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
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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.