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What are moral rights?

What are moral rights?

Posted 13 May 2022 by Cameron Lang

Categories: Copyright

Moral rights provide authors and performers with personal and inalienable rights over their creations. Moral rights have been protected for many years in some countries, especially in continental Europe. By contrast, they are relatively new in Australia, having been introduced in 2001 as the result of changes to the Copyright Act 1968 (Cth). As a result, they are often overlooked. However, it is very important for authors and performers, as well as the businesses contracting with them, to have an understanding of moral rights. This article will explore what moral rights are, what sort of protections they provide, and how to deal with them.

What types of things are covered by moral rights?

Moral rights attach to any literary, dramatic, musical and artistic works, and cinematograph films, which are protected by copyright. However, while they generally protect the same types of works, moral rights are separate from and additional to copyright. They are also different in some key ways, as discussed below.

NOTE: Like copyright, moral rights are automatic following the creation of a work, and an author does not need to seek registration. In Australia, an author does not need to assert their moral rights in order to enforce those, but in some other countries this is not the case. So, if a work will be distributed overseas as well as in Australia, authors should ensure that they assert their moral rights, by stating this in any contracts or agreements they enter into.

There are separate moral rights – also referred to as ‘performers’ rights’ – afforded to performers in respect of their live and recorded performances. These provide performers with the same types of moral rights as those afforded to authors of works, but there are some slightly different rules for performers’ rights, including the duration of the rights.

Who owns moral rights?

Moral rights are personal rights held by the author of a work. If there are a number of co-authors of a work, then each may have moral rights. Moral rights can only be held by individuals – in other words, they cannot be held by companies, governments and other non-individual legal entities.

Moral rights are also inalienable. This means that they will remain with the author of a work even if the author does not own the copyright in the work. For example, if an author has assigned their copyright, they will still retain their moral rights. Likewise, if an employee creates a work in the course of their employment, copyright in the work will typically be owned by the employer, but the employee will still retain their moral rights.

For cinematograph films, each of the principal director, principal producer and principal screenwriter will have moral rights (provided they are an individual and not a company).

What sort of protections do moral rights provide?

There are three types of moral rights provided to authors:

  1. Right of attribution: the right of an author to be identified as the author of their work;
  2. Right against false attribution: the right of an author to prevent someone else being identified as the author of their work; and
  3. Right of integrity: the right of an author to prevent their work from being subjected to derogatory treatment. Derogatory treatment includes anything that results in a material distortion of, the mutilation of, or a material alteration to, the work that is prejudicial to the author's honour or reputation. It also includes (a) an exhibition in public of an artistic work that is prejudicial to the author's honour or reputation because of the manner or place in which the exhibition occurs, and (b) the doing of anything else in relation to the work that is prejudicial to the author's honour or reputation.

If someone does anything which is contrary to any of these rights, that would be an infringement of the author’s moral rights.

How long do moral rights last for?

Generally speaking, moral rights will continue for as long as copyright continues to exist in a work. For more information about how long copyright lasts for, please see our article on ‘How Long Does Copyright Protection Last For?’.

There are some exceptions to this general rule. An author’s right of attribution in a cinematograph film will last only until the author dies. There are also different rules for the duration of performers’ rights.

Dealing with moral rights

As mentioned earlier, moral rights are inalienable, which means that they cannot be assigned by the author of a work. This can create problems where copyright is assigned or licensed by the author of a work, or a work is created by an employee in the course of their employment. For example, the new copyright owner or employer may wish to use the work without having to include an attribution of authorship, or they may wish to make material alterations to the work. This issue can be addressed by the author providing written consent for their works to be used in a specific way which would otherwise infringe their moral rights. If you are purchasing, licensing or commissioning a work protected by copyright, it is important to think about this and ensure that appropriate moral rights consents are included in your agreement with the author.

NOTE: While an author can provide consent for specific acts or omissions which would otherwise infringe their moral rights, they cannot provide a complete waiver of their moral rights. It is important to ensure that moral rights are drafted carefully so that they will be enforceable.

Key takeaways

Moral rights provide authors and performers with personal and inalienable rights over their works and performances. This includes the right of attribution, right against false attribution and right of integrity. Because moral rights cannot be assigned, and cannot be waived completely, it is important to think about this if you are purchasing, licensing or commissioning a work protected by copyright, and to ensure that appropriate moral rights consents are included in your agreement with the author or performer.

Actuate IP has a team of intellectual property experts who can assist with Copyright & Moral Rights. If you require assistance, you can contact our team on (03) 9098 0713 or info@actuateip.com.au and our friendly staff will make sure you are directed to the best person to assist you with your matter.

FAQs

Where do moral rights come from?

In Australia, moral rights are protected under the Copyright Act 1968 (Cth).

What are the types of moral rights?

Moral rights include the right of attribution, right against false attribution and right of integrity.

Can moral rights be waived?

Authors cannot waive their moral rights completely. However, they can provide consent for specific acts and omissions which would otherwise infringe their moral rights.