News & Insights

There has been a bit in the news recently about the updating of Roald Dahl’s books, which involves an interesting question of moral rights in the form of integrity of authorship. Now there’s another book-related issue in the news that raises different moral rights issues.

A book listing blunder

It has been reported by ABC News that award-winning Tasmanian author Lian Tanner found a listing on Amazon for a book, Rita’s Revenge, that exactly reproduces the title and cover of her own children’s book. However, the Amazon listing attributes that book to a different author, Emilio M Parks.

It appears from the news article that while the listing displayed the cover of Ms Tanner’s book, including having Ms Tanner’s name on the cover, the listing description attributed Mr Parks as the author.

In a further twist, while Ms Tanner’s book is 351 pages, Mr Parks’ Amazon listing describes the book as being only 25 pages. That raises some questions:

• Is the page count just a listing error?
• Is Mr Parks selling a different book, using the cover of Ms Tanner’s book on either the actual the book and/or in the Amazon listing?
• Is Mr Parks selling just an extract of Ms Tanner’s book?

The moral rights question

Regardless of the truth about Mr Parks’ book, there is a moral rights issue here. In Australia, moral rights arise under the Copyright Act 1968 (Cth), but do not form part of copyright. Moral rights are a collection of three rights:

• the right of attribution of authorship;
• the right not to have authorship falsely attributed; and
• the right of integrity of authorship, which is the right not to have the work subjected to derogatory treatment.

A couple of important provisos about moral rights:

• they are personal to the author, do not vest in the author’s employer and cannot be waived or assigned (though limited consents can be given under section 195AWA); and
• they are not absolute rights but are only infringed if the conduct is not reasonable in all of the circumstances.

Is there moral rights infringement?

It is apparent that the listing either:

• falsely attributes Mr Parks as the author of Ms Tanner’s book; or
• falsely attributes Ms Tanner as the author of Mr Parks’ book, if it is in fact a different 25-page book being marketed under Ms Tanner’s book cover.

Section 195AR(2) of the Copyright Act 1968 provides some guidance on assessing the reasonableness of attribution of authorship. The factors to be looked at include:

• the nature of the work;
• the purpose for which it is used;
• the manner in which it is used;
• the context in which it 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, in the industry in which the work is used;
• any difficulty or expense that would be incurred in identifying the author;
• whether the work was made in the course of the author’s employment or under a contract for services; and
• if the work has two or more authors, their views about the failure to identify them.

For example, in the legal industry it is common for junior lawyers not to be attributed as the author of first drafts that are subsequently sent out by senior lawyers, principals or partners of the firms that they work in.  That would not constitute a moral rights infringement.

However, for a work of literature, such as a children’s book, there are no obvious reasons why it would not be reasonable to attribute the author correctly. An express agreement for a ghost writer to be involved might constitute such a reason, but that is not alleged here.

As such, in Ms Tanner’s case, there has probably been an infringement of her moral rights, based on the facts as reported in the ABC News article. Remedies under section 195AZA can include an injunction, damages and various forms of declarations.

What about copyright?

Questions of copyright infringement really depend on what Mr Parks has actually been selling. If he used the cover of Ms Tanner’s book on his own publication, then that would likely be an infringement of the artistic work being the book’s cover.

If Mr Parks has published a 25-page extract from Ms Tanner’s 351-page tome, then that reproduction would only constitute a reproduction right infringement of Ms Tanner’s literary work if Mr Parks has taken a substantial part of her work. Under section 14 of the Copyright Act 1968, an act that is done to a substantial part of the original is considered to be done to the work as a whole. “Substantial part” is a qualitative test, not a quantitative one. The fact that 25 pages are less than 10% of the original is irrelevant. But without knowing what has been reproduced, this is impossible to determine.

What about actioning this infringement with Amazon?

Amazon, like many major e-commerce and social media sites, has systems in place for reporting copyright infringement. The linked ABC News article acknowledges that Amazon is generally efficient in removing any infringing listings.

In this author’s experience, in countries that have an optional copyright registration system, such as India, the USA and China, Amazon may insist on evidence of copyright registration before actioning a copyright-based complaint.

Take-home lessons

It is easy to forget about the existence of moral rights when considering a situation such as Ms Tanner’s. Ignore moral rights at your peril!

The assertion of moral rights can be assisted by ensuring that the original work identifies the author. That leads to a presumption of authorship for moral rights purposes, under section 195AZF.

In countries that do have an optional copyright registration system, it is advisable to register that copyright pre-emptively, as waiting until an issue arises can delay a resolution by months until registration is finalised.

And lastly, get yourself some legal advice from the Macpherson Kelley IP team. We can help you with moral rights enforcement, Amazon take-downs and international copyright registration.