Moral rights

The right of attribution

The right of attribution of authorship requires that the author be identified whenever an artistic work is 'reproduced, published, exhibited or communicated to the public' (an attributable act). If a person does an attributable act with a work without crediting the author, this may be an infringement of the moral right of attribution.

A work should be attributed by ‘any reasonable form of identification’. An author such as an architect may request that they be specified in a certain way (eg a pseudonym or professional name). An author can also request to remain anonymous.

Attribution for architects

Upon accepting a commission, architects should advise the client of the architect’s moral rights, and the client’s obligation to respect those moral rights.

The Australian Institute of Architects guidelines suggest that an attribution should simply state the word 'architect', followed by the name of the individual who is the architect(s) of the work. It suggests that this should be done 'in a manner that is clear to the audience to whom the advertisement is directed'. An example of a reasonable form of attribution could include a plaque on the building identifying the architect and/or acknowledgment of the architect whenever information about the project is published.

As stated above, moral rights can only be owned by individuals, not corporate entities. This means that where an architectural work is the product of two or more architects working in partnership, each individual architect may have a right of attribution.

In the context of an employer/employee relationship, although the employer will typically own copyright in material created by the employee, the individual employee will still retain their moral rights as the author of the material. However, an employer may seek consent from the employee to not attribute them, or there may be situations where it would be considered reasonable to not attribute the individual employee (see below).

Defences to infringement of the moral right of attribution

Where the moral right of attribution has been infringed, there are two defences available – consent and reasonableness.

Consent

It is not an infringement of the moral right of attribution if the author consents to not be attributed as the author.

Consents may be verbal or in writing; however, in terms of best practice, it is advisable that any consents given by an architect to not be attributed be set out in writing, and in relation to specific acts. A broad or general waiver of moral rights will not be effective, although in the context of employment, the employer may seek broader consents from individual employees.

Reasonableness

It is not an infringement of the moral right of attribution if it was 'reasonable in all the circumstances' to not identify the author. Matters that may be taken into account to determine whether a failure to attribute was reasonable include:

• the nature of the work
• the purpose, manner and context in which the work is used
• any industry or voluntary codes that are relevant to the use of the work
• the difficulty and expense in identifying the author
• whether the work was made in the course of employment.

In terms of industry code, the Australian Institute of Architects and the Advertising Federation of Australia have released joint guidelines stating 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 guidelines are not intended to apply to advertisements which publish general views of a collection of various architectural works (eg a cityscape or streetscape that captures the architectural work of many different individuals). As a rule of thumb, where the purpose of an advertisement or publication is the architecture of a structure, the architect should be identified.

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The right against false attribution

It is an infringement of the moral right against false attribution to falsely or incorrectly credit another person for an author’s work. The Act defines 'acts of false attribution' as including:

• affixing, inserting or using in or on a work, or a reproduction of a work, a person's name in such a way as to falsely imply that the person or a corporation is the author of the work or the author of the adaptation
• dealing with a work, or a reproduction of such a work, knowing that the name affixed or inserted is not that of the author's, or that the work is not an adaptation of the author's
• performing in public such a work or transmitting such a work, knowing that the name affixed or inserted is not that of the author's, or that the work is not an adaptation of the author's.

It is also false attribution to deal with an altered artistic work, or reproduction of the work, as if it were unaltered, knowing that the work or reproduction is in fact altered. There is an exception for alterations of a minor or insubstantial nature and for those required by law.

Architects and false attribution

It is false attribution to wrongly identify a person as the author of a project. It is also false attribution for a partnership or corporation to claim to have designed a project, unless all the relevant authors have consented to be attributed under the name of the partnership or corporation.

While the moral right against false attribution protects an architect against their work being credited to others, it also requires architects to be scrupulously honest when claiming authorship of work. Projects that result from joint ventures, associations or similar arrangements should acknowledge joint authorship, as failure to do so could be considered false attribution by omission. The work of some employees may require acknowledgment. Furthermore, unbuilt works should be clearly identified so that they are not confused with another architect's built works of the same name or on the same site.

Other examples of acts which may be an infringement of the moral right against false attribution include:

• failing to identify a joint venture partner in projects that are included in the practice portfolio of work, that were the result of a joint venture
• claiming to have designed a project without noting that you were part of a team, thus implying that you alone designed the project
• failing to mention in projects you claim as yours, that they were designed as part of your employment.

Defences to infringement of the moral right against false attribution

Where the moral right against false attribution has been infringed, the only defence available is consent. The defence of reasonableness which applies to attribution and integrity does not apply to the moral right against false attribution.

