Integrity, attribution, and exploitation : contractual and normative moral rights protection in open licensing

Over the last twenty years, the use of open content licenses has become increasingly and surprisingly popular. The use of such licences challenges the traditional incentive-based model of exclusive rights under copyright. Instead of providing a means to charge for the use of particular works, what seems important is mitigating against potential personal harm to the author and, in some cases, preventing non-consensual commercial exploitation. It is interesting in this context to observe the primacy of what are essentially moral rights over the exclusionary economic rights. The core elements of common open content licences map somewhat closely to continental conceptions of the moral rights of authorship. Most obviously, almost all free software and free culture licences require attribution of authorship. More interestingly, there is a tension between social norms developed in free software communities and those that have emerged in the creative arts over integrity and commercial exploitation. For programmers interested in free software, licence terms that prohibit commercial use or modification are almost completely inconsistent with the ideological and utilitarian values that underpin the movement. For those in the creative industries, on the other hand, non-commercial terms and, to a lesser extent, terms that prohibit all but verbatim distribution continue to play an extremely important role in the sharing of copyright material. While prohibitions on commercial use often serve an economic imperative, there is also a certain personal interest for many creators in avoiding harmful exploitation of their expression – an interest that has sometimes been recognised as forming a component of the moral right of integrity. One particular continental moral right – the right of withdrawal – is present neither in Australian law or in any of the common open content licences. Despite some marked differences, both free software and free culture participants are using contractual methods to articulate the norms of permissible sharing. Legal enforcement is rare and often prohibitively expensive, and the various communities accordingly rely upon shared understandings of acceptable behaviour. The licences that are commonly used represent a formalised expression of these community norms and provide the theoretically enforceable legal baseline that lends them legitimacy. The core terms of these licences are designed primarily to alleviate risk in sharing and minimise transaction costs in sharing and using copyright expression. Importantly, however, the range of available licences reflect different optional balances in the norms of creating and sharing material. Generally, it is possible to see that, stemming particularly from the US, open content licences are fundamentally important in providing a set of normatively accepted copyright balances that reflect the interests sought to be protected through moral rights regimes. As the cost of creation, distribution, storage, and processing of expression continues to fall towards zero, there are increasing incentives to adopt open content licences to facilitate wide distribution and reuse of creative expression. Thinking of these protocols not only as reducing transaction costs but of setting normative principles of participation assists in conceptualising the role of open content licences and the continuing tensions that permeate modern copyright law.

The garden of Australian dreams: The moral rights of landscape architects

This article considers the moral rights controversy over plans to redesign the landscape architecture of the National Museum of Australia. This dispute raises issues about the nature and scope of moral rights; the professional standing of landscape architects; and the culture wars taking place in Australia. Part 1 considers the introduction of the Copyright Amendment (Moral Rights) Act 2000 (Cth), with its special regime for architecture and public sculpture. It focuses upon a number of controversies which have arisen in respect of copyright law and architecture - involving the National Gallery of Australia, the National Museum of Australia, the Pig ’n Whistle pub, the South Bank redevelopment, and the new Parliament House. Part 2 examines the dispute over the Garden of Australian Dreams. The controversy is a striking one - as the Australian Government sought to subvert the spirit of its own legislation, the Copyright Amendment (Moral Rights) Act 2000 (Cth). Part 3 engages in a comparative study of how copyright law and architecture are dealt with in other jurisdictions. In particular, it considers the dual operation of the Architectural Works Copyright Act 1990 (US) and the Visual Artists Rights Act 1990 (US) and a number of controversies in the United States - over the Tilted Arc sculpture, a Los Angeles tower block that appeared in the film Batman Forever, a community garden mural, a sculpture park, and the Freedom Tower.

Damned to fame: The moral rights of the Beckett estate

The Company B production of Samuel Beckett's Waiting for Godot raises important questions about copyright law, moral rights, and dramatic works. The playwright's nephew and executor, Edward Beckett, threatened to bring a legal action against the Sydney company for breach of contract on the grounds that unauthorised music appeared in the production. The Company B production denied that the contract made any such express provisions. The director Neil Armfield complained: 'In coming here with its narrow prescriptions, its dead controlling hand, the Beckett estate seems to me to be the enemy of art'. In the biography Damned to fame, James Knowlson documents a number of other proceedings taken by Beckett and his agents to control the productions of his work: 'He was often represented as a tyrannical figure, an arch-controller of his work, ready to unleash fiery thunderbolts onto the head of any bold, innovative director, unwilling to follow his text and stage directions to the last counted dot and precisely timed pause.' However, Knowlson notes that Beckett was inconsistent in his willingness to use legal action: 'It made a tremendous difference if he liked and respected the persons involved or if he had been able to listen to their reasons for wanting to attempt something highly innovative or even slightly different'. Famously, in 1988, Beckett brought legal action against a Dutch theatre company, which wanted to stage a production of Waiting for Godot, with women acting all the roles. His lawyer argued that the integrity of the text was violated because actresses were substituted for the male actors asked for in the text. The judge in the Haarlem court ruled that the integrity of the play had not been violated, because the performance showed fidelity to the dialogue and the stage directions of the play. By contrast, in 1992, a French court held a stage director was liable for an infringement of Beckett's moral right of integrity because the director had staged Waiting for Godot with the two lead roles played by women. In 1998, a United States production of Waiting for Godot with a racially mixed cast attracted legal threats amid accusations it had 'injected race into the play'. In the 2000 New York Fringe Festival, a company made light of this ongoing conflict between the Beckett estate and artistic directors. The work was entitled: The complete lost works of Samuel Beckett as found in an envelope (partially burned) in a dustbin in Paris labelled 'Never to be performed. Never. Ever. EVER! Or I'll sue! I'LL SUE FROM THE GRAVE!'. The plot concerned a fight between three producers and the Beckett estate. In the wake of such disputes, Beckett and later his estate sought to tighten production contracts to state that no additions, omissions or alterations should be made to the text of the play or the stage directions and that no music, special effects or other supplements should be added without prior consent.

Moral rights and their application in Australia: a book review

In Moral Rights and Their Application in Australia, Maree Sainsbury offers a summary of the new moral rights regime established in Australia in 2000. It is a decent guide and handbook to moral rights for legal practitioners, the authors of copyright work, and the users of copyright material. As the author notes: "The Australian moral rights legislation impacts on the rights and obligations of many people in diverse circumstances, from the creator of a highly unique work of art to the designer of a web site incorporating factual information or graphics which someone else has created. Any person creating or dealing with copyright material should be aware of the moral rights implications. This book provides a detailed analysis of the moral rights legislation, while stressing the fundamental provisions. It also provides some useful practical guidance for those who are affected, both in general terms and with respect to the more specific situations outlined above." Maree Sainsbury provides an enjoyable account of the history and nature of moral rights. She charts the romantic, Continental origins of moral rights, and explains their translation to countries, such as Australia and the United States.

Moral rights and OER essentials

Provides publishers of open educationalxresources (OERs) with a summary of when and how moral rights impact on the creation of OER. JLL