Commonwealth Consolidated Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]


Remedies for infringements of performer's moral rights

  (1)   Subject to section   203, the relief that a court may grant in an action for an infringement of any of a performer's moral rights in respect of a live performance or recorded performance includes any one or more of the following:

  (a)   an injunction (subject to any terms that the court thinks fit);

  (b)   damages for loss resulting from the infringement;

  (c)   a declaration that a moral right of the performer has been infringed;

  (d)   an order that the defendant make a public apology for the infringement;

  (e)   an order that any false attribution of performership, or derogatory treatment, of the performance be removed or reversed.

  (2)   In exercising its discretion as to the appropriate relief to be granted, the court may take into account any of the following:

  (a)   whether the defendant was aware, or ought reasonably to have been aware, of the performer's moral rights;

  (b)   the effect on the performer's reputation resulting from any damage to the performance;

  (c)   the number, and categories, of people who have heard the performance;

  (d)   anything done by the defendant to mitigate the effects of the infringement;

  (e)   if the moral right that was infringed was a right of attribution of performership--any cost or difficulty that would have been associated with identifying the performer;

  (f)   any cost or difficulty in removing or reversing any false attribution of performership, or derogatory treatment, of the performance.

  (3)   In deciding whether or not to grant an injunction under subsection   (1), the court must consider whether the parties have made any attempt to negotiate a settlement of the action and whether it should adjourn the hearing or further hearing of the action for the purpose of giving the parties an appropriate opportunity to negotiate a settlement, whether through a process of mediation or otherwise.

  (4)   If, after the death of a performer, in respect of an act done in a live performance or recorded performance, damages are recovered under this section by the legal personal representative of the performer, those damages devolve as if they formed part of the performer's estate and as if the right of action in respect of the doing of the act had subsisted, and had been vested in the performer, immediately before his or her death.

Note:   Subsection   (4) does not apply in relation to the right of integrity of performership, which ends on the performer's death: see section   195ANA.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback