The moral rights of authors and performers: an international and comparative analysis

This book is a comprehensive guide to the development and utilization of authorial moral rights across the key jurisdictions of the English-speaking world and in France and Germany. In recent years, the copyright statutes of the common law countries have been expanded by the introduction of provisions dealing with purely authorial rights - moral rights.
The Moral Rights of Authors and Performers discusses the historical development of the rights in Europe, with particular reference to France and Germany, and shows the growth of moral rights theory and legislative coverage up to the late 1930s. During the 1920s the moral rights of authors became the subject of international protection, particularly through the operation of the Berne Convention for the Protection of Literary and Artistic Works. The book explores the adoption of moral rights into this and other international instruments, explaining the functions that moral rights were intended to perform.
The author gives detailed accounts of the operation of moral rights in France and Germany today, addressing both statutory interpretation and doctrinal issues. The provision of case studies gives an impression of the rich jurisprudence associated with the rights in these countries.
The book also contains a detailed discussion of the versions of moral rights that have become entrenched in Canada, the UK, the US and Australia, with each country considered independently. It deals separately with the introduction of the rights into each country and their operation and interpretation by courts and commentators. Material on common law analogues to the rights is provided, which indicates alternative actions that practitioners might take. Problems of cross-jurisdictional legal proceedings (especially arising from technological transfer of information) are also addressed, with moral rights protection elsewhere in the world summarized in tabular form.

Moral rights: a brief excursion into Canadian history

In 1931, Canada was the first of the copyright countries to adopt a moral rights provision, closely modeled on Article 6bis of the Berne Convention, into its legislation. But this was not the first step that Canada had taken towards the legislative protection of moral rights. Not only had certain provisions protective of the non-economic interests of authors been included in the federal Criminal Code and in the legislation of Quebec prior to 1920, but during the 1920s a sustained effort had been made to give these interests more explicit and systematic protection under the Copyright Act. The present article focuses on a series of bills put to the Canadian Parliament from 1924 onwards. Not only would they have provided increased protection for the non-economic interests of authors but they would have given a legislative definition to the term "moral right". These bills, framed in the absence of any influence from Article 6bis, provide a glimpse of what "moral rights" might have been. They support the view that Canada was moving towards the express legislative protection of these rights significantly earlier that is commonly thought.

Appropriation in the name of art: is a quotation exception the answer?

The Australian Law Reform Commission is at present considering the scope of exceptions to copyright infringement. Its consideration will no doubt be influenced to some degree by the outcome in EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (2011) 191 FCR 444; (2011) 90 IPR 50 which concerned the quotation of a musical phrase in a later musical work. This article addresses the problem of creative appropriations and the extent to which a quotation exception, consistent with Art 10 of the Berne Convention, should be incorporated into Australian law. In doing so it considers the practical application of such a quotation exception in European jurisdictions (most notably Germany) and suggests the form in which such an exception might be incorporated into Australian law.

National Australasian Convention, Sydney 1891

Photograph of the delegates of the 1891 Australasian Convention held in Sydney.

What can Australia learn from the Europeans about public participation? Article 6 of the Aarhus Convention and environmental impact statements

The United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) is the only international convention that is exclusively devoted to public participation in environmental matters. Although it is European in origin, much of the detail of the Convention draws upon national environmental legislation, including aspects of the Australian environmental legal system. This article compares the public review provisions relating to environmental impact statements in Australia with Art 6 of the Convention governing "Public Participation in Decisions on Specific Activities". The article finds that much of the Australian laws with some exceptions satisfy the minimum requirements of public participation in Art 6.

Temporary protection and the refugee convention in Australia,Denmark, and Germany

This paper reports on a comparative study of temporary protection (TP) mechanisms in Australia and selected European jurisdictions. Specifically, it analyzes policy developments and trends in the use of TP mechanisms in Denmark, Germany, and Australia through a systematic examination of the evolution of “substitute protection” mechanisms; their implications for “effective protection” and their impacts on key stakeholders. The policy analyses are augmented by interviews and survey questionnaires with key NGO service providers in the three target jurisdictions. The paper argues that the traditional link between Refugee Convention protection and national territorial jurisdiction and responsibility is being undermined by extraterritorial processing and offshoring arrangements.

