Written by Alyce Evans and Principal, Jennifer Tutty.
When you create an original work, Australian copyright law grants you a bundle of rights to deal with that work. The most commonly known are the right to reproduce and publish your work, and to prevent others from copying or using it.
What are less commonly known, are the moral rights that follow the creation of a work. These include the rights to be properly identified as the author of the work, to ensure others don’t falsely claim the work as their own, and to prevent others from treating your work in a derogatory way.
Whether you’re a creative who wants to ensure their moral rights are being respected, or you’re planning to use a copyright work and don’t want to infringe moral rights, we’ve got you covered.
In this blog, we introduce you to the wonderful world of moral rights.
What are moral rights?
Moral rights are a relatively recent concept in Australian copyright law (introduced to the Copyright Act 1968 (Cth) by amendment in 2000). They concern the reputation of the copyright author in connection with their work. These rights are separate and additional to copyright.
Moral rights are:
– The right to be attributed as the author of the work;
– The right not to have the work falsely attributed to someone else; and
– The right to take action if the work is treated in a derogatory way (i.e. a way that could be harmful to the author’s reputation). This is sometimes known as a ‘right of integrity’.
Who owns the moral rights in a work?
Unlike copyright, moral rights cannot be bought or sold. They belong to the original author of the work, even if that author sells or assigns the copyright.
‘Authorship’ under the Copyright Act 1968 (Cth)
When it comes to the Copyright Act, the term ‘author’ has an expanded meaning. It is the person who creates, writes, composes, paints, draws, codes or does anything else to bring into existence the copyright ‘work’. So, if you write a song, you are the ‘author’ of that song, for copyright purposes.
How long do moral rights last?
Moral rights continue for as long as the copyright in the work continues, which is usually the life of the author plus 70 years. Even when an author dies, their personal representative, such as the executor of the estate, may still exercise the author’s moral rights.
The exception here is in the case of films, where the right of integrity will only continue for the lifetime of the director, producer or screenwriter.
How to protect your moral rights
In Australia, there is no need to assert your moral rights in the work. In other words, you do not need to state that you have moral rights for them to be enforceable.
However, asserting these rights may be required in some other countries, including New Zealand. If your work could be used in other countries, you should seek legal advice to ensure you have appropriate clauses in your contracts asserting your moral rights.
Tips to protect your moral rights:
– Always look out for moral rights clauses in contracts and do not agree to clauses you do not understand.
– If you have been asked to give consent for acts and omissions, which would otherwise infringe your moral rights, you should seek legal advice to ensure you are not giving unnecessarily broad consents.
– Look out for contracts that ask you to waive, assign or otherwise ‘give up’ your moral rights. These rights cannot be assigned or waived in Australia, but waivers may be enforceable and even appropriate if your work may be used overseas.
– Consider how you want to be attributed in relation to the work. You may want to specify that the title of the work is always stated, together with the year it was created or first published.
What happens if your moral rights are infringed?
If you can establish your moral rights have been infringed (and the infringing party cannot establish that an exception or defence applies), a court may grant you:
– Financial compensation (damages);
– An injunction to stop the use of the work;
– A public apology;
– An order for a declaration that the infringement be addressed; or
– An order for a declaration to reverse or remove the derogatory treatment of the work.
How to avoid infringing someone else’s moral rights
If you are dealing with literary works, musical works, dramatic works, or artistic works, or films made after 21st December 2000, you should be careful to address moral rights. If you do something that is contrary to an author’s moral rights, it will likely be considered an infringement.
Tips to avoid infringing the moral rights of others:
– Make sure that you are attributing the correct author of the work when you are reproducing it or communicating it to the public. The attribution must be clear and reasonably prominent.
– Avoid making any changes to the work, which could be considered derogatory. This can include using the work in a context that prejudices the author’s reputation.
– If you have altered the work in any way, make sure you are not representing the work as the author’s unaltered work.
There are some situations where you may not have to address moral rights. For example, it will not be an infringement if the act is ‘reasonable’ in the circumstances. Additionally, an act will not be infringement if the author has given consent to that act.
As we have discussed, a court can make orders to remedy the infringement of moral rights, including damages and injunctions. If you think you have infringed someone else’s moral rights, you should seek legal advice about how to mitigate the damage.
Written by Alyce Evans and Principal, Jennifer Tutty.
Published 17 October 2022.
For further information on copyright law, check out our blog on the 9 common mistakes people make about copyright.
The information in this article is of a general nature. It does not constitute formal legal advice, and should not be relied on as such. Please see the full disclaimer in our website terms. Please contact Studio Legal if you are seeking advice about a specific legal matter.