Australian legislative protection of copyright authors' honour.

• Jurisdiction: Australia
• Date: 01 December 2001
• Author: Ellinson, Dean

[Moral rights legislation came into force in Australia on 21 December 2000. It provides authors of copyright works with, inter alia, a new right of integrity of authorship in respect of their works. Central to the right of integrity of authorship is the protection of `author's honour'. This article examines the concept of `author's honour' and offers a definition of it within the context of the Australian moral rights legislation. The definition suggested is based on recognising that the protection of `author's honour' is, according to the legislation, a right of integrity of authorship. A conceptual framework is then developed to assist in determining when treatment of a work prejudices the author's honour. In particular, the conceptual framework provides a basis for distinguishing between different types of works and for clarifying why particular treatment of one type of work may prejudice the author's honour but the same treatment of another type of work may not.]

I INTRODUCTION

The Copyright Act 1968 (Cth) (`Copyright Act') has been amended to give authors (1) of copyright works (`works') (2) a new right of integrity of authorship in respect of their works. (3) The amending legislation, which is the Copyright Amendment (Moral Rights) Act 2000 (Cth) (`Australian moral rights legislation'), was passed by the Commonwealth Parliament on 7 December 2000 and came into force on 21 December 2000. (4) Central to the right of integrity of authorship is the protection of `author's honour'. This article's primary focus is on determining the meaning of `author's honour' within the context of the Australian moral rights legislation, and providing a conceptual framework to assist in judging when treatment of a work is prejudicial to the author's honour. Before considering the concept of `author's honour' we outline the main elements of the legislative definition of `derogatory treatment', which is a term closely tied to the right of integrity of authorship and contains the concept of `author's honour'.

II LEGISLATIVE DEFINITION OF DEROGATORY TREATMENT

The Australian moral rights legislation provides that the right of integrity of authorship in respect of a work is the author's right not to have his or her work (5) subjected to derogatory treatment. (6)

Set out below are examples of situations that raise the issue of whether derogatory treatment has occurred:

* adding a soundtrack to a silent film;

* colourising a black and white film;

* relocating a site-specific sculpture; (7)

* painting clothes on the depiction of a nude figure in someone else's painting;

* the subject of a portrait arranging for a painting restorer to reduce the length of the subject's legs as depicted in the portrait; (8)

* cutting up a single painting into parts to be exhibited or sold separately; (9)

* spray-painting a sculpture and making additions to it to enhance the work's stability so that children can climb on it; (10)

* lopping off the top third of a sculpture because it does not fit into the corporate owner's foyer; (11)

* placing Christmas ribbons on a sculpture of geese located in a shopping mall; (12)

* changing a design feature of the Sydney Opera House;

* making a sound recording of a `techno' version of a highly popular choral work based on medieval monks' chants; (13)

* reproducing a songwriter's song, or a composer's musical score, in a political or advertising context that is contrary to the views of the songwriter or composer; (14)

* altering the words of a poem because it is `too English' and is being adapted to an Australian sensibility; (15) and

* performing a play but changing its setting from one country to another or from one period of time to another.

The legislative definition of `derogatory treatment' is divided into three categories. (16) Conduct coming within any one of the three categories constitutes `derogatory treatment'. The first category constitutes the doing, in relation to a work, of anything that results in a material distortion of, the mutilation of, or a material alteration to, the work that is prejudicial to the author's honour or reputation. (17) In the case of an artistic work, this category is expanded to include the doing, in relation to a work, of anything that results in the destruction of the work that is prejudicial to the author's honour or reputation. (18) The second category comprises the exhibition in public of an artistic work that is prejudicial to the author's honour or reputation because of the manner or place in which the exhibition occurs. (19) The third category is the doing of anything else in relation to a work that is prejudicial to the author's honour or reputation. (20) This third and very broad category makes clear that `derogatory treatment' can be constituted by the doing of something which does not alter the work's material form, (21) such as a contextual interference, (22) provided that the treatment is prejudicial to the author's honour or reputation. Effectively, the legislative definition of `derogatory treatment' is the doing of anything in relation to a work that is prejudicial to the author's honour or reputation.

