Dead loss: damages for posthumous breach of the moral right of integrity.

• Jurisdiction: Australia
• Date: 01 August 2016
• Author: McCutcheon, Jani

CONTENTS I Introduction II Relevant Statutory Provisions A The Moral Right of Integrity and Its Post-Mortem Reach B Remedies Include Damages III The Purpose of Posthumous Moral Rights A Background B Protection of Personality Interests C Protection of Economic Interests D Protection of Societal Interests IV Questions Concerning Posthumous Loss A The Meaning of 'Loss' B Does 'Loss' Mandate Compensatory Damages? C Must Loss Be Experienced? 1 Vindicatory Torts 2 Damages for Loss of Amenities of Unconscious Plaintiffs D Loss Experienced by Third Parties V Causation: 'Loss Resulting from the Infringement' A Posthumous Prejudice to Reputation B Posthumous Prejudice to Honour VI Non-Compensatory Damages A Restitutionary Damages B Exemplary Damages VII Reform Suggestions A Statutory Clarification of Posthumous Damages B Severance of the Honour or Reputation Limb VIII Conclusion I INTRODUCTION

[I]t is a somewhat strange form of compensation which is neither received by the person entitled to be compensated nor even awarded to him or her in his or her own right. Money can do little to ease the path of a departed soul. (1) This article explores the remedy, principally under Australian law, of damages for the posthumous breach of an author's moral right of integrity. In Australia, the moral right of integrity is conferred by the Copyright Act 1968 (Cth) and prohibits certain acts done in relation to an author's copyright work or film which are 'prejudicial to the author's [or maker's] honour or reputation'. (2)

The author's moral right of integrity extends for 70 years after their death, (3) thus usually enduring longer in death than in life. The author's legal personal representative may exercise the author's moral rights after the author's death. (4) Remedies for infringement include 'damages for loss resulting from the infringement'. (5) Yet, while a suite of remedies is available for breach of moral rights, including injunctions, declarations and apologies, (6) this article focuses on damages. The critical issue explored in this article is whether substantial damages can be awarded for posthumous breach of the moral right of integrity. (7) Declarations and apologies have little utility to the dead. Injunctions are useful in preventing a breach, and mandatory injunctions may restore damaged works. However, after harm has occurred, substantial damages may be required to justify the expense and risk of litigation, mark the wrong and signal the serious consequences of posthumous moral rights infringement. Without substantial damages awards, posthumous moral rights may effectively be hollow.

The author argues that the primary purpose of moral rights is generally accepted to be the protection of an author's personality as expressed in his or her works. (8) However, this is incoherent in the case of the dead. While an author's personality may, after death, still be discernible in his or her works, the dead, being dead, have no personal interests which can be harmed, and they cannot suffer loss. The most sensible justification for a posthumous moral right of integrity is the protection of the public's interest in its cultural heritage. (9) Both posthumous rights and remedies complement this purpose. However, this objective may be frustrated by a number of obstacles to posthumous damages awards.

Most damages awards are compensatory. The Act permits 'damages for loss'. (10) This suggests that moral rights damages are also intended to be compensatory, prompting the confounding question of whether the dead can suffer a 'loss'. (11) How can the deceased be harmed without experiencing that harm? Can the deceased even 'exist' as a subject of harm? Even under the most liberal interpretation of 'loss, the dead cannot be compensated, because they are dead. They do not exist as a subject, they no longer have protectable interests, and they can neither experience prejudice to their reputation or honour or other consequential loss, nor be 'made whole' by an award of damages. Likewise, aggravated damages are misaligned with posthumous damages, because the dead cannot be aggravated. This article examines whether analogies can be made with torts that are actionable per se, which sometimes generate non-nominal damages in the absence of obvious loss. It also contemplates cases where damages for lost amenities have been awarded on an objective basis to unconscious plaintiffs, despite them not experiencing harm. And it examines cases where third parties have been awarded damages, notwithstanding that they have not personally suffered loss. These analogies are ultimately fragile, due primarily to the significant differentiating factor of the author's death. The result is that compensatory damages are incongruous in a posthumous moral rights scheme. If the dead cannot suffer loss, has Parliament legislated a puzzle by giving them rights that are, practically, ineffectual? Does death fetter the efficacy of posthumous moral rights by denying significant damages due to the apparent conundrum that the dead cannot suffer loss?

