Nicol, Dianne --- "Book Review - Moral Rights and Their Application in Australia" [2002] JlLawInfoSci 9; (2002) 13(1) Journal of Law, Information and Science 132

• Moral Rights and their Application in Australia

Moral Rights and their Application in Australia

Maree Sainsbury

(Sydney: The Federation Press; 2003) ISBN 1 86287 474 3

234 pgs, Aus RRP $66.00

This is an interesting book on a topic area that is of growing importance in Australia. The author is one of the few Australian experts in the area, having completed her PhD on the topic in 2000. Indeed, it appears that the author’s PhD forms the basis for much of the book. The author has succeeded in providing a lively and practical overview of Australian moral rights law in 202 pages of text. The book also includes appendices setting out current and former moral rights provisions in the Copyright Act 1968 (Cth).

The difficulty for the author and others in providing useful commentary on this area of the law is that there is little or no guidance as to how it will be applied in the Australian context. Moral rights legislation was passed by the federal parliament in 2000 and entered into force late that year. To date there have been no decided cases on the interpretation of any of the provisions, although some reliance can be placed on interpretation of the old ‘false attribution’ decisions and on case law from other jurisdictions. The author makes some use of these decisions in her analysis.

In part, this book provides a practical guide as to how the Australian moral rights legislation may operate both generally and particularly in relation to the works of indigenous authors, digital works and films, and the works of architects, visual artists and performers, with separate chapters on each. Professionals in each of these areas are likely to find the chapters addressing their specific concerns quite useful. However, given that some of these chapters are as short as three to four pages, the guidance they provide is limited. Chapter 10 on moral rights and performers is particularly short. The author could have expanded her analysis with some discussion of the interplay between the performers’ rights provisions and moral rights provisions in the Copyright Act 1968 (Cth).

One of the problems with a book of this nature is that it is difficult to clearly identify its overarching purpose and its intended market. The back cover information for this book states that it is intended for legal practitioners, those who possess moral rights and those who work with material to which moral rights apply. However, this is not always clear in the text of the book. In part the book provides the sort of practical information on the topic that would often be found in fact sheets put out by the Attorney General’s Department and other government agencies to assist non-lawyers in interpreting new areas of law. In other chapters, the book is more in the stye of a standard textbook, providing a summary of the relevant law and some academic commentary. Both approaches make a genuine contribution but to find them in one small book is unusual.

Chapter 1 of the book provides an overview of the history and nature of moral rights. The chapter is split into two parts, the first dealing with the nature of moral rights and the second covering arguments for and against moral rights legislation. I found the structure of this chapter a little difficult to follow. For example, in the part discussing the arguments for moral rights the author reviews the international treaties in the area. This section may have been more properly placed in the part dealing with the historical development of moral rights. Given that some of the other chapters are much shorter, this chapter could easily have been split into two, with the first chapter dealing with the historical development of moral rights and the second presenting the philosophical, economic and other arguments for and against moral rights protection. This latter discussion could have been expanded considerably, with a detailed analysis of the philosophical underpinnings of moral rights. This would have given the book a much stronger position in the academic market and would have provided interesting background information for readers more interested in the practical application of moral rights.

Chapter 2 is another long chapter outlining the moral rights provisions in the Copyright Act 1968 (Cth) as amended by the Copyright Amendment (Moral Rights) Act 2000 (Cth). This chapter also includes a brief summary of the reports and debates leading up to enactment of the moral rights amendments. Given that these debates were so protracted, they may have warranted a separate chapter. Otherwise, this chapter provides a useful summary of the relevant provisions and a comparison of copyright and moral rights. It also provides some discussion of relevant case law.

Chapter 3 discusses how moral rights are protected under other laws. This is an important chapter and the level of detail is clearly warranted. It would have been useful to the reader for the author to provide a synthesis of this analysis at the end of the chapter. In particular, it would have been helpful to provide a table indicating areas of overlap between these laws and the new moral rights provisions and areas where the new provisions fill gaps in existing laws. This analysis could then have been used in subsequent chapters to provide guidance on the extent to which the new provisions create new rights and obligations and/or clarify existing rights and obligations.

From page 95 onwards the book changes focus to the provision of practical guidance on the application of moral rights. It is probably from this point on that the book starts to make an original and useful contribution. I particularly liked the summaries of risk management considerations in the general overview chapter. It would have been helpful to continue with this theme in subsequent chapters. This analysis would also have been strengthened considerably if it related back to the previous discussion of the new provisions and existing laws. I didn’t get a strong feel for which of the risk management considerations resulted from the 2000 amendments and which would have to be taken into account in any case to comply with existing laws. An analysis of this nature would have significantly increased the practical value of this book. To some extent, the analysis of moral rights and indigenous authors achieves this goal, particularly with its discussion of the role of breach of confidence. I would have been interested in a deeper analysis of the implications of the decisions in Foster v Mountford,^[1] Pitjantjara Council Inc v Lowe^[2] and Nationwide Publishing Ltd v Furber.^[3]

Chapter 11 of the book, on international application of moral rights, covers two separate issues: the applicability of Australian law and brief notes on the moral rights laws in some other jurisdictions. As it stands the chapter does not add significantly to previous discussions. It may have been more useful to provide the reader with a table setting out the similarities and differences between these laws, or at least to have some discussion of these matters.

A final chapter tying together the themes of the book and making some predictions as to how moral rights laws may be applied in the future may have been useful to readers. The author might also have provided a final critique evaluating the new provisions and assessing the extent to which they may need to be modified should future opportunities for law reform arise. This comment relates back to the question of the intended purpose of the book.

In terms of structure, most of the chapters include an overview at the start (except, surprisingly, Chapter 4, on the general application of moral rights). Overviews also appear sporadically throughout the book. For example, Chapter 6 on moral rights and digital works has seven overviews spanning its 35 pages, whereas Chapter 1 has three overviews in 30 pages, Chapter 2 has two in 36 pages and Chapter 3 has one in 26 pages. This lack of consistency may be a little confusing for some readers. The difference in length of chapters, the lack of numbering of headings and the division of some, but not all, chapters into parts accentuate this problem and may make it difficult for the reader to follow the natural flow of the book.

The book has some typographical errors. For example, the first line at the top of page 99 states: “2. Where attribution is not desirable or possible, seek the author’s”. The next line appears to have been omitted. Some of the discussion of the relevant law is quite brief and may be a little confusing to some readers. For example, in the discussion of the case law on page 134-135 it is unclear why the author specifically mentions the activities of Dr. Mountford in the case of Pitjantjara Council Inc v Lowe but not in the discussion of Foster v Mountford.

In conclusion, this book provides useful information on the rights and obligations created by laws relating to moral rights protection. For the most part, it adopts a practical approach, which will be helpful for those people seeking assistance on how to implement processes for dealing with the new moral rights provisions. This book is likely to provide a useful springboard for further discussion and writing in the area of moral rights protection. I look forward to a second edition in a few years time once we have had the benefit of some judicial consideration of the new provisions.

Reviewed by Dianne Nicol, Law Faculty, University of Tasmania, Private Bag 89, Hobart, TAS 7001

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^[1] (1976) 29 FLR 233.

^[2] Unreported, VSC, 1982.

^[3] [1984] FCA 104; (1984) 3 FCR 19.