Module 9 - Copyright: Moral and Performers Rights

Question 1

ERMI

Answer 1

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

Question 2

s116B

Answer 2

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

Question 3

s116C

Answer 3

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

Question 4

s132AQ

Answer 4

Range of criminal offences for: removal/alteration and distribution/importation/communication to the public

Question 5

TPM

Answer 5

Technological protection measure that prevents, inhibits, restricts acts that compromise copyright:
An access control technological protection measure
Device/product/technology/component/computer program

Question 6

s116AN(1)

Answer 6

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

Question 7

s116AO

Answer 7

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

Question 8

s116AP(1)

Answer 8

Infringement to provide or offer a service to circumvent a TPM

Question 9

s116AN

Answer 9

Exceptions for TPM:
Acts done with permission
Interoperability of computer programs
Encryption research
Computer security testing
Online privacy
Law enforcement; or
National security

Question 10

Stevens v Kabushiki Kaisha Sony [2005]

Answer 10

“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”

Question 11

Moral and Related Rights

Answer 11

Moral Rights (Authors)

Performers Rights

Moral rights
Rights in relation to unauthorised recordings
Economic rights

Resale Royalty Right for Visual Artists

Question 12

s190

Answer 12

Only individuals have moral rights

Question 13

Moral Rights

Answer 13

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

Question 14

Moral Rights Reasonableness Test

Answer 14

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

Question 15

Perez v Fernandez (2012)

Answer 15

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”

Question 16

s195AT

Answer 16

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

Question 17

Corby v Allen & Unwin (2013)

Answer 17

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.

Question 18

Meskenas v ACP Publishing (2006)

Answer 18

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

Question 19

Performers Moral Rights

Answer 19

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

Question 20

s248A

Answer 20

Performers have the rights to:
Authorise recording, broadcasting and communication of performances
Prevent the copying, sale, distribution or importation

Question 21

s248G

Answer 21

Performers consent is required for acts including:
Direct or indirect recording
Communication of the performance
Distribution of recording for purpose of trade

Question 22

s11 - Resale Royalty Right for Visual Artists Act 2009 (Cth)

Answer 22

Only applicable to works created after commencement, and not to first transfer of ownership

Question 23

s6 - Resale Royalty Right for Visual Artists Act 2009 (Cth)

Answer 23

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

Question 24

s18 - Resale Royalty Right for Visual Artists Act 2009 (Cth)

Answer 24

Royalty rate is 5% of the sale price if over $1,000

Question 25

s20 - Resale Royalty Right for Visual Artists Act 2009 (Cth)

Answer 25

Seller, buyer, professional, and agents jointly and severally liable to pay