A further impediment to posthumous compensatory damages is the difficulty of establishing a causal link to the loss under the current statutory structure. Loss must '[result] from the infringement'. (12) Infringement occurs when a work is subjected to derogatory treatment, (13) which requires conduct that is 'prejudicial to the author's honour or reputation. (14) While it isn't necessary to demonstrate actual prejudice to reputation or honour to establish a cause of action, (15) it may be necessary to receive damages. While an objective conception of reputation could permit actual prejudice to the reputation of the dead, the dead cannot be harmed by an injury to them; thus, there cannot be a loss. Because honour is subjective, posthumous prejudice to honour is impossible.

If compensatory damages appear impossible, this leaves noncompensatory damages as a possible basis for posthumous awards. These also face impediments, but less serious than those posed by compensatory damages. Restitutionary damages would be limited to rare instances when the wrongdoer benefits from a breach of the integrity right. Exemplary damages complement posthumous moral rights because they punish the living rather than compensating the dead, function as a deterrent against wrongs and protect the public interest in preserving cultural heritage. However, exemplary damages generally require the defendant to show contumelious disregard for the plaintiff's rights, a high standard of wrongdoing which will still leave many moral rights breaches uncondemned. (16)

The existing posthumous moral rights scheme thus militates against the primary objective of posthumous moral rights, which this article suggests is the protection of the public interest in private works. There is a loss when the works of authors are harmed after their death, but it is suffered by society, not the author. After the author's death, the focus must be on the work, not the author's interests. This article therefore advocates statutory reform that severs the link between the author's honour and reputation and the loss, and relaxes the exemplary damages standard of contumelious disregard in order to expand posthumous damages awards beyond exceptionally serious cases.

This article is structured as follows. Part II briefly outlines the relevant statutory provisions. Part III explores the background to the introduction of moral rights in Australia, and the purpose of posthumous moral rights. Part IV discusses the possibility of compensatory damages for infringement of the deceased author's moral right of integrity. Part V explores the posthumous implications of the causative requirement of conduct which is 'prejudicial to honour or reputation'. Part VI considers the possibility of non-compensatory damages as a posthumous award for infringement of the deceased author's right of integrity. Part VII suggests reforms which may enhance the possibility of substantial, non-nominal posthumous damages awards. Part VIII summarises the main points of discussion and conclusions.

II RELEVANT STATUTORY PROVISIONS

A The Moral Right of Integrity and Its Post-Mortem Reach

The author of a copyright work has 'a right of integrity of authorship in respect of the work', (17) which is 'the right not to have the work subjected to derogatory treatment.' (18) Derogatory treatment means 'the doing, in relation to the work, of anything that results in a material distortion of, the mutilation of, or a material alteration to, the work', (19) or 'the doing of anything else in relation to the work that is prejudicial to the author's honour or reputation. (20) It is not an infringement of the integrity right if the defendant establishes the derogatory treatment was reasonable in all the circumstances. (21)

The moral right of integrity endures until copyright ceases to subsist in the work, (22) which is 70 years after the death of the author in the case of published works, (23) and 70 years after the first act of publication in the case of works unpublished at the author's death. (24) Moral rights cannot be transmitted by will. (25) After the author's death, 'the author's moral rights ... may be exercised and enforced by his or her legal personal representative', (26) who is likely to be the author's executor. (27)

B Remedies Include Damages

The relief that a court may grant for infringement of a moral right includes 'damages for loss resulting from the infringement'. (28) In exercising its discretion as to the appropriate relief to be granted, the court may take into account a number of considerations. (29) Some are irrelevant to the integrity right, (30) or may prove problematic in a posthumous context. (31)

Any damages recovered by the author's legal personal representative 'devolve as if they formed part of the author's estate and as if the right of action in respect of the doing of the act had subsisted, and...