Module 9 - Copyright: Moral and Performers Rights Flashcards
ERMI
Electronic Rights Management Information
Electronic information (includes numbers and codes) which is either attached/embodied in the copyright material; or appears in connection with a communication
This information can identify the work/subject matter and author/owner; or identifies or indicates the terms and conditions or use
s116B
The owner/licensee may bring an action against a person who removes or alters ERMI
Without permission; and
The person knew (or ought reasonably to have known) that the removal would induce, enable, facilitate or conceal an infringement
s116C
Where ERMI has been removed or altered, may bring an action against a person who:
Distributes a copy
Imports into Australia
Communicates a copy of the work to the public
Note: Person must know ERMI has been removed or altered without permission of the owner
s132AQ
Range of criminal offences for: removal/alteration and distribution/importation/communication to the public
TPM
Technological protection measure that prevents, inhibits, restricts acts that compromise copyright:
An access control technological protection measure
Device/product/technology/component/computer program
s116AN(1)
Circumvention of TPM
Where a copyright work or other subject matter is protected by an access control TPM
Owner or exclusive licensee has action against a person who:
Circumvents the access control TPM; and
Knows, or ought reasonably know, that the act would have the circumventing result
s116AO
If the person knows (or ought reasonably know) that the device is a circumvention device - it is an infringement to:
Manufacture or import it
Distribute, provide or communicate to another person; or
Offer to the public
s116AP(1)
Infringement to provide or offer a service to circumvent a TPM
s116AN
Exceptions for TPM: Acts done with permission Interoperability of computer programs Encryption research Computer security testing Online privacy Law enforcement; or National security
Stevens v Kabushiki Kaisha Sony [2005]
“The effect is to extend the copyright monopoly by including… devices which prevent the carrying out of conduct which does not infringe copyright and is not otherwise unlawful”
Moral and Related Rights
Moral Rights (Authors)
Performers Rights
Moral rights
Rights in relation to unauthorised recordings
Economic rights
Resale Royalty Right for Visual Artists
s190
Only individuals have moral rights
Moral Rights
Personal rights belong to authors or creators of copyright material
Right of attribution of authorship
Right not have authorship falsely attributed
Right of integrity - to object to distortions or modifications or derogatory actions
Moral Rights Reasonableness Test
The nature of the work The purpose of the work The manner of the use of the work The context of the work Any industry practice The difficulty or expense incurred in identifying the author Made in the course of employment Made under a contract If the work has more than one author
Perez v Fernandez (2012)
Case pertained to the right of integrity. Court reasoned how the reputation/honour of Pitbull was affected by the action of the df.
“Made it appear that Mr Fernandez was a subject of the song”
“Some listeners would have presumed that the altered section formed part of the authentic, original work and that Pitbull had written and performed it about Fernandez”
“Associations between artists and DJs are highly significant… associations form a central part of their reputation”
s195AT
Exceptions to infringement:
Destroy movable artistic work - if given reasonable opportunity to remove the work
Change, relocate, demolish building with artistic work - provided certain conditions are met (notice)
Remove, relocate site-specific public work - provided conditions are met
Corby v Allen & Unwin (2013)
Facts: Publisher obtained a number of photographs for a book, which were released by the family. The purpose they were originally released was for the press, not for someone to publish a book. Publisher did not provide any attribution to the family.
Argument: Common practice in the industry to not attribute, and difficult to find original author
Decision: Argument was not accepted
Reason: Could have done more to find the author of the works. Also not accepted as “industry standard”, as other images had been attributed to authors.
Meskenas v ACP Publishing (2006)
Facts: Princess Mary was photographed in front of a painting that was published in a magazine. Magazine falsely attributed the artwork to another artist. Correct artist notified publisher about an error regarding the painter of the painting. Took publisher over a year to correct the matter in their painting.
Issue: Did eventually correct the attribution, however took over a year
Decision: Found that they had falsely attributed authorship, and artist received aggravated damages
Performers Moral Rights
Right of attribution of performership
Right not have performership falsely attributed
Right of integrity - to object to distortions or modifications or derogatory actions in relation to the performance
s248A
Performers have the rights to:
Authorise recording, broadcasting and communication of performances
Prevent the copying, sale, distribution or importation
s248G
Performers consent is required for acts including:
Direct or indirect recording
Communication of the performance
Distribution of recording for purpose of trade
s11 - Resale Royalty Right for Visual Artists Act 2009 (Cth)
Only applicable to works created after commencement, and not to first transfer of ownership
s6 - Resale Royalty Right for Visual Artists Act 2009 (Cth)
Right to receive resale royalty on the commercial resale of an artwork
Inalienable right
Last for life of the artist + 70 years
Passing by will/intestacy laws
s18 - Resale Royalty Right for Visual Artists Act 2009 (Cth)
Royalty rate is 5% of the sale price if over $1,000
s20 - Resale Royalty Right for Visual Artists Act 2009 (Cth)
Seller, buyer, professional, and agents jointly and severally liable to pay
