Is criticism of the author a breach of his moral rights
Judge Manousaridis has had to address whether criticism of the academic skill and rigour of the author of a scientific paper constitutes derogatory treatment in relation to the work. His Honour concluded it was not.
Some facts
Mr Hoser is the author of a number of papers in which, amongst other things, he describes or identifies new species and/or new sub-species of various animals.[1]
Between 2015 and 2021, the respondents published a number of articles referencing Mr Hoser’s papers and making statements that (amongst other things):[2]
(a) implied the names proposed by Mr Hoser were “unscientific and outside the [International Code of Zoological Nomenclature]”;
(b) accused Mr Hoser of “intellectual plagiarism; unconscionable pre-emptive scientific appropriation of others’ detailed and careful scientific work; and of unscientific and disruptive behaviours”;
(c) identified 86 names created by Mr Hoser which the respondents claimed were unacceptable “nomen rejecta”;
(d) Mr Hoser had repeatedly and consistently circumvented conventional and acceptable standards of scientific taxonomies and nomenclatures.
Mr Hoser contended that the respondents’ statements carried imputations that he was dishonest, unscientific etc. As a result, Mr Hoser contended that the respondents’ articles infringed his right of integrity contrary to s 195AJ(b) of the Copyright Act 1968.
The moral right of integrity
The author’s moral right of integrity is separate from and in addition to the copyright. Section 195AI(2) defines the moral right of integrity as “the right not to have the work subjected to derogatory treatment.”
Section 195AJ defines ‘derogatory treatment’ for this purpose as:
(a) the doing, in relation to the work, of anything that results in a material distortion of, the mutilation of, or a material alteration to, the work that is prejudicial to the author’s honour or reputation; or
(b) the doing of anything else in relation to the work that is prejudicial to the author’s honour or reputation.
Mr Hoser’s argument
Mr Hoser contended that the disparaging statements and comments made by the respondents about his work constituted doing anything else which was prejudicial to his honour and reputation.
What the Judge decided
Judge Manousaridis considered at [42] that the words “anything else” in s 195AJ(b) understood in context required a distinction to be drawn between (1) doing something in relation to the work on one hand and (2) on the other hand, doing something in relation to the ideas or information embodied in the work. Section 195AJ(b) applied only to the former and at [44] not the latter.
His Honour reasoned at [46] that, in the case of literary works, the Copyright Act 1968 created rights in the material form of the writing. Section 31 created economic rights in relation to that material form and s 195AI created moral rights in relation to that form. In addition, copyright extended only to the form of expression of a work, not the ideas or information embodied in the writing.
Thus, in addition to doing something within the scope of s 195AJ(a) which materially distorted, mutilated or altered the work to the prejudice of the author’s honour or reputation, s 195AJ(b) applied to anything:
(a) in relation to the writing itself (for example, displaying the writing); or
(b) in relation to the medium on which the writing is recorded (for example, adding information to or displaying the medium); or
(c) in relation to the (non-written) material form (for example adding information to or displaying the material form).
At [45], Judge Manousaridis illustrated this by the example of a material form of a work which was a tangible good. In such a case, “anything else” applied to any act which had the tangible good as its direct object. That is, doing something to the tangible good or doing something with the tangible good such as moving it or displaying it [in some context].
Mr Hoser’s allegations did not contend that the respondents did anything to or with anything in Mr Hoser’s articles themselves. There was for example no allegation that the respondents had altered or distorted any of Mr Hoser’s texts. Instead, Mr Hoser alleged only that the respondents made statements which impugned his character and qualities as a researcher. These did not constitute derogatory treatment in relation to Mr Hoser’s works as works.
Mr Hoser’s allegations in relation to defamation having been previously dismissed, therefore, the allegations did not disclose a reasonable cause of action and Mr Hoser’s claim was dismissed with costs.
Hoser v Georges (No 2) [2024] FedCFamC2G 243
- For example “Hoser, R.T. 2013. An updated taxonomy of the living Alligator Snapping Turtles (Macrochelys Gray, 1856), with descriptions of a new tribe, new species and new subspecies. Australasian Journal of Herpetology 16:53–63”. ?
- Taken from Hoser No 2 at [32(e)]. ?
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