The reference to the `doing of' indicates that the conduct complained of must constitute something being done. The legislative definition is not satisfied if the conduct complained of concerns only an omission; for example, a publisher's failure to publish a work, a gallery's failure to take proper care of a work, or a local council's refusal to display a sculpture. The phrase `in relation to' indicates that there must be a relationship, connection or association between the activity complained of and the work. (23) The doing of anything in relation to a work refers particularly, but not necessarily only, to changing a work's material form or changing the context in which the work's material form is used. The doing of anything in relation to an author's work constitutes `treatment' of the work but the treatment of the work must be prejudicial to the author's honour or reputation if the legislative definition of `derogatory treatment' is to be satisfied.

III MEANING OF `AUTHOR'S HONOUR'

A `Author's Honour' Means Author's Entitlement to Respect

The Australian moral rights legislation has no definition of `honour'. No interpretation of that term is contained in the explanatory memoranda or in the parliamentary debates. The New Shorter Oxford English Dictionary defines `honour' as `high respect, esteem, deferential admiration; an expression of this; ... a thing conferred or done as a mark of respect or distinction'. (24) The same dictionary defines `honour', when used as a verb, as to `pay respect or do honour to by some outward action; ... regard with honour, respect highly'. (25) With these definitions in mind, the concept of `author's honour', as contained in the legislative definition of `derogatory treatment', ought to be interpreted as the author's entitlement to respect. Additional support for this interpretation can be drawn from the statements of the Attorney-General in his Second Reading Speech that the moral rights provisions acknowledge `the great importance of respect for the integrity of creative endeavour' (26) and that `the main impact of the new legislation will be to ... raise awareness in an educative way of the need to respect the creativity of authors'. (27)

B Meaning of `Author's Entitlement to Respect'

1 Legislative Link between the Right of Integrity of Authorship and Author's Honour or Entitlement to Respect

The Australian moral rights legislation provides that the author's right of integrity of authorship in respect of his or her work is the right not to have the work subjected to derogatory treatment. (28) Derogatory treatment is effectively constituted by the doing of anything in relation to the work that is prejudicial to the author's honour or reputation. (29) Therefore, the protection of the author's honour is, according to the Australian moral rights legislation, a right of integrity of authorship in respect of the author's work. Consequently, the concept of the author's entitlement to respect (which is the submitted meaning of `author's honour') needs to be interpreted consistently with the protection of it being a right of integrity of authorship. Therefore, an interpretation of `author's entitlement to respect' requires one to analyse the meaning of `right of integrity of authorship in respect of the work'.

2 Meaning of `Authorship in Respect of the Work'

There is no provision in the Australian moral rights legislation defining `authorship'. According to The New Shorter Oxford English Dictionary, the suffix `-ship' is defined as `denoting a ... state or condition'. (30) Therefore, `authorship' is the condition or state of being an author. According to The New Shorter Oxford English Dictionary, an `author' is `a person who originates, invents, gives rise to, or causes something'. (31) Therefore, `authorship in respect of the work' is the condition or state of being an originator (or creator) in respect of the work. In other words, `authorship in respect of the work' is the act of creating the work. (32) It can also be referred to as the author's role as author of the work or, in more abbreviated language, the author's authorial role. As the `author's act of creating the work' and the `author's authorial role' (that is, the `author's role as author') constitute the same activity, these phrases will be used interchangeably in this article to describe the author's `authorship in respect of the work'.

3 Meaning of `Integrity'

`Integrity' is not defined in the Australian moral rights legislation. The New Shorter Oxford English Dictionary's definitions of `integrity' are:

1 The condition of having no part or element taken away or lacking; undivided state; completeness. 2 The condition of not being marred or violated; unimpaired or uncorrupted ... 3 ... soundness of moral principle; the character of uncorrupted virtue...