moral rights

Moral rights and the statute of limitations

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Ms Skildum-Reid’s application for preliminary discovery against the University of Queensland (UQ) has failed for a number of reasons, the most interesting of which is Derrington J’s ruling that it is likely that a six year statute of limitations applies to infringements of moral rights.

Some background

Ms Skildum-Reid is a corporate sponsorship consultant, adviser, speaker and author. Over the years since 2006, she has given presentations at various workshops. In the course of doing so, Ms Skildum-Reid developed one or more slide decks.

In July 2023, Ms Skildum-Reid discovered through internet searches some 15 slide decks with 79 instances of what she considered plagiarism being, or having been used, in two marketing courses being run by UQ.

Through her lawyers, Ms Skildum-Reid wrote to the University stating (amongst other things):

In addition to the egregious and blatant infringement of our client’s Copyright Works, our client considers the unauthorised use of the Copyright Works by the University without any accreditation or reference to her as author (in breach of her moral rights in the Copyright Works) to constitute plagiarism and serious academic misconduct on the part of the UQ staff members who have been responsible for delivering/presenting the UQ Courses.

Correspondence between the parties’ lawyers followed, without resolving the dispute.

Ms Skildum-Reid then brought a preliminary discovery application against the University under both FCR 2011 r 7.22 and r. 7.23. That is, seeking discovery from the University of documents or information to enable her to identify a prospective respondent or, alternatively, whether she had a right to relief against the prospective respondent.

In responding to the application, however, the University provided evidence from the person running the course, a Dr Chien, that she was simply using and updating slide decks provided to her by the University when she took over the course in 2009, some 15 years earlier.

The problem

This evidence caused considerable consternation in Ms Skildum-Reid’s camp. Ms Skildum-Reid wanted to identify who were the person(s) who had prepared the slide decks passed on to Dr Chien.

As those events occurred more than six years previously, Ms Skildum-Reid ran into the limitation of actions provided by Copyright Act 1968 (Cth) s 134(1):

An action shall not be brought for an infringement of copyright or in respect of the conversion or detention of an infringing copy, or of a device (including a circumvention device) used or intended to be used for making infringing copies, after the expiration of six years from the time when the infringement took place or the infringing copy or device was made, as the case may be. (emphasis supplied)

and the University made it plain it intended to rely on s 134(1).

At the hearing of the application for preliminary discovery, Ms Skildum-Reid sought to modify her claims to include infringement of her moral rights.

By this stage, Ms Skildum-Reid had realised that any claims of copyright infringement against whomever had prepared the slide decks provided to Dr Chien were well and truly statute barred. Ms Skildum-Reid’s argument was quite simple. Section 134(1) applies only to infringement of copyright. Infringement of moral rights is not infringement of copyright so, therefore, s 134(1) has no application.

An attempted solution

The argument is that infringement of copyright is defined by ss 36 to 38 in Part III and ss 101 to 102 in Part IV. So, for example, s 36(1) provides in part that “copyright subsisting in a literary, dramatic, musical or artistic work is infringed by ….”[1] (emphasis supplied)

And, further, what constitutes copyright is defined by s 31 “Nature of copyright in original works” in the case of original literary, dramatic, musical and artistic works[2] and ss 85 – 88 in the case of other subject matter. None of these provisions confers a right of attribution or a right of integrity.

Moral rights while subsisting in original works and other (Part IV) subject matter, are not “copyright” and do not arise under Part III (original works) or Part IV (other subject matter). Instead, moral rights arise under Part IX – all the way down in s 189 and following.

These provisions include separate provisions about infringement. So, for example, s 195AO provides:

… a person infringes an author’s right of attribution of authorship in respect of a work if ….

Sections 195AP and 195AQ make corresponding provision for infringement of the moral rights of integrity and against false attribution.

No mention of “copyright” in any of them.

Despite running (in the case of “author’s rights) all the way down to s 195AZO, there is no counterpart to s 134. The Copyright Act does not in terms include a statute of limitations on moral rights claims.

