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The Copyright Owner's Rights (2) - Moral Rights

Introduction

The introduction of moral rights into UK law was one of the major new departures in the 1988 Act. In continental Europe the division of authors’ rights into economic rights and moral rights (the first to enable him to earn money, the second to protect his reputation) has long been recognised. Moral rights are generally said to be inalienable: indeed, this is part of their essence. Article 6 bis of the Berne Convention, while it does not say so in so many words, makes it clear that an assignment of copyright does not carry with it any assignment of moral rights:

  • Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation.

  • The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorised by the legislation of the country where protection is claimed. However, those countries whose legislation at the moment of their ratification or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained.

  • The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.

Despite what the Convention says about the rights being inalienable, they simply cannot be so. A right owner can always choose not to exercise it, and even the French courts have been reluctant to accept that moral right must be considered to be completely independent of economic ones. However, the rights cannot be transferred to another: Confetti Records v Warner Music1. It is crucially important to keep concepts of authorship and ownership clearly defined.

Paternity Right

The author of a copyright work and the director of a copyright film have the right to be identified as such2.

Circumstances in which Paternity Right arises

In the case of a copyright literary or dramatic work, the right arises whenever the work is published commercially, performed in public, broadcast, or included in a cable programme service. However, there is a so-called ‘disc jockey’ exception3 which disapplies the right to be identified during a performance, showing, broadcast or ‘cable-cast’ in the case of the author of a literary work comprising words intended to be sung or spoken with music. These works are given the same treatment as musical works.

The right also arises in respect of copies of a film or a sound recording which include the work and which are issued to the public. If any of these acts are in relation to an adaptation of a work - e.g. where a film which has been made from a screenplay adapted from a novel is issued to the public - the author of the original work is entitled to insist on being associated with the adaptation4.

The right also applies in the case of a musical work or of a literary work which consists of lyrics, or spoken words to accompany music, provided that the work is protected by copyright. It arises whenever the work is published commercially, copies of a sound recording of the work are issued to the public, a film of which the soundtrack includes the work is shown in public, or copies of the film are issued to the public. Again, an author has the right to be identified as such on an adaptation of the work5 and has similar rights in relation to an adaptation to those which the author of a literary or dramatic work enjoys.

In the case of copyright artistic works, the artist is given the right to be identified whenever the work is published commercially or exhibited in public6, or a visual image of it is included in a broadcast or a cable programme service. If a visual image of the work is included in a film, the right will arise when the film is shown to the public or copies of it are issued to the public7.

Where the work is a work of architecture in the form of a building, a sculpture or a work of artistic craftsmanship, paternity right arises if a graphic work representing it or a photograph of it is issued to the public8. The architect will therefore have the right to be identified in a book consisting of photographs of buildings. The architect is also given the right to be identified on the first building (but not on subsequent ones) constructed to a particular design9.

A film director is entitled to be identified as such whenever the film is shown in public, broadcast, or included in a cable programme service, or whenever copies of the film are issued to the public10.

The Nature of the Right

The right which is given to the author or director is the right to be identified clearly and reasonably prominently11. The author or director must be named in such a way about bring his or her identity to the attention of the purchasers of copies of the work, viewers of performances, and the like.

In the case of commercial publication, or the issue to the public of copies of a film or sound recording, the author or director has the right to be identified on each copy - e.g. in the case of a book on its cover and in the case of a record on its label. The Act provides that if it is not appropriate to identify the author on each copy, some other manner of identification likely to bring the identity of the author to the notice of a person acquiring a copy is necessary. For example, in the case of a record containing a collection of songs written by different people it may be that there would not be sufficient space on the label to identify all of them and in some circumstances it could be appropriate to identify them instead on the record sleeve.

Where an architect has the right to be identified on a building, the identification is to be by some means which is visible to persons entering or approaching the building. A plaque in an inaccessible spot out of the general view would not serve to bring the author’s identity to the public’s attention.

Section 73 (7)(c) covers any other case, providing that the authors and directors have the right to be identified in a manner likely to bring their identities to the attention of persons seeing or hearing the performance, exhibition, showing, broadcast or cable programme in question. This could be achieved by including their names in the credits, in the printed programme for a performance, or in an exhibition catalogue.

Authors and directors may specify how they wish themselves to be identified: by pseudonyms, initials, or other forms of identification. If they do specify a form of identification, that must be used, but if they do not specify it any reasonable form of identification may be employed. An architect cannot require his or her name to be displayed in gold letters ten feet high. It is the way in which the identification is expressed, not the manner of its presentation, which the author may control.