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The right of integrity

The moral right of integrity is the right of an author to not have their work subject to derogatory treatment.

Derogatory treatment means to treat a work in a way that is prejudicial to the honour and reputation of the work’s author. For artistic works, this could include a material distortion or alteration or a mutilation of a work, including exhibiting the artistic work in a manner or place that would damage the honour or reputation of the artist.

Architects and the right of integrity

Derogatory treatment does not mean simply treating a work in a way the architect does not like—what is done to the work must actually prejudice the architect’s honour or reputation as an architect.

Honour and reputation have different meanings. To a lawyer, the issue is whether there is to be an objective assessment of whether the author's honour or reputation has been prejudicially affected or whether it is the artist's subjective opinion that they will suffer by reason of the infringement.

The question of what constitutes a sufficient alteration of work in order to constitute an infringement can be difficult. In Carlton Illustrators v Coleman & Co Ltd. (1911) 1 KB 771, the plaintiff had made a fine-line drawing for the defendants for use in advertising, and the defendants acquired the copyright in the drawing. The defendants, without the plaintiff's consent, made coloured posters by inaccurately enlarging the drawing, colouring and adding the plaintiff's name on the enlarged version. The trial judge held that the alteration constituted an infringement of the English Copyright Act of the time. The test applied was whether the alteration was of such a character that it might affect the character and reputation of the artist, not whether it had actually damaged the character and reputation of the artist.

Defences to infringement of the moral right of integrity

Where the moral right of integrity has been infringed, there are two defences available: consent and reasonableness.

Consent

It is not an infringement of the moral right of integrity if the author consents to have their work treated in a certain way.

Consents may be verbal or in writing, however in terms of best practice, it is advisable that any consents given by an architect to be set out in writing specifying particular acts rather than a general consent. In the context of employment, the employer may seek broader consents from individual employees.

Reasonableness

It is not an infringement of an architect’s moral right of integrity if what is done to their work is considered reasonable in the circumstances. Again, there are a list of factors to be considered when determining whether an action is reasonable, including:

• the nature of the work
• the purpose, manner and context in which the work is used
• any industry or voluntary codes of conduct that are relevant to the use of the work
• whether derogatory treatment was required to comply with law (eg workplace health and safety requirements, or a building code)
• whether the work was made in the course of employment.

Importantly for architects, the following matters are said not to constitute infringement of the right of integrity:

• Destroying or removing a moveable artistic work, if the author was first given a reasonable opportunity to move the work.
• Changing or destroying the structure or part of the structure to which an artistic work is affixed.
• Changing or demolishing a building that is an artistic work.
• Preserving a work in good faith.

The moral rights legislation has a particular section of importance to architects. Under Section 195AT(3A), a change in, or relocation, demolition, or destruction of a building will not infringe an architect’s moral right of integrity if the owner of the building first takes certain steps:

(a) The building owner must make reasonable enquiries to discover the identity and location of the author or a person representing the author.

(b) If the reasonable enquiries are successful, or the architect is already known, the building owner must give them notice in writing and in accordance with the regulations, of the owner's intention to carry out the change, relocation, demolition or destruction. The architect must be given 3 weeks from the date of the notice to seek access to the work to make a record of it or consult in good faith with the owner about the owner's proposals.

(c) If the architect indicates within the 3 week period that they want access to the work, the building owner must give them a reasonable opportunity to have access within a further 3 week period. In the case of a change or relocation of the building, the owner must comply with any notice requiring that the author's identification as the author of the work be removed from the work.

Compliance with the above procedure will prevent a building owner from being liable for infringement of the moral right of integrity, however, it will also cause a delay of six weeks or more before construction can commence. Architects working on projects that require the demolition or renovation of a pre-existing building should therefore ensure that they factor this six week period of inactivity into their schedules to avoid incurring additional costs.

For architects whose work is being altered, it is worth noting that you retain your rights in the building, and the obligations of the building owner with respect to your moral rights are unchanged. If you consider that the alterations to the building you designed are inappropriate, unattractive or offensive you can request that the authorship of the original building is not acknowledged.

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For further information, refer to the following Australian Copyright Council fact sheets:

• Assigning and Licensing Rights
• Moral Rights
• House Plans & Copyright

and their Architecture, Building Design & Copyright publication.

References

• The Royal Australian Institute of Architects and Advertising Federation of Australia (nd) Advertising Industry Guidelines: Moral right of attribution - Architectural works [PDF].

The Australian Copyright Council kindly contributed to the review of this note to ensure currency as at the date of publication and only in relation to Australian copyright law.