Moral Victory: Moral Right and Copyright

As the author of copyrighted works, you should be aware that under the Copyright Act 1968 (Cth), certain moral rights are given to you. A moral right is a right grranted in addition to all other rights that attach to your work. Whether you are an author of literary, dramatic, musical, artistic or cinematographic work, moral rights are conferred if you are the author of a copyrighted work.

Who is the Author?

The author is the writer or creator of the artistic work. For example, for a film, this refers to the maker. An author’s moral rights (other than the right of integrity of the author) continues until copyright ceases to exist in the work. The right of integrity of the author for a film continues until the author dies; for any other work it continues until copyright ceases to exist.

Moral rights are not transmissible by assignment, will or devolution. However, if a work has two or more authors, the authors may enter into a written co-authorship agreement agreeing not to exercise their right of integrity of the author except jointly with the other authors.

Moral Right to be Attributed

As the author of an artistic work, you have the moral right attributed. This attribution means that if someone else has made an ‘attributable act’, you can ask for your work to be credited to you. ‘Attributable acts’ include:

• Reproduction of your work in a material form;
• Publication or performance of your work;
• Communication of your work to the public;
• Adaptation of your work;
• Exhibition of your work (if art or film).

The attribution to you as the author should be clear and reasonably prominent, in a way that any person with a copy of the work will be able to identify you as the author.

You also have the right not to have your work falsely attributed to somebody else. This includes any acts that blatantly or impliedly indicates another person to be the author of your work, whether in reproduction, performance or during dealing with your work in general. Note that if you are a maker of a film which has been altered, it is also considered an act of false attribution for the director, producer or screenwriter to deal with the altered copy of the film as an unaltered film.

Moral Right of Integrity of Authorship

You have the right not to have your work subjected to derogatory treatment. Under the Act, derogatory treatment refers to any action that:

• Results in a material distortion of, mutilation of, or material alteration of your work which is prejudicial to your reputation; or
• Doing anything about the work in general that is prejudicial to your reputation as the author (including exhibiting artistic work in a manner or place that is prejudicial).

There are certain acts that will not count as infringement. This includes:

• Where consent is given – for example, if you have consented not to have your work attributed to you. Note that consent is invalidated by duress or false or misleading statements.
• Moveable artistic works – if reasonable opportunity has been given to you to move your work and you have not done so, destruction of your work is not seen as derogatory treatment in violation of your rights.
• Art affixed to a building – changing, relocating or destroying art that is affixed or forms part of a building will not be an infringement of rights if the identity of the author cannot be identified or if the owner of the building has given written three weeks’ notice.

Key Takeaways

Work that you have created is protected by copyright and also by moral rights. These moral rights are in force for any copyrighted piece of work, hence it is a good idea to ensure that you are aware of these rights and whether others have infringed them. If one of your moral rights have been infringed, as the author you may bring an action in respect of the infringement. A court may grant relief including injunctions, damages for loss, declaration that your moral right has been infringed, an order for a public apology or an order for removal/reversal of any false attribution or derogatory treatment. If you have any questions about moral rights, get in touch with our intellectual property lawyers.