Exceptions to Paternity Right

There are numerous exceptions to paternity right. To begin with, section 79 describes certain classes of work to which the right does not apply, and also denies the right to employed authors. Then the Act sets out a number of situations, permitted acts for the purposes of economic rights, in which there will be no infringement of the moral rights either.

Parliament did not consider it appropriate to give the author of a computer program or of a typeface the right to be identified. Computer-generated works are also excluded from paternity right, reasonably so since in such a case no human author is involved. Typefaces are created by human beings, but identifying the author on a typeface could be tricky and anyway Berne does not require any action in this area.

Section 79(3) disapplies paternity right where copyright in the work originally vested either in the author’s employer by virtue of section 11(2) or in the employer of a film director by virtue of section 9(2)(a).

Where the right exists, and has been asserted in accordance with section 78, there are certain circumstances in which it is not infringed by acts which would not infringe copyright in the work by virtue of section 79(4):

  • Fair dealing for the purpose of reporting current events by means of a sound recording, film, broadcast or cable programme12. Section 30 specifically provides that no acknowledgements is required in connection with the reporting of current events by means of a sound recording, film, broadcast or cable programme. A similar exception in respect of paternity right is required to avoid that provision being contradicted by the granting of the right to be identified on the work.

  • Incidental inclusion of a work in an artistic work, sound recording, film, broadcast or cable programme. This avoids the possibility of an architect insisting on a credit in a film merely because a building which he has designed appears somewhere in the background of one of the scenes.

  • Examination questions. This paragraph reflects section 32(3) which provides that copyright is not infringed by anything done for the purposes of an examination by way of setting the questions, communicating the questions to the candidates or answering the questions.

  • Parliamentary and judicial proceedings. Section 45 provides that copyright is not infringed by anything done for the purposes of Parliamentary or judicial proceedings, for example quoting a literary work in a written judgement or in a speech in the House of Commons (which will qualify as a literary work because it is transcribed verbatim); the exception ensures that there is no need to identify the author who is being quoted in such circumstances.

  • Royal Commissions and statutory inquiries.

  • Use of design documents and models, and effect of exploitation of a design derived from artistic work. Sections 51 and 52 provide that certain acts relating to designs do not infringe copyright, and these two paragraphs exclude the exercise of paternity right in the same circumstances.

  • Copyright of author presumed to have expired.

There is also a general exception in section 79(5) for any work made for the purposes of reporting current events. This supplements the fair dealing provision referred to above. Publication of a literary, dramatic, musical or artistic work made for publication in a periodical or collective work of reference, or made available for one of these purposes with the consent of the author, is also excluded (section 79(6)). Works in which Crown copyright or Parliamentary copyright subsists, or in which the copyright is owned by an international organisation under section 168, also attract no paternity right, unless in these cases the author has previously been identified as such or on published copies of the work.

Assertion

Section 78(1) provides that there is no infringement of paternity right unless the author or director has asserted it. Assertion may be general or may be in relation to a specific act or description of acts. It may be done in an assignment of copyright by including a statement that the author or director asserts the right to be identified in relation to that work, or it may be made by itself in writing signed by the author or director. It therefore follows that paternity right cannot be asserted collectively, e.g. by a trade union or collecting society.

Assertion may be made at any time. It does not have to be at the same time as the economic rights are assigned. Subsequent exploiters of the work must therefore be on their guard if they do not intend to identify the author or director. However, delay in asserting one’s rights will be taken into account by the court in deciding whether to grant an injunction and to award other remedies13. Cornish asserts14 that: ‘Save in cases of real unscrupulousness, it is hard to imagine that a court would require copies already printed before assertion to be recalled and altered’.

The Requirements of Berne

The Government relied upon the use in Article 6 bis of the Berne Convention of the word ‘claim’ to justify requiring assertion, although it is by no means clear that Berne means that a positive assertion is required before the right can be enforced. It certainly does not require that the claim should be in writing. The Government also relied on the official WIPO guide to the Convention which says of Article 6 bis: ‘This provision enshrines two of the author’s prerogatives: first and foremost, to claim the paternity of his work ... to assert that he is the author.’

Special Rules for Public Exhibition of Artistic Works

Where an artistic work is exhibited in public the paternity right may be asserted by the artist identifying himself or herself on the work itself or on its frame, mount or anything else to which it is attached. The identification may also be on any copy of the work made by the artist or under the artist’s direction or control. The artist’s identity must be attached to it when he or she or the first owner of copyright parts with possession of the original or copy.

