Re: Artistic Works - exclusive rights of copyright owners

On Tue, 22 Nov 1994, Michael Lean wrote:
>
> The exclusive rights given to owners of copyright in _literary_ works
> under the Australian Copyright Act include the right to make an
> adaptation of the work. This right is not extended to owners of
> copyright in _artistic_ works.
>
> Now, can I assume that in the case of an artistic work, "adaptation"
> could be equated with "derivation", and if so, can anyone tell me what
> the intention might be in not granting this right?

"Adaptation" is defined in the Australian Copyright Act to deal with works which are in a different medium to the original work: eg stage versions of a novel. An "adaptation" does not include a version of the first work in the same medium, eg a novel based on a short story. The idea seems to be that making a novel or a play out of a photo or a painting can't really involve copying of it.

> The question is of interest to me because we're struggling with trying
> to develop a policy and code of ethics for dealing with photographs
> produced by uni. staff photographers- given the move towards increasing
> digitization and the ease with which the photographers' clients can
> change or manipulate the image; granted the university owns the
> copyright under either commissioned works or work made for hire, but
> what happens when Moral Rights legislation is enacted and the
> photographer presumably has a non-transferable right of integrity?
>

So far as moral rights legislation goes, the present proposal (it is still a proposal) will not give the actual author an absolute right of veto over all changes to the work by the copyright owner. The idea at the moment is that the creator of a work will have a right of attribution where it is reasonable in all the circumstances of the case, and the author will also have a right to prevent any "derogatory treatment" of his or her work. A derogatory treatment is one that is both unreasonable and is prejudicial to the honour or reputation of the author. The extent of the rights depends on all the circumstances of the case. It is unlikely that there could be derogatory treatment where the artist or photographer is not identified. If there is a substantial reproduction of a part of the photograph through digital means that may be a problem of "ordinary" copyright law.

Although it is proposed that moral rights will not be able to be assigned, it is proposed that the author or artist could waive the rights. At present, this seems to include a blanket waiver of moral rights as a condition of employment of your staff photographers. It also seems likely that the various copyright agencies will be appointed the agents of the creators to exercise moral rights on their behalf.

The University should also bear in mind section 191 of the Copyright Act, which provides that there is a duty owed to the author of a work not to publish or commercially deal with a work as the unaltered work of the author is the person doing so knows that it is not the unaltered work.

One thing that may be of interest for readers of this list familiar with a system of registration of copyright is that the moral rights legislation in Australia is intended to apply to all artistic, literary, musical and dramatic works, and to "cinematograph films". All of these works include works of no genuine artistic quality whatever. Presumeably that will be taken into account in determining whether it is reasonable to attribute to the author and whether a modification is derogatory.

Whatever the position under the Copyright Act, I think the University should take the approach of not substantially amending photographs. There are also laws prohibitting "misleading and deceptive conduct" in general.

Scott Ellis
sellis[_at_]yarrow.wt.uwa.edu.au
Freehill, Hollingdale and Page
17 - 17 William Street
Perth Australia
'phone (619) 327 5813. Received on Wed Nov 23 1994 - 12:14:30 GMT