Contractors are extremely useful to business owners seeking to outsource specific skills for a short-term period. Contract lawyers are often asked to draft a clause into the Contractors Agreement that protects the Intellectual Property (IP) rights of business. It is equally important to protect the Principal against claims of infringement of the contractor’s (or its employees’) moral rights during, or after, the Agreement. Have your contract lawyer include a clause dealing with the moral rights of the contractor or its employees so that the Principal may choose how, when and what to use of the IP created during the Agreement.

Understanding moral rights

Moral rights protect the reputation of creators and the integrity of their work, even after the copyrights have been sold or transferred. Moral rights were introduced under the Copyright Amendment (Moral Rights) Act 2000, and give creators several notable rights, including:

  • The right to have their name attributed to their work;
  • The right to not have their work be falsely attributed;
  • The right to not have their work be treated in a derogatory manner

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

Infringement

Your contract lawyer should be aware of the various ways by which infringement of moral rights can occur:

  • Improper attribution or false attribution;
  • Reproduction of work that lacks proper attribution;
  • Treating a work in a derogatory manner; and
  • Using a work that has been treated derogatorily for commercial      purposes.

Defences to Infringement

A contract lawyer should be aware of the exception to infringement of moral rights when constructing a Contractors Agreement. Specifically, your contract lawyer should draft clauses that facilitate the creator’s consent so that the Principal does not infringe the moral rights of the contractor (or its employees).

Important sub-clauses

  1. If the Contractor (or any of its employees or agents) has Moral Rights in any Intellectual Property owned by the Principal, they:

i.         irrevocably consent to any amendment of the Intellectual Property in any manner by the Principal for the purposes of the Principal’s business without further reference to the Contractor;

The above allows the Principal to use or change any material created during the term of the Contractors Agreement.

ii.         irrevocably consent to the Principal using or applying the Intellectual Property for any purpose connected with its business without any attribution of authorship;

Ordinarily, moral rights would not be saleable or transferable. If, however, your contract lawyer drafts a sub-clause authorizing the use and application of any IP by giving ‘creator’s consent’, the Principal will be entitled to use the work without proper attribution. This applies in much the same way as works created by employees ‘during the course of employment’.

iii.         agree that their consent extends to acts and omissions of any of the Principal’s licensees and successors in title; and

This ensures that you’re entitlement to use the IP continues with the business. Your contract lawyer should aim to protect the ongoing interests of the business.

iv.         agree that their consent is a genuine consent under the Copyright Act 1968 (Cth) and has not been induced by duress or any false or misleading statement.

Obviously, consent obtained through duress is not consent at all. Get your contract lawyer to draft a sub-clause that acknowledges the genuine nature of the consent.

Conclusion

Although your contract lawyer can insert clauses that limit the moral rights of the creators (or at least the extent to which the creator can object to the particular use of the IP), your contract lawyer will not be able to draft the Contractors Agreement so that the moral rights become those of the business. This is because only individuals can own moral rights.

For more detailed legal advice regarding drafting a ‘moral rights’ clause of a Contractors Agreement, contact LegalVision on 1300 544 755 to speak with a contract lawyer about what to include in the Contractors Agreement and how to draft the various provisions.

Lachlan McKnight

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