The right to be identified on copies exhibited in public can be asserted when a licence to make copies of the work is given by the artist. It may be included in the licence. That assertion will be effective whenever any copy made in pursuance of the licence is exhibited in public.

Assertion on Assignment

Where an assertion is made in conjunction with an assignment, the assignee and anyone claiming through him whether or not he has notice of the assertion will be bound by the assertion. Where the assertion is made by a separate instrument in writing, it will bind any person to whose notice it is brought.

In the case of artistic works exhibited in public, assertion by identifying the author on the work itself will bind anyone possessing the original or copy on which the author is identified, whether or not the original identification is still visible. In the case of a licence for making copies, the assertion will bind the licensee and anyone into whose hands the licensed copy of the work comes, whether or not they have notice of the assertion.

Section 77(8) provides that the author or director in asserting his right may specify the form of identification to be used, and if he does then that form of identification shall be used. If he does not do so it provides that any reasonable form of identification may be used.

Integrity Right

Section 76 of the Act gives authors of copyright works and directors of copyright films the right not to have their work subjected to derogatory treatment.

In this context treatment means any addition to, deletion from, or alteration to or adaptation of the work. It does not include a translation of a literary or dramatic work or an arrangement or transcription of a musical work which involves no more than a change of key or register. Neither of these types of treatment affects the integrity of the work15.

The author’s right is not only to object (as Berne requires) but to prohibit derogatory treatment. The treatment will be regarded as derogatory if it amounts to a distortion or mutilation of the work, or if it is otherwise prejudicial to the honour or reputation of the author or director. The requirement that the act of derogation must be prejudicial to the honour or reputation of the author or director, imposed by Berne, arguably means that the law goes little further than the common law of defamation16. There may however be advantages; as Cornish says:

Defamation is judged by the objective standard of right-thinking members of the community, and not by the sense of injury that the plaintiff suffers; the same is likely to be true of the new right. Defamation, however, concerns personal reputation and there may be matters of professional or artistic integrity which it would be difficult to persuade a court went to personal reputation17.

Consequently, a cartoonist whose work was reproduced in a smaller format than had been authorised had no claim for infringement of his moral right: there was neither distortion of his drawing nor prejudice to his honour or reputation18.

The wording used in the Act closely follows that used in Article 6 bis of the Berne Convention, although Berne does not give distortion or prejudice as alternatives. Rather, distortion is a prerequisite before prejudice infringes the integrity right. But there can be prejudice to the author’s honour or reputation without any distortion or mutilation taking place. This would be covered by the words ‘or other derogatory treatment’ in Berne which do not appear in the Act. Rather, by setting out what amounts to ‘treatment’, the Act is narrower than the Convention.

In the case of literary, dramatic and musical works, integrity right is infringed if a derogatory treatment of the work is published commercially, performed in public, broadcast or included in a cable programme service. It is also infringed if copies of a film or sound recording of, or including, a derogatory treatment of the work are issued to the public. The integrity right of the author of an artistic work is infringed when a derogatory treatment is published commercially or exhibited in public, or when a visual image of a derogatory treatment of the work is broadcast or included in a cable programme service. The right is also infringed by a person showing a film including a derogatory treatment of the work or issuing copies of such a film to the public.

Where the work is a work of architecture in the form of a model for a building, a sculpture or a work of artistic craftsmanship, the right is infringed by anyone issuing copies of a graphic work representing a derogatory treatment of it, or photographs of such a derogatory treatment, to the public. This ensures that an architect can enjoy the right if a book of photographs of his buildings is published.

This does not however apply to a work of architecture in the form of a building, where the right will only permit the architect to insist that her identification is removed from the building when it is altered, so that she is no longer associated with it.

Infringement of the right in a film occurs when a derogatory treatment of the film is shown in public, broadcast or included in a cable programme service, or copies of it are issued to the public. If a derogatory treatment of the soundtrack is played in public, broadcast or included in a cable programme service along with the film, that also infringes the right; and if copies of the derogatory treatment of the soundtrack are issued to the public (apparently irrespective of whether they accompany the film) that is also an infringement. There are no moral rights in sound recordings per se.

Where a work has previously suffered treatment at the hands of someone other than the author or director and parts of the treated work resulting from that treatment are themselves treated in a derogatory fashion, the author or director of the original work can only exercise his integrity right if the subsequent parts which are now suffering derogatory treatment are likely to be regarded as his own work19.

