Creating an artistic work automatically attracts certain intellectual property (IP) rights and protections for the creator. One such IP right is called ‘moral rights’. If someone breaches your moral rights, you can enforce your rights against them and seek a remedy through the courts. This article explains the different types of moral rights and how you can protect yours.
What Are Moral Rights?
Moral rights allow you to protect the relationship between yourself and the work you have created. Moral rights can attach to different types of intellectual property, such as:
- literary works;
- artistic works;
- musical works;
- media works; and
- dramatic works.
Importantly, moral rights do not attach to sound recordings.
Moral rights are defined under the Copyright Act as a right:
- of attribution of authorship;
- not to have authorship falsely attributed; or
- of the integrity of authorship.
These rights are outlined in detail below. They can apply to individual artists who may sell their works and employees who create works for an employer and do not retain IP rights in the work.
Right of Attribution
The first moral right is the right of attribution. If you create work, you are entitled to have that work attributed to you. The author of a work is any person who brings the work into existence. As such, this is the person who is entitled to retain copyright in the work.
You must make your attribution clear and prominent in your work. As such, your name should appear on each reproduction or adaptation of the work so that a person can easily identify that you are the author.
Continue reading this article below the formRights Against False Attribution
The second moral right is that a third party cannot claim authorship of the work if they are not the true creator. Often, this right deals with situations where the authorship is unclear. It can also apply where someone, not the author, possesses copyright over the work.
Right of Integrity of Authorship
The third moral right is the right to the integrity of authorship. This right includes the right that you will not have your work subjected to derogatory treatment. It protects artistic integrity in both the created work and the author. Derogatory treatment generally means that someone cannot do anything that prejudices the author or the work. This includes:
- materially distorting the work;
- destroying or mutilating the work; or
- materially altering the work.
Essentially, this means that someone cannot damage or otherwise amend your work if that amendment has negative effects.
Obtaining Moral Rights
Moral rights, much like copyright, occur automatically. There is no requirement for you to register to protect these rights. They will continue until copyright ceases to exist in the created works. This is except for cinematograph films, where your moral rights continue until death. Therefore, you will receive both copyright protection and your moral rights for the same period.
Unlike other intellectual property rights, including copyright, moral rights cannot be:
- transferred;
- waived; or
- assigned.
However, as the holder of these rights, you may agree that a third party does not have to attribute the work to you or can attribute the work to another.
Defending Your Moral Rights
If you find that someone has infringed your rights, you should consider whether this party might have a defence for their infringement. The primary defence is if the other party establishes that the infringement was reasonable in the circumstances. However, the other party cannot use this defence if the infringement breaches the right against false attribution. If the infringer uses this defence, the courts will consider various factors. This defence is assessed on a case-by-case basis, considering the issues of:
- the purpose, manner and context for which the work was created;
- industry practices that may be relevant; and
- whether the work was completed in the course of employment.
A further defence applies if you have consented to the infringing activity. However, you must have consented freely, without duress or deception, for this defence to hold.
Resolutions
You may find that someone has infringed on your moral rights. Generally, you can seek a commercial and amicable resolution to the infringement on your rights. However, if you are unable to come to a resolution, you may be able to make an application to a court for a remedy.
Some of the remedies that may be available to you include:
- a court order for immediate action to stop the infringement;
- a court order that the infringement is reversed or removed;
- compensation for the loss you have suffered;
- a declaration that your moral rights have been infringed; or
- a public apology for the infringement.
Remedies for infringement are based on the nature of the infringement and the damage you have suffered.
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Key Takeaways
Moral rights automatically apply to any work you create. They are rights that your work is attributed to you, and to not have anyone distort your work. If you believe your rights have been infringed, you are entitled to enforce your rights and seek a remedy.
If you have any further questions about your rights, our experienced intellectual property lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently asked questions
Moral rights, much like copyright, occur automatically. There is no requirement for you, as an author or creator, to register to protect these rights. Moral rights will continue until copyright ceases to exist in the created works.
The defences to infringement include reasonableness of infringing activity and consent. The reasonableness defence cannot apply if the right infringed upon is the right against false attribution.
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