14 December 2013


'Perez v Fernandez: Australia's First Decision on the Moral Right of Integrity' by Jani McCutcheon in (2013) 23 Australian Intellectual Property Journal 174 considers Perez v Fernandez [2012] FMCA 2, the moral rights judgment noted here.

McCutcheon indicates that
This article examines the recent Federal Magistrates Court decision of Perez v Fernandez, Australia’s first case on the moral right of integrity. While not an in-depth consideration of the moral right of integrity, Perez gives some useful insights and raises some questions. This article will closely analyse and critique the decision, compare it to approaches to the moral right of integrity in the UK and Canada, and identify the useful contributions Perez makes to the fledgling Australian moral rights jurisprudence.
In her discussion she comments that -
Unfortunately, Perez does not resolve any of the questions as to the meaning of honour, or how prejudice to honour should be assessed or proven. Nor does it discuss “honour” clearly as a concept separate to reputation (this criticism also applies to most if not all the UK and Canadian cases discussed above). Indeed, in several instances, Driver FM refers to “honour and reputation” (at [61], [98](a), (b), [101]). His Honour did refer to the Attorney-General’s Second Reading Speech (cited above), and to a recent report describing moral rights as one of the four principles underpinning Australian copyright law. He also said that moral rights were introduced to: “give protection to the investment of the author’s personality in his or her creation. Moral rights draw their jurisprudential force from civil law traditions and a number of international copyright and human rights conventions to which Australia is a party” (at [81]).
These references to an author-work connection and the civil law origins of moral rights suggest that the court regards honour as an aspect of protectable authorial personality, separate from authorial reputation, although it is interesting that, in the context of a cause of action so closely linked to the personality interests of the author (at [100]), Mr Perez’s failure to personally give evidence of prejudice did not disadvantage him. The court made a number of references to prejudice to the honour or reputation of Mr Perez “per se”: “the distortion of Mr Perez’s work, such as to create a false association, should be regarded as prejudicial to his honour and reputation as an artist per se” (at [98](b)). While this could be considered a reference to Mr Perez’s honour in isolation from his reputation, it is more likely that his Honour was simply clarifying that a breach of moral rights is actionable per se without proof of damage, or that in the particular circumstances of the parties’ relationship prejudice could be presumed. The court also said (at [87]):
I accept that the fact that the reference to Mr Fernandez in the altered version of the song had not been authorised by the author should be regarded as prejudicial to him per se. Were it to be suggested otherwise, Ms Martinez’s affidavit establishes to my satisfaction that the association with Mr Fernandez is one which Mr Perez himself strongly considered to be prejudicial to his reputation, and which caused him anger and distress [emphasis added].
This statement could be seen to discuss honour as a separate element of the right of integrity, if we construe the reference to “him per se” as a reference to Mr Perez as an author and without any exterior measure, followed by the separate consideration (“were it to be suggested otherwise”) of prejudice to reputation, which is measured by criteria exterior to the author. The reference to “anger and distress” seems also to be a reference to honour, given that those feelings are strictly irrelevant to damaged reputation. Again, however, this could also simply be a reference to presumed prejudice (“per se”), or in the alternative proven prejudice (based on Ms Martinez’s affidavit evidence). His Honour also found that Mr Perez was “concerned and upset by the distortion of the Bon, Bon Sound Recording and the use made of it by Mr Fernandez” (at [60]), and that Mr Fernandez “intended to cause Mr Perez artistic, reputational and commercial harm” (at [69]). He also referred to the “distress caused to Mr Perez as an artist”, the “need to provide vindication to Mr Perez as an artist” (at [106]), and to Mr Perez’s compensable “injured feelings” (at [91], [104]). However, Mr Perez may well have been “concerned and upset”, and his feelings injured, about the damage to his reputation caused by Mr Fernandez’s conduct, so these are not clear separate references to honour.