Exceptions and Qualifications

Integrity right does not apply to computer programs or any computer-generated work20, for the same reasons as paternity right does not apply. Nor does it apply in relation to any work made for the purpose of reporting current events in any medium21, in order to ensure that editors are not constrained from modifying the work of journalists; this exemption is particularly important for broadcasters.

The right does not apply where a literary, dramatic, musical or artistic work is published in a newspaper, magazine or similar periodical, or a collective work of reference, if the work was made for the purposes of, or was made available with the consent of the author for the purposes of, publication in that fashion22. Again, publications of this nature would be severely hampered if their editors were not able to amend works produced by freelance contributors.

Where a work made for a different purpose is published in a work of this nature the Act clearly provides that the integrity right will not apply to it; the tailpiece to section 77(4) provides that the reverse is also true, and that where a work originally made for publication in a newspaper etc. is subsequently exploited without further modification in another fashion (e.g. by inclusion in a book) there will be no integrity right in it.

Any acts done on the assumption that copyright has expired, and acts carried out for the purpose of avoiding the commission of an offence, or to comply with a statutory duty, do not infringe the author’s integrity right. This permits broadcasters to make changes so that obscene or violent material does not appear on television.

In the case of the BBC, integrity right is not infringed by its avoiding the inclusion in a programme broadcast by it of anything which offends against good taste or decency or which is likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling23. This special provision was necessary because the BBC operates under Royal Charter, and it maintains standards by resolution of its governors. Other broadcasters have statutory duties and are covered by the preceding subsection.

Where such a modification has been made, and the author or director is identified or has been identified in or on published copies of the work, a sufficient disclaimer must be made. A sufficient disclaimer is defined as an indication that the work has been subjected to treatment to which the author or director has not consented. It must be given at the time of the acts (e.g. the broadcasting of the work) and, if the author or director is identified at that time, it must appear along with the identification. It must also be clear and reasonably prominent.

In addition to these exceptions, integrity right is qualified in certain cases. This applies where copyright vests in the employer of an author or film director, or in the Crown or Parliament or in an international organisation. Authors and directors will enjoy the right if they have previously been identified on a work but there will be no infringement if there is a sufficient disclaimer. This meets concerns that if the right was disapplied for all employed authors and directors, the employee could be identified on work which had been subjected to derogatory treatment and had no remedy.

If a film is cut for showing on television the director should be entitled to a disclaimer if he was identified in the credits. A sufficient disclaimer is defined as a statement that the work has been subjected to treatment to which the author or director has not consented, which is reasonably clear and prominent, made at the time of the relevant act (e.g. when the film is shown on television) and appears along with any identification of the author or director made at that time.

Secondary Infringement.

Possessing or dealing with an infringing article can also infringe the integrity right. Section 79(1) provides that the right is infringed by a person who possesses in the course of a business or deals with an article which he knows, or has reason to believe, is an infringing article. The forms of dealing which are covered by this provision are the same as those referred to in the provisions concerning secondary infringement of copyright (section 23), namely selling or letting for hire, offering or exposing for sale or hire, in the course of a business exhibiting in public or distributing, or distributing otherwise than in the course of a business so about affect prejudicially the honour or reputation of the author or director.

For the purposes of this provision an infringing article means a work or a copy of work which has been subjected to derogatory treatment and has been or is likely to be the subject of any of the acts mentioned in section 76 in circumstances infringing that right.

False Attribution

Section 84 provides that a person has the right not to have a work falsely attributed to him or her. The right covers a false statement about the authorship of a literary, dramatic, musical or artistic work or about the directorship of a film. It makes no difference whether the statement is express or implied. In Moore v News of the World24 the divorced wife of a well-known television and film star had attributed to her an article which appeared in the News of the World about her former marriage. The late Alan Clark MP invoked the provision in his action against the Evening Standard which was running a spoof diary column attributed to him: he also took action for passing off25. To widespread surprise, he succeeded in both claims.

As with secondary infringements of copyright, secondary wrongs under the moral rights provisions of the Act require guilty knowledge. The test is the same as in other provisions of the Act concerning secondary infringements.

Possession or dealing with a literary, dramatic, musical or artistic work or film in the course of a business by a person who knows or has reason to believe that attributions associated with it are false is also an infringement. In the case of an artistic work this also applies to the original work.

