Abstract

Australia's growing investment in art-in-architecture ("AIA") - site-specific artworks conceived in dialogue with the built environment - raises under-examined questions about the protection of artists' moral rights, particularly the right to integrity under the Copyright Act 1968 (Cth). This article critically examines the statutory framework governing derogatory treatment under sections 195AI and 195AK of the Act, including notice procedures and exceptions applicable to works affixed to buildings and moveable artistic works, and considers how the property law distinction between fixtures and chattels informs their application. Drawing on Perez v Fernandez [2012] FMCA 2, the only substantial Australian authority on the integrity right, the article observes that the threshold for derogatory treatment is relatively low, heightening commercial risk for commissioning parties. The article then argues that "design and fabricate" agreements (modified design-and-construct contracts commonly used to commission AIA works) frequently import standard construction provisions, including step-in rights and incapacity clauses, that are ill-suited to art commissions and may expose commissioners to moral rights claims. Particular attention is paid to commissions involving Indigenous Australian artists and the inadequacy of current frameworks in addressing Indigenous Cultural and Intellectual Property (ICIP) rights. The article further identifies a significant legislative gap regarding digital AIA works, which do not fit within the Act's moveable/immoveable binary, and proposes that tailored contractual mechanisms (including limited moral rights waivers, licensing provisions, and display standards) should address these gaps pending legislative reform.

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