LEGALLY SPEAKING - Paul Sugden

Moral rights and the textile worker

Recent changes to the copyright act have meant the inclusion of moral rights within the copyright legislation. This has been a long, hard fought battle that started in the beginning of the 1980's with moral rights finally being introduced into legislation in 2000 - which came into force in March of 2001.

So what are moral rights and what is their impact for the creative textile worker? Moral rights originated from French law and are additional personal rights given to the creator, separate to the economic rights of reproduction. The moral rights given to individual creators are the right of integrity, and the right to attribution or authorship.

The aim of this article (and the next) is to provide some guidelines on the issue of this new area of moral rights, where there have not been any decisions on the legislation as yet.

The essence of moral rights is that the creator should be able to protect his/her reputation in connection to their work. Moral rights are given to individual creators not to a company. These rights mean creators can take action if they are not attributed or accredited for their work; or their work is falsely attributed to someone else or their work has been treated in a derogatory way.

For the creative textile person these rights will relate to materials that come within the format of written material or artistic, dramatic and/or musical works. For example a mural at Long Bay gaol in Sydney was attributed to an inmate and was presented in a TV documentary, whilst at the same time photographs were being show in Darwin where another person was claiming` to be the creator of the mural. If the inmate had been aware of the acts of the presenter in Darwin an action could now ensure under the moral rights to prevent the false attribution of the work by the person in Darwin.

Another example - the fact that a carpet is attributed to one creator, when in fact it is created by another means that an action for rectification and correct accreditation would be available.

This right to attribution as seen in the examples means there is a right to be known as the creator of the work and a right to prevent the false attribution. Let's say Esmerelda, a weaver makes a hanging entitled "Life such as it is" for a local city council meeting chamber, and the wall notice plaque attributes the hanging to Haakon, a rival weaver. In this situation Esmerelda would have an action against the local council, which would be solved by an apology and the rectification of the nameplate on the wall. She may also claim damages as compensation if the situation were to continue for a substantial period.

The creator may stipulate the form of notice and the way they wish to be acknowledged in the notice if there is an agreement between parties. This right of attribution applies to all works including computer programs except films - as well, this right applies to all works protected by copyright and existing on the 21 December 2000 and to all future works including films created after that time.

Does this right exist for a work that is only transitory and that does not exist for along period of time? For example, a student of the Victorian College of the Arts made a temporary sculpture by dressing a birch tree in a wedding dress with veil (the tree had branches placed at appropriate positioning for this to be a life like and dramatic display). A notice was posted indicating it was the work of a final year student and a title was given to the piece. Yet what happens once the work is no longer displayed on the tree? Photographs of the work presented in the future books, pamphlets, etc should contain a statement attributing the work to the creator, but as the work is no long in physical presentation no further attribution should be used.

This is an important issue as the rights of attribution last for the creator's life plus fifty years - which can be a very long time.

The important issue to note is that if a work is being displayed to the public then a notice attributing the creator as the creator should be displayed.

My next column will deal with the right of integrity.