Therapeutic Jurisprudence, juvenile justice and the UN Convention on the Rights of the Child : do they coexist?

The UN Convention on the Rights of the Child provides children and young people with over 40 substantive rights, the five outcomes of which are living a healthy lifestyle, staying safe, enjoying and achieving, making a positive contribution, and economic wellbeing. Moreover, Article 3 dictates that all organizations concerned with children should work towards what is best of each child. It is not clear how these rights translate to the care of children and young people who come before the courts (particularly those who are subsequently incarcerated). A review of the literature suggests that while best practice guidelines for the treatment and rehabilitation of adult offenders has moved forward, there is little consensus about how this might be achieved for young people. Therapeutic Jurisprudence (TJ) needs to extend beyond its current considerations of the rights of children and young people, and to expand its focus to the extent to which international human rights standards are complied with in the cases of juveniles in the criminal justice system. This presentation will (a) explore the extent to which current practices in juvenile justice are consistent with the UN's Convention and (b) whether the adoption a rehabilitative and treatment approach based on a TJ framework might serve to improve outcomes for young people and ensure their rights are not being violated.

Cultural landscapes in Asia and the Pacific : implications of the world heritage convention

The notion of cultural landscape has been accepted in the World Heritage Convention since 1992 but the adoption for World Heritage inscription is different among regions. This paper aims to address the issues of applying the concept of cultural landscape in Asia and the Pacific. The article first takes an overview of the World Heritage List and current issues related to the cultural landscape. This is followed by a discussion of the cultural landscape by referring to previous studies, with detailed analysis pointing out the major characteristics of the listed cultural landscapes in Asia and the Pacific, which are tabulated using the numerical data. The final discussion concludes by addressing the discourse on applying the World Heritage Convention and the current issues on cultural landscape conservation in Asia and the Pacific.

Global health governance : framework convention on tobacco control (FCTC), the Doha Declaration, and democratisation

Global public health agreements are heralded as a success for the affirmation of the right to health within a complex and contested political landscape. However, the practical implementation of such agreements at the national level is often overlooked. This article outlines two radically different global health agreements: The Doha Declaration on the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement and Public Health; and the Framework Convention on Tobacco Control (FCTC). We identify significant challenges in their implementation, particularly for low and middle income countries. Shifts in the policy network constellations around these two agreements have allowed for some positive influence by civil society. Yet industry influence at the national level constrains effective implementation and those affected by these policies have largely been left on the periphery. The broader provisions of these two agreements have been watered down by vested interests and donor conditions. We advocate for both activist and academic actors to play a significant role in highlighting the consequences of these power asymmetries. Deliberative democracy may be the key to addressing these challenges in a way that empowers those presently excluded from effective participation in the policy process.

The constitution : clarity without convention

The constitution of Timor-Leste defines its type of government as a parliamentary republic, not as semi-presidential, despite common claims to the contrary.

Submission to the New Zealand Parliamentary Inquiry : New Zealand Convention Centre Bill 2013

The Bill outlines the overarching purpose of the NZICC Agreement ‘to provide economic benefits to New Zealanders’. It is really a form of PPP (Public Private Partnership) where the beneficiaries are said to be the Crown and SkyCity but the real payment comes from the losses of the (mainly) community members who will gamble on the expanded facilities outlined in the Agreement. The Howeth International Convention and Exhibition Centre study (2009) established a clear business case for an international convention centre; with an optimistic benefit-cost ratio of 1.433 (which translates into a benefit to the economy of $1.433
for ever $1 spent). Aside from the short-term stimulus to jobs of the construction phase, a convention centre with capacity for 1000 delegates would create about 800 new jobs and attract up to 35 additional conferences of between 150 and 2500 delegates per year (an additional 22,000 additional international visitors and more than 200,000 extra visitor days, worth approximately $85.4 million in tourism-related expenditure per year15. It is therefore questionable as to why this venture needs to be captured by gambling interests, which will also dictate the location. This points to the efficacy of a non-casino provider being able to tender for establishment of an International Convention Centre that could be run profitably without being part of the for-profit model based on expanded gambling machines/revenue.