password), or to prevent infringement. This is most relevant to computer software, electronic music or video files, ebooks and DVDs. Making, importing and distributing a device designed to defeat a TPM is prohibited, as is removing or altering electronic copyright information, and importing or distributing works with their electronic information altered or removed (ss 116AK–116D). Copyright infringement and the other acts described above are criminal offences if done for a commercial purpose (ss 132AA–133B) although prosecutions for these offences are uncommon. Moral rights and other copyright issues Moral rights Moral rights are not strictly speaking copyright, but are granted by Part IX of the Copyright Act. They are intended to protect the non-economic aspect of a creator’s interest in their work, including the creator’s reputation and sense of continuing connection with their work. Moral rights belong to the author of a work, to the director, producer and screenwriter of a film, and to performers of live or recorded performances, regardless of who owns the copyright. Moral rights are: • the right to be identified as the author of the work or film, or as a performer of amusical performance, in a clear and reasonably prominent form; • the right not to have the authorship of the work or film, or the identity of a performer of a performance, falsely attributed to someone else; • the right not to have the work, film or performance subjected to derogatory treatment. This is the distortion, mutilation or material alteration of the work, film or performance (or, for works and films only, doing anything else) that is prejudicial to the author’s honour or reputation (right of integrity). Artists have extra rights against destruction of their work and public exhibition that is prejudicial to their honour or reputation. Without moral rights, a person who owns a painting would have the right to destroy it or alter it. Similarly, even if an author has assigned copyright in a novel to a publisher, moral rights may prevent the novel being published in a way the author finds objectionable, such as in an abridged edition or with a pornographic cover. The author’s right of integrity in a film lasts for the lifetime of the person entitled to exercise the rights. All other moral rights in works and films last for the duration of copyright. The Copyright Act sets out numerous circum­ stances in which failing to comply with a moral right does not infringe that right. These include when the failure is reasonable, and when the author has agreed to the non-compliance. For example, it is usually reasonable to not identify the employee who is the author of a business document. However, it is very difficult to decide what is reasonable in the context of commercial dealing with a work that has a serious artistic purpose. For this reason, writers, artists and film makers may be asked to give consent to a wide class of acts that might otherwise infringe their moral rights in their creations. The remedies for infringement of moral rights include an order to cease the infringement, payment of damages and apologising publicly. Infringing moral rights is not a criminal offence. Performers’ protection Part XIA of the Copyright Act contains provisions protecting people who give live dramatic, musical, dance or circus performances, or live recitals of literary works, from the unauthorised recording (sound or film), broadcasting or other electronic transmission to the public of their performances. Provided that the person knows, or ought reasonably to know, that the recording is unauthorised, making a copy of an unauthorised recording, or causing an unauthorised recording to be performed in public, as well as commercial dealings with unauthorised