Australia: Moral Rights and Government Agencies

Intellectual Property Update
Last Updated: 21 March 2010
Article by Anthony Willis and Caroline Atkins

This Intellectual Property Update aims to provide you with a basic understanding of moral rights in order to help you ensure that your agency does not inadvertently infringe a person's moral rights.

What are moral rights?

Moral rights refer to a collection of rights that are conferred on the creators of copyright works (books, paintings, etc) and films by the Copyright Act 1968. These rights are:

  • The right of a creator to be clearly and prominently identified as the creator of the work - the right of attribution.
  • The right of a creator not to have authorship of a work falsely attributed to another person - the right against false attribution.
  • The right of a creator to object to 'derogatory treatment' - the right of integrity.

Derogatory treatment means doing anything in relation to the work which prejudices the creator's 'honour or reputation'.


An agency commissions a painting to use on the cover of its annual report. The agency owns the copyright in the painting. However, the agency may infringe the artist's moral rights if it includes a copy of half of the painting on its website, or uses copies of the painting on promotional coffee mugs, in a manner that prejudices the artist's reputation.

Moral rights are automatic. The creator of the work does not need to apply for, or register, their moral rights.


The Copyright Act provides a defence of reasonableness such that:

  • There is no infringement of the right of attribution if it was reasonable in the particular circumstances not to identify the creator. (For example, failing to give attribution to the creator of the work may be determined to be reasonable if after significant investigation the creator of the work could not be identified).
  • There is no infringement of the right of integrity if the derogatory treatment or other action was reasonable. (For example, manipulating a work may be determined to be reasonable if it is accepted practice in the relevant industry).

There is no defence of reasonableness for false attribution.

Duration of moral rights

The right of integrity in a work lasts until the death of the creator of the work. The other moral rights (the right of attribution and the right against false attribution) continue in force until copyright in the work expires.

The relationship with copyright

Moral rights and copyright are different things. When a person creates a work, a book for example, this results in three distinct elements:

  • the physical item (ie copies of the book).
  • the copyright in the book - also known as the 'economic right' (the rights to do certain things with the work such as to make a reproduction or adaptation of it).
  • the moral rights.

These three elements can all be 'owned' by different people. For example, it may be that the physical item is owned by the person who purchased the book at the bookstore, the copyright is owned by the publisher (having purchased the copyright from the author) and the moral rights are 'owned' by the author.


Unlike copyright, moral rights are only conferred on individuals and are not able to be transferred. Therefore, a party that purchases or licenses the copyright in a work from the creator of the work must still ensure that they do not use the work in a way that would infringe the creator's moral rights.


One right of a copyright owner is to 'make an adaption of the work'. However, in making that adaption the copyright owner will need to ensure that they do not infringe the creator's moral right of integrity by making an adaption that is a 'derogatory treatment' of the work.

Moral rights consents

Although moral rights cannot be transferred, the creator of a copyright work can give a party a written consent to do an act that would otherwise infringe the creator's moral rights.

It has become very common to request moral rights consents from potential creators of copyright works. Typically an agreement to transfer copyright in a work will be accompanied by or include a moral rights consent in relation to that work.

It is often advisable for an agency to seek a moral rights consent even if it intends to clearly give attribution to the creator of the work and has no intention to deal with the work in a derogatory manner. This is because the moral rights consent acts as 'backstop protection', in case an employee of the agency inadvertently infringes moral rights.

What can my agency do?

Agencies must either:

  • Ensure that they do not infringe the creator's moral rights in the work.
  • Obtain from the creator of the work a freely-given written consent to the doing of the acts that would otherwise infringe the moral rights.

Here are some practical tips:

  • Consider obtaining moral rights consents from employees by including a moral rights consent in your agency's employment agreements. Many of the copyright works that an agency deals with are created by employees.
  • Consider obtaining moral rights consents from nonemployees by inserting in your agency's template contracts a requirement for:
    • contractors who are individuals (for example, sole traders or volunteers) to give moral rights consents; and
    • contractors who are not individuals to obtain moral rights consents from their staff and independent contractors who may create copyright works.
  • A 'blanket' consent which is acceptable for employees may not be effective for non-employees. Ensure that consents obtained from non-employees (such as contractor personnel, commissioned artists, etc) clearly identify:
    • the specific work(s) to which the consent relates (for example, photos of Canberra skyline taken by Fred Smith on 1 January 2005); and
    • the specific acts or omissions to which the creator is giving their consent (for example, to not attribute the creator in the March 2010 edition of My Agency Magazine).
  • Ensure that your agency's intellectual property register records the creator of the work and whether or not they have given a moral rights consent.
  • Ensure that your agency's IP policy clearly sets outs the agency's standard position on moral rights.
  • Ensure that staff at you agency have been given adequate moral rights training (distributing this Intellectual Property Bulletin is a good starting point, although a more extensive face-to-face IP training session would be beneficial for staff who regularly deal with copyright works).
  • When giving attribution to a creator, determine if the creator has specified a particular way in which they wish to be identified. If so, identify them in that way.


If a government agency infringes a creator's moral rights it could lead to one or more of the following:

  • A court declaration that a moral right of the creator has been infringed.
  • A court order to pay financial compensation to the creator (an award of damages).
  • A court order to stop the infringing activity (an injunction).
  • A court order to publicly apologise for the infringement.
  • A negative public reaction or political embarrassment.

Case Study – Meskenas

In the Australian case of Meskenas v ACP Publishing Pty Ltd (2006) 70 IPR 172, damages were awarded for an infringement of moral rights.

ACP is the publisher of the magazine Woman's Day. It published an issue of Woman's Day that included a photograph of Princess Mary standing in front of a portrait of the late Dr Victor Chang. The portrait was painted by Mr Meskenas, but the caption in Woman's Day incorrectly attributed the portrait to another artist.

Copyright in the painting was owned by the estate of Dr Chang, who had commissioned the painting and performed a triple bypass operation for Mr Meskenas as consideration. Therefore, Mr Meskenas' only redress under the Copyright Act was for infringement of his moral rights. ACP was found to have infringed Mr Meskenas' moral rights and was ordered to pay damages of $1100 for wrongful attribution (infringement or moral rights) and aggravated damages of $8000 for the additional hurt caused by its failure to publish an apology and correction in a timely manner once made aware of its error.


In Australia, protection of moral rights came into force on 21 December 2000 with the enactment of the Copyright Amendment (Moral Rights) Act 2000 (Cth).

The Act was introduced to ensure greater respect for the integrity of creative endeavour and to give full and proper effect to Australia's obligations under the Berne Convention for the Protection of Literary and Artistic Works - the main international convention on copyright.

© DLA Phillips Fox

DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.