The right in an artistic work is also infringed by a person who, in the course of a business, deals with the work or a copy of it knowing or having reason to believe that it has been altered and represents that it is the unaltered work or a copy of the unaltered work of the author. Dealing for these purposes includes selling or letting for hire, offering or exposing for sale or hire, exhibiting in public or distributing.

False Claims about Adaptations

In addition to giving remedies against false attribution of a work, section 80 also gives a right to prevent a false representation that a literary, dramatic or musical work is an adaptation of a work of a particular person, or that a copy of an artistic work was made by the artist.

Right to Privacy

The commissioners of photographs and portraits for money or money’s worth were given the ownership of copyright in the photograph or portrait by section 4(3) of the 1956 Act. This provision was not re-enacted in the 1988 Act. If the Act had been left as it was, there would have been no way in which the commissioner of a set of wedding photographs would be able to stop the photographer selling the pictures to a newspaper if for some reason they became newsworthy.

This would leave commissioners of these works without any right to control their exploitation. These concerns were met by the introduction of a new moral right in favour of the commissioner, while the author retains the economic rights.

Anyone commissioning the taking of a photograph or the making of a film for private and domestic purposes where copyright subsists in the resulting work is given the right not to have the work exploited by:

  • the issue of copies to the public;

  • exhibiting or showing the work in public;

  • broadcasting or including the work in a cable programme service.

Anyone doing or authorising these acts infringes the right. Note that it is the commissioner, not the subject, who is protected.

Duration of Moral Rights

Article 6 bis (2) of the Berne Convention requires that moral rights shall subsist for as long as copyright subsists in the work. Section 82(1) contains exactly this provision as far as paternity right, integrity right, and the right to privacy are concerned.

The rights are exercisable only by the author or director; after that person’s death the moral rights pass with the economic rights. If the author or director no longer owns the copyright in any of his or her works at the time of death, the moral rights attached to those works may themselves be bequeathed.

The right not to have a work falsely attributed survives for 20 years after the death of the person concerned. Section 43(5) of the 1956 Act also provided for this period. By section 94(5), infringement of the right against false attribution is actionable after a person’s death by his representatives. In practice this means that it will usually cease to be effective well before the expiry of 20 years.

Films made before commencement cannot be the subject of the new rights26. Colourisation of old black and white films is unhindered by the right of integrity (though in France one of the few instances of a claim succeeding was brought in such a case by John Huston’s estate).

If an existing work is the subject of an assignment or licence predating the commencement of the Act, which permits freedom of action which would now be subject to the control of the author under the moral rights provisions, then if the author was the first owner of copyright in the work the freedom of action permitted by the assignment or licence continues to apply. If the author was not the first owner of the copyright, anything done with the licence of the copyright owner remains permitted27.

Consent and Waiver

Despite the fact that Berne requires that moral rights be inalienable, and despite the experience of other countries such as France which manage without any similar provisions, the Act permits authors to consent to acts which would otherwise infringe their moral rights, and also allows them to be waived.

Section 83 provides that any of the moral rights conferred by Chapter IV of the Act are not infringed if the person entitled to the right has consented to the act in question. There are no formalities in the Act about the form of a consent, but the Act does prescribe formalities for waivers, which are more general than consents. Where consents relate to particular acts, waivers relate to particular works.

Any waiver of the right must be in writing, signed by the person who is doing the waiving and may relate to a single work, a group of works, or to works generally, may relate to existing or future works, may be conditional or unconditional, and may be expressed to be subject to revocation. It will override any inheritance or bequest28.

Where an author waives the moral rights attaching to a work or works in favour of the owner or prospective owner of the copyright in that work or works, the waiver is presumed to extend to the owner or prospective owner’s licensees and successors in title unless the author expresses a contrary intention. An informal waiver or other transaction relating to moral rights is subject to the general law of contract, and estoppel will continue to apply.

Joint Works

Paternity right belongs to each joint author and must therefore be asserted individually. Integrity right is also the right of each joint author. If a joint author consents to the treatment in question, that satisfies the rights given to him by the Act; however, his consent does not affect the rights of the other co-authors who would still be entitled to exercise their rights in respect of a derogatory treatment.

The waiver by one joint author of any of his moral rights does not affect the rights of the others.

The right against false attribution is infringed in the case of a work of joint authorship by any false statement about its authorship. The false attribution of joint authorship to a work of sole authorship is also an infringement. The rights of every person to whom authorship is attributed, whether or not they were in fact the author or an author of the work, is infringed by either of these species of false attribution.

All these provisions concerning joint works apply similarly to jointly-directed films.

