Last updated 16 August 2022
The legislation does provide for some defences or excuses for infringement of moral rights. These include situations where:
- the person’s action or omission was reasonable
- the creator consented in writing to the person’s action or omission
- a special exception to infringement applied.
A defence to an alleged infringement of the rights of attribution or integrity is that the act or omission was reasonable in all the circumstances. The Copyright Act 1968 (Cth) (Copyright Act) provides guidance to courts by listing the matters to be considered when determining whether the act or omission was reasonable (ss 195AR–AS). These include:
- the nature of the work
- the purpose, manner and context for and in which the work is used
- any practice in the industry in which the work is used that is relevant to the work or the use of the work
- any practice contained in a voluntary code of practice in the industry in which the work is used that is relevant to the work or the use of the work
- any difficulty or expense that would have been incurred as a result of identifying the author, whether the work was made in the course of the author’s employment or under a contract by the author for the performance of services for another person
- views of other authors and their views on the alleged infringement.
A key limitation of the moral rights regime is that authors are able to consent to their moral rights being infringed (ss 195AW–AWA Copyright Act). That is, it is possible for authors to agree not to take legal action if their moral rights are infringed. The Copyright Act requires that a creator specifies, in writing, the acts or omissions, or specifies classes or types of acts or omissions to which the consent relates. Consent has to be a genuine consent and will have no effect if procured through duress or false and misleading statements (s 195AWB Copyright Act).
Special exceptions to infringement
There are special exceptions to infringement in the moral rights provisions including:
- destruction of a moveable artistic work if the person who destroyed the work gave the author, or a person representing the author, a reasonable opportunity to remove the work from the place where it was situated
- relocation, demolition or destruction of a building if the owner of the building, after making reasonable enquiries, cannot discover the identity and location of the author or a person representing the author, or has complied with written notice requirements in the Copyright Act stating the owner’s intention to carry out the change, relocation, demolition or destruction
- restoration or preservation of a work in good faith (s 195AT Copyright Act).