 | RADARMORAL RIGHTS The new moral rights legislation has been in force for a year now. Laywer Jonathan Kenna reflects on the
effects to date and suggests possible strategies to ensure the retention of an architect’s moral rights.
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As Christmas rolled by so too did the first
anniversary of the new moral rights regime.
Unlike copyright, only individuals can hold
moral rights. This means that an
architectural partnership or company cannot
exercise the moral rights of its partners,
directors or employees. When a number of
architects contribute to a project, if their
contributions are divisible, each will hold
moral rights in their divisible portion. If their
creative contributions are indivisible then
each will hold moral rights in the whole.
These and other aspects of the new regime
fuel both conceptual debates (is architecture
art?) and practical concerns. In the midst of
these debates it is worth reflecting on what
this first year has meant for the profession.
Although progress is slow, there is some
evidence that the right of attribution will
increase the recognition of the work done by
architects and heighten the visibility of the
profession. For example, the RAIA and the
Advertising Federation of Australia have
jointly issued a guideline for the advertising
industry. This states that “where a visual,
spoken or written reference to a work of
architecture is integral to the purpose of an
advertisement, in any media, the architect
for the work is to be clearly identified”. The
guideline definition of architectural work
encompasses models, drawings,
illustrations, buildings, groups of buildings,
urban environments and furniture.
This strategy of using the new legislation
as a platform for negotiations with peak
bodies is probably the most effective way to
achieve changes in industry practice. It is
certainly more practical than relying on
individual architects to agitate their claims.
Opinions differ as to the appropriateness
of the balance struck in the legislation.
Architects concerned about protecting the
integrity of their works may be disappointed
by the breadth of defences available to
those who allegedly infringe an architect’s
right of integrity. On the other hand, Ashley
Bell argues in the Property Law Bulletin that
the right of integrity “dramatically limits the
rights of building owners to alter or demolish
their buildings”. But has the new right of
integrity had any impact on the way
architects and their clients do business?
Although a building owner is not
compelled to consult with the original
architect regarding proposed alterations to,
or demolition of, a building, such
consultation does ensure that the proponent
will not infringe the architect’s right of
integrity. One might expect this to lead to a
rash of consultations. While there is little
evidence of this, some consultations have
occurred. The most high profile example
involves Tonkin Zulaikha Greer’s proposed
alterations to the National Gallery of Australia
(NGA), and the ensuing consultations with
the NGA’s architect Col Madigan.
Both critics and supporters of the new
right of integrity could find something in the
NGA process to support their perspective.
Critics could argue that the consultations
have bogged down the project, resulting in
negative publicity, delay and additional cost
to the client. Supporters could argue that the
consultations – which may never have
occurred had Madigan not been able to rely
on his right of integrity – have been
extended beyond the statutory timeframe
because of possible benefits to all parties.
The significance of this “flagship” consultation process extends beyond its
impact on the NGA. The more constructive
the process is perceived to be, and the more
positive the outcomes, the greater the
likelihood that at least some clients might
refrain from requiring architects to sign away
their right of integrity.
The Copyright Act does permit architects
to consent to acts that infringe their moral
rights. An increasingly dominant view among
those who engage architects is that moral
rights introduce both unnecessary delay and
uncertainty: Exactly when do we have to
attribute? What form of attribution is
necessary? Who do we have to consult? (For
example, does it include employee architects
who contributed to the project?) What are
“reasonable inquiries” regarding the identity
and location of moral rights holders? The
result is a growing belief that moral rights
“consent” clauses should form a standard
component of architects’ employment and
consultancy contracts. Understandably, risk
averse lawyers will generally advise their
clients (whether they be public sector bodies,
commercial developers or individual property
owners) to include moral rights consent
clauses in any contract with an architect.
Similarly, architectural firms will generally be
advised to include comprehensive consent
clauses in their contracts with employee
architects. It is likely that one of the major
impacts of the new moral rights regime will
be the proliferation of these consent clauses.
Those architects who regard their
entitlement to moral rights as an oddity illsuited
to the nature of architectural practice
will be sanguine about these developments.
Others, perhaps only a few, will have the
bargaining power to retain their moral rights.
For the majority, however, signing away moral
rights is likely to become the unwelcome
price of doing business.
The Copyright Act does provide limited
protection for those who wish to retain their
moral rights. For example, a consultant
architect can rely on the act to resist signing
a completely open-ended and general
consent (although an employee architect
does not have the benefit of this provision)
and any consent procured by duress or
through false or misleading statements will
be invalid (although making an architect’s
engagement or employment conditional upon
the signing of such a consent is unlikely to
amount to duress).
Rather than relying on legal points,
however, architects negotiating the retention
of moral rights need to persuade the client of
the mutual benefits involved. Possible
strategies include minimising uncertainty
regarding attribution by providing clear and
reasonable guidelines on when and in what
form attribution is appropriate. Architects
should point out that attribution increases
profile, and that increased profile adds value
to the client’s project. As to the right of
integrity, they should remind the client that
early notice to the architect of the proposed
works will avoid delays to construction (given
that architects are provided a minimum of
three weeks and a maximum of six weeks
from the date of notice to consult with the
proponent) and that this consultation
effectively provides the proponent with an
opportunity for a second, highly qualified
opinion on the proposals at no cost. Finally,
architects should try to point to examples
where retaining the right of integrity has
delivered benefits to both owner and
architect. Given the generally positive reports
regarding their value,the consultations on the
NGA modifications may well provide
architects with just such an example.
Jonathan Kenna is a intellectual property
lawyer at the Canberra office of Deacons
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The Copyright Act provides architects
with three moral rights:
- The right of attribution
- The right to prevent false attribution
- The right of integrity
Attribution
This entitles an architect to be attributed, in
a clear and reasonably prominent way, as
the creator of the building. The right arises
only in certain circumstances, and there is
room for debate about exactly what these
circumstances are. However, in most
situations an architect should be attributed if
their building is the primary subject of a
photograph published in hard copy or posted
on the internet. The architect should also be
acknowledged if the building forms more
than an incidental part of a television
broadcast or a film.
False attribution
The right to prevent false attribution is
exactly that: the right to prevent someone
falsely attributing you as the creator of a
building. It is likely to be more relevant to
well-known architects whose reputation
might be “borrowed” to enhance the value
and prestige of particular developments.
Integrity
This allows an architect to take action to
prevent, or be compensated for, acts that are
prejudicial to their honour or reputation. This
includes the demolition or alteration of a
building if it would be prejudicial in this way.
Defences
There are certain defences to alleged
infringements of these rights.
The right of attribution will not be infringed if
it was reasonable, in all circumstances, not
to identify the architect. Factors relevant in
assessing reasonableness include industry
practice and the difficulty or expense of
identifying the architect.
Similarly, the right of integrity will not be
infringed if it was reasonable, in all
circumstances, to subject the building to
derogatory treatment. Again, in assessing
reasonableness, factors such as industry
practice are relevant. Importantly, the
Copyright Act also makes it explicit that the
relocation, demolition or alteration of a
building will not infringe this right of integrity
if, where contactable, the architect has been
put on notice of the proposal and been given
an opportunity (within six weeks of the date
of notice) to either record the building or to
consult with the owner about the proposals.
Naturally, any act or omission within the
scope of a valid consent given by an
architect will not infringe moral rights. Given
that only individuals hold moral rights, such
consents must be obtained from individual
moral rights holders rather than the
corporate entity for which they work.
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