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May 17, 2019

This is an excerpt from a past issue of InkSpot, the ACA’s quarterly magazine. To read current InkSpots, you’ll need to get a copy by joining the ACA, either as an Associate or Full Member.

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It took the English to invent copyright and so find a way for creative people to make money from their activities, but it took the French to add a new kind of artistic control, which they gave the rather grand title of "moral rights".

Copyright first arose from the Crown's ability to sell the exclusive right to print books. During Elizabethan times, this was a handy way to raise finances and augment the income from raiding Spanish (and, no doubt coincidentally, French) ships, to fund government enterprises such as wars and other socially desirable programmes. Copyright was all about money and nothing to do with "art" in the modem sense, which was reflected in the way it developed over the next two centuries. It took roughly that long for the concept to become one in which individuals acquired "copyrights" in the modem sense. In the meantime, the idea of "copyright" was adopted by most of the countries in western Europe, particularly during the fit of social- engineering which followed the French Revolution.

When the French adopted copyright, they added an interesting quirk of their own. In effect, they extended the concept beyond merely giving the owner the right to decide if and how their works were to be reproduced. The French gave the creator (who might not always be the same person as the owner, since for example, copyrights in works can be sold or works can be created by employees) the right to control "how" their works were reproduced as well. This right extends for the life of copyright.

Remarkably, in 1987, the English Copyright Act was substantially re-written and, for the first time, "moral rights" were included in copyright in the U.K. This reflected the intention in various international conventions (particularly a treaty known as the Berne Convention, which dates from just before the turn of this century and to which the U.K. is a signatory) that countries which belonged to those conventions would make their own laws consistent with the convention's aims of having moral rights recognised. Australia is a signatory to the same convention - more on that in a minute.

Basically, "moral rights" are:

(i) the right to be identified as the creator. In Australian law at present, there is a right to prevent false attribution, but not the right to insist that the name appear, except if a work is used for "fair dealing".

(ii) the right to prevent "unjustified modifications" to the work. This is obviously a fundamentally different kind of right to those presently recognised in Australian law, because it can give artists the right to prevent their works being debased, mutilated or cropped in an unsympathetic way.

If the U.K. action was unexpected, the USA's was even more so. The USA is not a signatory of the Berne Convention, but the general recognition of intellectual property rights finally convinced them to join and, in an unexpected move only last year, Edward Kennedy forced legislation through which will give moral right to those coming within USA law. The way the law was forced through is wonderful - George Bush was opposed to the moral rights Bill, but he needed to have an enormous budget allocation approved by Congress in order to appoint a lot of new judges. Congress agreed to appropriate the funds but only if the law included a moral rights section! Bush needed the money more than he disagreed with moral rights, so ...

Meanwhile in Australia, the debate goes on. There was a Copyright Law Review Committee appointed only a few years ago to consider the introduction of moral rights laws in Australia. The Committee narrowly (3 to 4) voted against moral right, but the minority view was strongly argued and it seems safe to say that the debate will continue. As world opinion changes, it becomes more and more likely that moral rights will be introduced here.

For visual artists, moral rights reduces the likelihood of their works being chopped and changed by thoughtless (or worse still, deliberate) acts of others. It will help preserve the artistic integrity of the works, even if they had been sold, assigned or otherwise disposed of. At present artists can impose restrictions upon the way a work may be used, but only by contract - i.e. conditions imposed as a part of the contract under which the copyright is assigned or licensed. Moral rights exist whether or not there is a contract between the artist and the copyright owner.

As a logical development, there is a growing call for imposition of royalties when/if artworks are sold subsequent to the first sale by the creator/artist. This is a vexed area and not one likely to be resolved for quite some time. Watch this space.

Colin Seeger is a partner in the legal firm of Simpsons Solicitors. This is his first article for INKSPOT.

INKSPOT Number 21 Spring / Summer 1992

This is an excerpt from a past issue of InkSpot, the ACA’s quarterly magazine. To read current InkSpots, you’ll need to get a copy by joining the ACA, either as an Associate or Full Member.

Find out more about joining the ACA