If your business engages a contractor who creates intellectual property, your contractor may have moral rights attached to their work. Moral rights are rights that protect the intellectual property of creators. For example, an artist’s name should always appear next to their artwork in an exhibition. As a business, it is important that you do not infringe upon your contractor’s moral rights. Moral rights clauses in your contractors agreement can serve to protect your business from infringement claims.

In this article, we explore what a moral rights clause is and how you can avoid moral rights infringement claims.

What Are Moral Rights?

Moral rights protect the reputation of creators and the integrity of their work.

For example, an art gallery cannot show an artist’s work in a way that would alter its meaning.

This protection extends even after copyright is sold or transferred. Under the Copyright Amendment (Moral Rights) Act, moral rights are the right to:

  • have their name attributed to their work;
  • not have their work be falsely attributed; and
  • have their work respected and not subjected to derogatory treatment.

Moral rights last as long as copyright in Australia, i.e., the life of the creator plus 70 years.

What Is a Moral Rights Clause?

Moral rights clauses are often part of IP clauses in a contractors agreement. The clause can require the contractor to allow their work to be used in a way that may breach their moral rights.

You can infringe the moral rights of a contractor if you use their work in an inappropriate manner. Moral rights infringement can occur through:

  • false or improper attribution;
  • reproduction of work that lacks proper attribution; and
  • treating the work in a derogatory way. This includes significant distortion, mutilation, or alteration of the work that could damage the author’s honour or reputation.

Examples of Moral Rights Clauses

Consent Clauses

It is common for a moral right clause to require the contractor to consent to the use of their work or materials without proper attribution. This clause can also apply to third parties. It is the contractor’s responsibility to ensure that third parties have consented to the use of their work in this way. As a result, if the business infringes the third party’s moral rights, the contractor may need to pay compensation.

Indemnity Clauses

It is also common for the contractor to provide indemnity for the breaches of third party rights. This means that if the contractor’s work breaches any third party’s moral rights, you cannot be sued for breaching those rights by using the work. By providing you with indemnity, the contractor will be legally responsible instead. Essentially, this indemnity protects you from any infringement of the moral rights of third parties.

Survival Clauses

Moral rights clauses often contain a survival clause.

For example, “This clause x will survive expiry or termination of this Agreement.

This means that even after the agreement comes to an end or is terminated, the specified clause or clauses will continue to bind the relevant parties. As moral rights last the life of the creator plus 70 years, the clauses surviving termination could bind the parties for this entire duration.

Key Takeaways

It is important when using the intellectual property of a contractor that you do not infringe their moral rights. As a business, you can protect yourself from infringing moral rights through the use of a moral rights clause. Moral rights clauses often require the contractor and third parties to allow their work to be used in ways that may breach their moral rights. In addition, contractors may provide an indemnity against breaches of moral rights. This protects you from infringing the moral rights of your contractor. Survival clauses can bind parties even after the agreement ends. If you have any questions about moral rights clauses or about your contractors agreement, contact LegalVision’s contract lawyers on 1300 544 755 or fill out the form on this page.

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