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Intellectual Property Law - Copyright and Moral Rights - Infringement and Consent

Date: December 20, 2010

Authors: LAC Lawyers

Author: Allan Woodley

This article is the second in a series of articles on Copyright and Moral rights. After reading this article feel free to read the following articles in the series concerning;

Infringement

It is an infringement of moral rights in a work to do or to authorise an attributable act in relation to the work in Australia.

No infringement of right of attribution of authorship if it was reasonable not to identify the author

There is no infringement of the right to attribution if it was reasonable in all the circumstances not to identify the author, taking account of:

  • the nature of the work;
  • the purpose for which the work is used;
  • the manner in which the work is used;
  • the context in which the work is used;
  • any practice in the industry in which the work is used that is relevant to the work or the use of the work;
  • any practice contained in a voluntary code of practice that is relevant to the work or the use of the work;
  • any difficulty or expense that would have been incurred as a result of identifying the author;
  • whether the work was made:
    • in the course of the author’s employment;
    • under a contract for the performance by the author of services for another person;
  • if the work has 2 or more authors – their views about the failure to identify them.

Consent

The genuine written consent of an author or person representing an author is a defence to infringement of a moral right. Such a consent must be specific, in relation to specific acts or omissions, or specified classes or types of acts or omissions, whether occurring before or after the consent is given. The consent must also be in relation to a specific work or specific works existing when the consent is given, or a specific work or specific works the making of which have not yet begun or in the course of being made.

Consent may be given by an employee for the benefit of his or her employer in relation to all or any acts or omissions (whether occurring before or after the consent is given) and in relation to all works made or to be made by the employee in the course of his or her employment.

Consent given to the owner or prospective owner of copyright in a work may extend to his or her licencees and successors in title and to person authorized to do acts comprised in the copyright.

Consent is invalidated by duress or false or misleading statements.

LAC Lawyers has a wealth of experience in Intellectual Property Law and we are always willing to assist new clients to protect and defend their intellectual Property in whatever form.

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