Finally, Moral Rights get some care factor, and we talk Tattoos

Inserted at the rear of the Copyright Act is a part concerning ‘moral rights’. It’s considered a poor cousin to the good stuff: juicy claims about infringement of musical, literary and artistic works, fights about film rights, and so on.

The ‘good stuff’ was the focus of copyright law lectures. And then – tacked on at the very end of the course – when Strongbows at the local Uni pub were only an hour away, there’d be a brisk trot through moral rights.

The only upside to this last hour of pain was a bit of French. So it was explained, ‘droit d’auteur’, or the right of the author, is a European concept which some kind of idiot (**umm, ‘person’) decided to import into Australia’s erstwhile and otherwise successful common law, UK based IP system (** fully accept there’s some poetic licence here). This was done in order to preserve the residual right of integrity and attribution to which an author of a copyright work remains entitled, even if they give or license the actual copyright interest away. There must be an express assignment of moral rights before the author loses a right to this residual interest.

Finding examples of any care factor in Australia about the moral rights concept has always been a stretch. One must resort to the odd case brought by boat designers, architects and the like, when their plans – which they may have legitimately assigned or licensed – find expression in someone else’s block of land or dock without appropriate acknowledgment.

That was until the Victorian Curriculum and Assessment Authority featured an edited version of a September 23, 2010 Fairfax article about tattoos by Helen Razer in it’s 2011 VCE English exam, under another name, ‘Helen Day’.

The original article was a cracker. Entitled ‘Tats lose luster in long march to fashion foible’, it commences: “Once a sign of deviance and criminality, they’re now more Chadstone”. (Chadstone is a large Victorian shopping centre.) It continues: “Since newsreaders, sitcom stars and Chadstone shoppers began to draw roses, skulls and Latin phrases on their flesh, the power of ink has diminished. The deviant nature of the tattoo has faded like, well, a tattoo.” The piece then goes into the origin of tattoos, with a personal anecdote by Ms Razer about her experience with one.

We don’t have the exam version, but according to Helen Razer, examiners had inserted poorly written ‘blog-speak’ words she would never use such as ‘maga’ and ‘try-hard’. Some of the social media commentary by students who sat the exam refers to the edited version as “the worst ever”.

In an article in The Age which broke this story, Ms Razer speculated that this may have helped explain the negative remarks that started to appear about her on social media. Writing on Facebook herself she said that “an op-ed piece commissioned by The Age was given the fake by-line ‘Helen Day’, some seriously sh****y ‘youth’ editing and turned over to a horde of 18 year olds who have joined “We hate Helen” pages by the thousands”.

According to Ms Razer, the explanation given by the VCAA for changing her name was that her name would be a distraction to students. Whilst Ms Razer queries the visibility of her own profile, perhaps the VCAA had given some regard to Ms Razer’s blog profile for The Drum which states: “A non-alumna of Sydney University, Razer failed to finish her degree in Literature and Philosophy due to impatience”.

If so, then at least some of the commentary emerging on Facebook and the like makes a legitimate point that there must be a degree of double standard for an examining body to plagiarise in the manner it has in this case, given the consequences students would suffer if found to do likewise. In this sense at least, the tide of opinion appears to have strongly turned in Ms Razer’s favor.

The VCAA has reportedly apologized to Ms Razer, so we assume the matter is over. But it does serve as a salient example that even if you are permitted to use copyright material for exams, without seeking prior permission due to security concerns (which is apparently the basis upon which the VCAA could use Ms Razer’s work in the first place), one needs to consider moral rights as well. Of course, this principle applies to all other contexts.

And this isn’t just an arid law lecture. The consequences of failing to heed moral rights, and treating a third party copyright work to which you have rights as ‘your very own’ does in fact have the capacity to cause reputational harm to the author. Flipped another way, it’s also fair that if you create a valuable copyright work, people should be entitled to know you are the creator, and not to do damaging things to your work, even if you have decided to assign away the rights to exploit it commercially, or someone is permitted to use it under compulsory licence.

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