Australia: Addressing the moral rights of design consultants

In brief - Building owners need to consult original architects if considering renovating, adjusting or demolishing

The practical effect of the moral rights provisions of the Copyright Act 1968 (Cth) is to require building owners to give original architects a seat at the table whenever considering renovating, adjusting or demolishing the structure that sprang from their designs.

Just how far owners are required to go, and precisely what an architect aggrieved about the treatment of his or her legacy can do to thwart their intentions, remains unclear. There has been no superior court consideration of the provisions in the case of building law in Australia.

It is timely to examine these issues. Owners of many buildings completed prior to the enactment of the moral rights provisions in December 2001 (and before they could possibly have been dealt with contractually in the ways suggested in this article) will be considering renovation. Notwithstanding the fact that a building may have been constructed before moral rights had any force in Australia, the provisions will apply to such renovations.

Moral rights provisions of the Copyright Act

The concepts adopted in the moral rights provisions of the Act substantially derive their meaning from the law of copyright.

In the case of a completed building, copyright may inhere in plans produced by an architect and in the structures created in accordance with those plans – provided such plans and structures are original works of the architect and not themselves copies of other material.

If a person, without being the owner or licensee of copyright in a set of plans or in a building reproduces the plans, reproduces the building, creates a building from the plans or creates plans from the building, that person infringes the owner's copyright in those plans or in that building and will be liable to the owner for copyright infringement in accordance with the Act.

Under section 190 of the Act, moral rights in any work in which copyright subsists attach to the author, provided the author is a natural person.

Moral rights only attach to natural persons and are incapable of assignment or devolution by will under section 195AN(3). Where a work is the product of one or more authors, moral rights apply jointly to each author. Any consent of one author to engage in conduct which might infringe that author's moral rights does not affect the moral rights of another joint author (see section 195AZI).

Other than moral rights in respect of a film, moral rights subsist for the same period as copyright, namely, until 70 years after the end of the calendar year in which the author died (see section 33). Upon the death of the author, moral rights may be exercised by the author's legal personal representative.

Moral rights fall within two broad categories:

• the right of attribution of authorship (including the right not to have a work falsely attributed); and
• the right of integrity of authorship.

Author's right of attribution

The right of attribution of an author is the right to be identified as an author of the work. The obligation arises under section 194(2) if any of the following acts are undertaken in respect of the work:

• reproducing the work in material form;
• publishing the work;
• exhibiting the work to the public; or
• communicating the work to the public.

Whilst such a test could be readily satisfied in the case of a set of architectural plans, in the case of a building, the section, in particular, the words "a person acquiring the reproduction", do not make much sense. Does it mandate a plaque at the entrance to every home, identifying the members of the design team who prepared the original plans? A plain reading of the legislation would make it appear so.

Author's right of integrity

The right of integrity is easy to define but difficult to apply. Section 195AI of the Act states:

1. The author of a work has a right of integrity of authorship in respect of the work.
2. The author's right is the right not to have the work subjected to derogatory treatment.

" Derogatory treatment" is further defined in the following terms in section 195AK:

Two questions immediately arise. Is the demolition of a building invariably prejudicial to the honour or reputation of its architect? And how would a court evaluate whether an alteration to a building is prejudicial to the "honour or reputation" of its architect?

Neither of these questions has been the subject of judicial comment in this context.

When is derogatory treatment permissible?

Section 195AS(2) of the Act identifies a non-exhaustive list of matters to be taken into account when determining whether derogatory treatment was reasonable.

Provided that the owner of the building complies with the procedure identified in the section below about the consultation process, such acts will be deemed not to infringe an author's right of integrity.

The consultation process

The process, in summary form, is as follows:

• after having made reasonable inquiries, the owner cannot discover the identity and location of the author or a person representing the author or of any of the authors or a person representing the authors, as the case may be; or (having identified the author(s)),
• the owner has, before the change, relocation, demolition or destruction, given the author(s) a written notice stating the owner's intention to carry out the act; and
• the written notice stated that the author may, within three weeks from the date of the notice, seek to have access to the building, either for the purpose of making a record of the work, or for the purpose of consulting in good faith with the owner about the change, relocation, demolition or destruction, or for both of these purposes; and
• the notice contained such other information prescribed by the Copyright Regulations 1969 (Cth); and
• where the author notifies the owner within the three-week period that he or she wishes to have access to the building for either or both of the purposes referred to above, the owner has given the person a reasonable opportunity within a further period of three weeks to have such access; and
• where in the case of a change or relocation, the author notifies the owner that he or she requires the removal from the building of the author's identification as the author of the work – the owner has complied with the requirement.

Consulting in good faith

The courts have thus far not considered what "consult in good faith" under the Act actually means.

It is suggested that "consulting in good faith" will at least involve:

• providing sufficient details of the proposed works to enable the original authors to engage in a meaningful dialogue about them;
• actively listening to the suggestions made by the original author(s);
• responding to the suggestions made by the original author(s); and
• accommodating the suggestions of the original author(s) where it is, in all circumstances, reasonable to do so.

What constitutes "sufficient details"?

It follows from the foregoing that sufficient information about the proposed works needs to be included to enable the moral rights holder to engage meaningfully in the consultation process. Admittedly, what would constitute "sufficient" would be a matter of judgment on a case by case basis.

Amendments to the proposed works after consultation

This is a further area in which the legislation provides little guidance.

It would be prudent practice on the part of an owner to at least provide the holder of moral rights with a further notice in the event that material changes to the proposed works were contemplated after the completion of any initial consultation under the Act.

Is the holder of moral rights entitled to remuneration for engaging in the consultation process?

Neither the Act nor the Regulations make any provision for remuneration to the moral rights holder for his or her participation in the consultation process, so there is no recognised entitlement for the moral rights holder to be compensated for participation in this process.

Contracting out of the moral rights provisions of the Copyright Act

It is possible to contract out of the operation of the moral rights provisions of the Act. Indeed, many contracts now contain such provisions. However, clear words consenting to the doing of the very thing that may infringe are required in order to satisfy the requirements of section 195AWA, and the consent must be in writing.

Each holder of moral rights in respect of the building must be identified for the purpose of the notice under section 195AT(3) and, where contracting out is contemplated, enter into an agreement to contract out.

For parties entering into contracts with designers, it is strongly recommended that the contracts contain express provisions which comprehensively address moral rights issues.

Andrew Murray
asm@cbp.com.au
Construction and engineering law, major projects, infrastructure and risk
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.