Where a work is commissioned jointly by two or more persons each commissioner has the right to privacy conferred by section 81. The right of each joint commissioner is satisfied if he consents to the Act in question, and if one of the joint commissioners waives his rights, that does not affect the rights of the others.

Parts of Works

Paternity right and the right to privacy apply to the whole work or to any substantial part of it. The integrity right and the right against false attribution apply to the whole or any part of the work, not necessarily substantial.

Droit de suite

Paternity right and integrity right are merely the two moral rights that the Berne Convention insists on being protected. French law knows many more. One of these is the droit de suite, or artist’s resale right, the subject of the directive on the resale right for the benefit of the author of an original work of art (2001/84/EC).

The European Council agreed to the controversial proposal at its meeting on Wednesday, 15 March 2000. But the directive will not come into force until the end of a fifteen year transitional period.

The purpose of the legislation, like much other EC legislation, is to create a single market among the fifteen Member States (plus the three countries that, with the EC, make up the European Economic Area). Introducing lengthy transition periods undermines this goal, and the European Commission has been quick to criticise its political masters for the concession. ‘If you start introducing fifteen-year transitional periods for single market legislation, you are opening a Pandora’s box and will never achieve a fully-functioning single market’, according to a Commission spokesman.

The directive, which is based on the reasonable assumption, supported by history, that artists might sometimes be obliged to part with their work for the price of a meal (or perhaps for the meal itself), provides for artists and sculptors to receive a royalty of up to 4 per cent on the resale of their works for the regular copyright term of seventy years after the creator’s death. The UK opposed it on the grounds that it would lead to a flight of auction business to New York and Switzerland, and previously had threatened to invoke the vital national interest rule to enable it to block the proposal which at that time provided for a five year transition. However, the legislation was passed by a majority of the Member States, with two countries abstaining.

The Artist’s Resale Right Regulations 2006 implement the directive and the option given by Article 14ter of the Berne Convention. The right applies where the resale price is at least €1,000 (the directive permitted a threshold between zero and €3,000) and the rate of royalty is up to 4 per cent. Only living artists benefited from the UK law until 2012 as the government secured a delay in the full implementation of the directive. Since 1 January 2012, however, it has applied to artists whose works remain in copyright.

1[2003] EMLR 790.

2Section 77(1).

3Section 77 (2) and (3).

4Section 77(2).

5ibid.

6This is another point at which moral rights and copyright diverge. Public exhibition of an artistic work is not an infringing act.

7Section 77(4).

8Section 77(4)(c).

9Section 77(5).

10Section 77(6).

11Section 77(7).

12Deciding what amounts to reporting current events is going to raise some fine points. See Associated Newspapers Group plc v News Group Newspapers Ltd (note 124), where the argument that the unlicensed publication of letters between the Duke and Duchess of Windsor was held not to be fair dealing for the purpose of reporting current events notwithstanding that she had recently died. Newspapers enjoy wider exceptions from the right, so will not face this problem.

13Section 78(5).

14(1995) MLR 1.

15But, as Cornish (op cit) observes, ‘of all the ways of misrepresenting an author’s true worth, poor translation must be easily the most frequent occurrence’; and, since the integrity right is to object to derogatory treatment, ‘a key change would have to be in some manner grotesque before the right was offended in the first place and it is only in such a case that the exception has any application.

16See Cornish (op cit). He states that this consideration was significant in leading the Australian Copyright Law Review Committee not to recommend the introduction of specific moral rights. See the Report on Moral Rights, 1988, and Vaver, (1988) Monash ULR 284.

17Op cit.

18Tidy v Natural History Museum (1995) IPR 501, [1996] EIPR D-81, and here, and see also Pasterfield v Denham [1999] FSR 168..

19Section 80(7).

20Section 81(2).

21Section 81(3).

22Section 81(4).

23So Frisby v BBC [1967] 2 All ER 106, would not be decided differently under the new law, although it finally turned on a point of contract law anyway. In that case, the BBC removed the words ‘standing up’, which were claimed by the author to be crucial, from a line in a play it was making. The context made plain which activity in a standing position was being referred to. The author’s contract allowed the BBC to make alterations of some substance, but the court was ready to imply a term limiting this right. The plaintiff convinced the court of the importance of those two words and succeeded.

24[1972] 1 QB 441.

25Clark v Associated Newspapers Ltd [1998] RPC 261.

26Schedule 1, para. 23 (2) (b).

27Schedule 1, para. 23 (3).

28Section 95(4).

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