Don’t Forget Your Moral Rights

10 September 2019
Posted by Sarah Luttrell

Moral rights are a relatively recent concept in Australian copyright law, having been introduced to the Copyright Act 1968 (Cth) by amendment in 2000. Moral rights concern the reputation of the author of the copyright in connection with their work. These rights are separate to copyright, and even if the copyright in the work changes hands, the moral rights will always belong to the author of the copyright.

What are moral rights?

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’.

Moral rights cannot be bought or sold and will continue for as long as the copyright in the work continues (usually 70 years after the author’s death). 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 the case of films, where the right of integrity will only continue for the lifetime of the director, producer or screenwriter.

What happens if my moral rights are infringed?

If you can establish your moral rights have been infringed, a court may grant you financial compensation (damages), an injunction to stop the use, a public apology, or an order for a declaration that the infringement be addressed or to reverse or remove the derogatory treatment of the work.

There is, however, no moral rights infringement if:

– the author has consented to the action or omission that would otherwise infringe moral rights; or
– an exception or the defence of reasonableness applies.

How do I protect my moral rights?

In Australia, there is no need to assert your moral rights in the work. However, asserting your moral 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.

Consider the following tips for protecting 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 which ask you to waive, assign or otherwise ‘give up’ your moral rights. Moral 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.

How do I 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 21 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.

Consider the following tips to avoid infringement of moral rights:

– Be sure 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, be 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, or if the author has given consent to the act that what would otherwise be an infringement.

As above, a court can make orders to remedy the infringement of moral rights, including damages and injunctions. If you think you have infringed the moral rights of an author, you should seek legal advice about how to mitigate the damage.

Still have questions?

If you are an author who wants to ensure their moral rights are being respected, or you are using or planning to use a copyright work and want to avoid infringement of moral rights, please give us a call on 03 9521 2128, or email us at hello@studiolegal.com.au.

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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.