The University, however, sought to invoke the six year statute of limitations on claims of tort arising under Queensland state law[3] which, the University contended, applied through s 79(1) of the Judiciary Act 1903 (Cth):

The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

The State statute of limitations applied

At [40] – [42], Derrington J cited the High Court’s interpretation of the role of s 79 as filling any “gaps” in Federal law by allowing the application of the relevant state or territory law in such cases.[4]

Derrington J could discern nothing in the Copyright Act or the Explanatory Memorandum for the bill introducing moral rights to suggest that a limitations period for moral rights had been deliberately excluded. Accordingly, there was a “gap” and it was generally accepted infringement of copyright, while statute based, was tortious conduct.

Rule 7.22 requires only that the prospective applicant for preliminary discovery may have a claim, not a prima facie case. Derrington J considered, however, it was still necessary to take into account the prospects of success. Pointing out at [53]:

…. It would be productive of wasted time and money to require a person to make discovery of documents to a prospective applicant in circumstances where, if the contemplated action were pursued, it would necessarily fail.

His Honour found that it was unlikely Ms Skildum-Reid would be able to avoid the operation of the Queensland Limitations of Actions Act. Accordingly, her application under r. 7.22 failed. At [54], his Honour concluded:

Here, no answer was provided to the prospective respondents’ submissions that the claims sought to be made would be barred by s 10 of the Limitation of Actions Act. Though there may be arguments that actions for the infringement of statutory intellectual property rights are not tortious in nature so that s 10 of the Act does not apply to them, such arguments would have to overturn long lines of authority to the contrary. The prospect of doing so is unlikely. In those circumstances, the prospective applicant has not established for the purposes of r 7.22(1)(a) that she may have a right to obtain relief against the unidentified previous course co-ordinator or guest lecturer for infringement of her moral rights.

The prospects of a successful claim, or rather the lack of prospects, also meant Derrington J would not have exercised the discretion in favour of ordering preliminary discovery.

Rule 7.23

Ms Skildum-Reid’s application for preliminary discovery under r 7.23 ran into other difficulties. The main problem being, having accused the University of “egregious and blatant” copyright infringement, it was rather difficult to satisfy the requirement that Ms Skildum-Reid had insufficient information to decide whether to sue or not.

Having made allegations in “emphatic and unequivocal terms”, there was nothing in her evidence explaining why she had insufficient information to decide whether to proceed. At [88] – [89]:

…. It might be inferred from her affidavit material that she believes that she has claims against the prospective respondents. However, there is nothing to suggest that her belief is only that she may have claims against them. No statement of uncertainty about the veracity of her anticipated claims, or why that uncertainty might exist, is provided. Further, she did not identify what information she lacked but needed in order to decide whether to start proceedings. (original emphasis)

These were fatal omissions. Whilst it might occasionally be possible to attribute to the prospective applicant the assertions of their solicitor or counsel for the purposes of establishing the reasonable belief, the drawing of that inference can be difficult. It is preferable, on any application for there to be direct evidence of the prospective applicant’s belief for the purposes of subparagraph (1)(a) and of the lack of information which prevents a decision being made for the purposes of (1)(b). Here, none of those matters were addressed in the affidavits relied upon.

Skildum-Reid v University of Queensland [2024] FCA 733

  1. Section 101 makes similar provision: “a copyright subsisting by virtue of this Part is infringed by ….”  ?
  2. In the case of literary, dramatic and musical works, the familiar rights to reproduce the work in a material form, publish it (for the first time), perform it in public, communicate it to the public etc.  ?
  3. s 10 of the Limitation of Actions Act 1974 (Qld). Every state and territory has equivalent legislaton.  ?
  4. Rizeq v Western Australia (2017) 262 CLR 1 at [16] (Kiefel CJ) and [90] (Bell, Gageler, Keane, Nettle and Gordon JJ).  ?

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Is criticism of the author a breach of his moral rights

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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

  1. 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”.  ?
  2. Taken from Hoser No 2 at [32(e)].  ?

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Copyright Wars

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With the Productivity Commission purporting to be undertaking an “evidence-based”[1] review of intellectual property arrangements with a heavy focus on copyright, Rebecca Tushnet has a timely review of Peter Baldwin’s The Copyright Wars: Three Centuries of Trans-Atlantic Battle.

For my part, I thought the French and other “romantics” invented moral rights before the Fascists (but I guess we’ll have to read the book to see how that is supported).

When the book was published, the Economist starkly illustrated the tension between the “two” systems and Prof. Johns took a more cautionary view.