Despite the reference to “artistic” harm and to Mr Perez’s capacity “as an artist”, there was apparently no evidence as to authorial integrity, eg, that the deleted part of the song was particularly artistically significant, that the change made the song worse, or that Mr Fernandez interfered with Mr Perez’s authorial vision. The change made to Bon, Bon, in terms of quantum, was relatively minor, and the substantial message of the song remained untouched. Certainly, given the weight attached to reputation prejudice, Perez is not authority for the proposition that simply changing a few lines of a musical work is necessarily prejudicial, as suggested in some commentary, and as could likely be the case in France. The particular facts of Perez were very important. It was the misleading false association created by the new line, and its effect on the commercial reputation, rather than the artistic honour, of Mr Perez, that was germane, rather than the fact of the alteration itself or any interference with authorial vision. In other words, this was less about Mr Perez commanding respect for his work in his capacity as an author, and more about him commanding respect for his goodwill in his professional capacity. It is the strength of the case for reputation prejudice which makes Perez a poor test case on the concept of honour.
Thus it is no surprise that Perez is silent on the need to objectively verify the subjective response of the author. Insofar as the court considered Mr Perez’s subjective evidence about his feelings, it did not consider, nor apparently deem necessary, evidence from Mr Perez’s peers or any other representative member of the community about whether Mr Perez’s feelings were reasonable in the circumstances. The statement in Perez (at [98]) that it was unnecessary to lead “evidence from members of the public as to the way the work would be received” does not clarify the issue, since that evidence is separate to evidence about whether members of the public regarded Mr Perez’s subjective response to be reasonable. However, it is likely that the same evidence which led the court to conclude that prejudice to reputation could be presumed (ie, the particular circumstances of the parties’ relationship and the failed concert tour) would also demonstrate the reasonableness of Mr Perez’s subjective responses. Since Mr Perez’s honour was not really at issue, it is still an open question as to whether corroborative evidence of the reasonableness of the author’s response is necessary, or whether damages are recoverable for injured honour alone, in the absence of evidence of reputational harm. Perez does suggest, however, that a purely objective test should not be employed to determine prejudice to honour. The arguments for a purely objective test sit awkwardly with the several references in Perez to the injured feelings of Mr Perez, and the references to him as an artist (at [106]), rather than a “reasonable author” in the relevant field.
In summary, we need a deeper judicial consideration of the issue of honour as a separate element of the moral right of integrity before the Australian approach can be gleaned, and it is hoped that future claimants will plead their case more overtly in the alternative, and that future courts will consider those claims separately.
McCutcheon concludes -
In summary, the following conclusions can be drawn from Perez:
• the words “is prejudicial” mean a propensity towards prejudice, rather than prejudice in fact;
• it is unnecessary to establish actual proof of quantifiable loss;
• in certain circumstances, prejudice to honour or reputation may be presumed, in which case prejudice need not be objectively verified. It is not clear what the burden of proof is in cases where the facts do not so easily permit presumptions of prejudice to be made;
• the author’s subjective response to injury to reputation is relevant, and it is implied that the author’s subjective response to injury to honour is also relevant;
• it is not clear whether, in the absence of harm to reputation, injury to honour only is compensable, or compensable only with corroborative objective evidence;
• the remedies for breach of moral right include compensation for a very broad concept of loss, including aggravated damages, compensation for injured feelings and harm to goodwill; although it is not clear whether the injured feelings must be referrable to objectively established prejudice, either to reputation or to honour; and
• prejudice must be “serious” but need not be long-lasting
As one of only a few moral rights cases in Australia, and the first considering the moral right of integrity, Perez is a welcome addition to the paucity of authority on Australia’s untested moral rights. Despite being a lower court decision, as a very rare moral rights victory, Perez will likely be scrutinised by stakeholders in other common law jurisdictions. It should be regarded with some care, however, due to its particular facts, and due to its failure to deliberate deeply on some of the more contentious issues relating to the moral right of integrity.