  1. For “evidenced based” policy analysis, see Nicola Searle’s review of another interesting book: Paul Cairney’s The Politics of Evidence-Based Policy Making.  ?

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The Corbys have copyrights

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Various members of Schapelle Corby‘s family, like most other people who take photographs, do own copyright in the photographs they have taken and Allen & Unwin, which published 5 of their photographs in The Sins of the Father, has to pay damages for the unauthorised use of those copyrights.

Buchanan J awarded:

  • between $500 and $5,000 compensatory damages pursuant to s 115(2) for each photograph; and
  • $45,000 by way of additional damages pursuant to s 115(4) for the deliberate and studied disregard of the applicants’ copyrights.

Allen & Unwin has also been ordered to remove the photographs from its existing stocks and not to reproduce them again.

The evidence disclosed that some 44,000 copies of the book had been sold up to March 2013, from several print runs, including print runs after the proceeding commenced. The larger amounts reflected his Honour’s perception of greater commercial significance largely indicated by the accompanying text in the book. The $5,000 award was for the last photograph of Ms Corby with her father in Australia and, in addition to being used in the book, was reproduced on the back cover with relevant text.

Given the (reported) content of the book, it might seem surprising that the main defence was licence. The photographs had been given to Fairfax, not Allen & Unwin, for publication in relation to one or another newspaper article. Buchanan J found at [85]:

whatever photographs had been given by any member of the Corby family to media organisations for some other purpose, photographs had never been given by any member of the family to the respondent to reproduce. [The respondent’s publisher] accepted that no member of the Corby family had granted permission to the respondent to reproduce the photographs. It is clear that the respondent had never sought any such permission.

There was no attempt to justify any publication through a fair dealing defence but, on the other hand, Buchanan J expressly rejected any insult to the Corby family as relevant to the calculation of additional damages:

120   In the present case, I do not regard as relevant to the assessment of additional damages any criticism of the Corby family, its individual members and its associates (actual or presumed) which is to be found in the book. Those damages will not be fixed to address any perceived insult to the Corby family or any of its members but will be fixed having regard to the seriousness, amongst other things, of the studied disregard of the regime of copyright protection established by the Copyright Act. In my view, the present case suggests a need to deter the respondent and others from conduct of a similar kind.

Contrast von Doussa J’s approach to personal and cultural harm in the Milpurrurru case from [146]ff.

The decision is also our third (?) moral rights case: the authors’ moral rights of attribution being infringed. Buchanan J, however, did not award damages for this having regard to s 195AZGG(3), the unlikelihood that any of the author’s would want to have been identified as participating in the production of the book and the damages awarded for copyright infringement.

Corby v Allen & Unwin Pty Limited [2013] FCA 370

The defamation action arising from the book’s publication is still making its way through the NSW courts.

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That Obama poster

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Hyperlinking off the reference to the new President, you’ve no doubt heard about the copyright infringement allegations Shepard Fairey‘s Obama poster apparently based on an Associated Press photograph has generated.

Nic Suzor thinks this is unfair and shows why we need a broadly based “fair use” defence or a transformative use defence.

Now, this is a very important problem and I personally don’t have a problem with a broadly based “fair use” defence, but I wonder where Nic’s idea fits in in a world where authors have moral rights – which just happens to be the world Australians live in?

Now, I guess if you were more or less leftish (bit hard to know where on the spectrum Democrats in the US might fall anywhere outside the USA), you might well think favourably of both the poster and the photographer – who doesn’t seem to get acknowledged in the poster, but I may be wrong about that.

What would happen, however, if the photographer was strongly left leaning in principles or smitten with the President and the transformer used the photograph to make some sort of criticism of the President by putting him in that Bansky or the Rudd “homage“.

At the moment, the photographer might well be outraged and concerned that fellow Obama-ites might think less, very much less of him/her.

That seems like the very sort of thing that moral rights might well be designed to protect the author against.  Shostakovich famously successfully stopped the use of his music in some paen to Nazidom, at least in part because of the damage it would do to his reputation in his USSR homeland. And that is even without the droit de divulgation and the right to withdraw a work from publication.

Which policy would win out?  Which should win? The “reasonableness” defence (here and here) might be open, but how does one apply it in this context?

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