When we speak of moral rights in the context of intellectual property protection, we are referring to the personal rights of a creator to control, protect and enforce the artistic integrity that subsists in all manner of produced intellectual property works. Moral rights may attach to all manner of intellectual property including literary, artistic, music, media and dramatic works. The three main types of moral rights are:

  • the right of attribution;
  • the right against false attribution; and
  • the right against derogatory treatment.

The Right of Attribution

The first of the moral rights, the right of attribution, means that an author or creator of a work is entitled to assert their authorship in the work in any situation in which the work is utilised, presented, reproduced or disseminated. To put it another way, every authority has an ingrained and an unfettered right to be recognised as the creator of the work.

Authorship in itself can be a convoluted topic, particularly when multiple parties actively contributed to the creation of a work. The term ‘author’ is undefined in the Copyright Amendment (Moral Rights) Act 2000 (Cth). In the case of IceTV Pty Ltd v Nine Network Australia Pty Ltd ([2009] HCA 14 at 98), it was held that an author is any person who brings the copyright work into existence in its material form. In this respect, the definition is broad enough to encompass writers, artists, graphic designers, craftsmen, filmmakers, musicians and even architects.

The Right against False Attribution

While the right of attribution primarily deals with situations where no authorship is assigned to a work, the right against false attribution concerns circumstances where a third party or even an alias in falsely deemed to be the creator of another’s work to the exclusion of the true author. Under such conditions, the true author has a right of redress against the infringing party or parties responsible for the false attribution.

The Right against Derogatory Treatment

Moral rights can be generalised as serving two main functions, namely, the protection of artistic integrity which subsists in the work and the protection of artistic integrity which subsists in the artist as a person. To put it simply, moral rights are aimed at safeguarding the reputation of the work and the creator of the work. Towards this end, an author can take legal action against anyone who submits their work to derogatory treatment.

Derogatory treatment is broadly defined under the Copyright Amendment (Moral Rights) Act 2000 (Cth) and includes any act or commission which materially distorts, destroys, mutilates or alters the work in question in a manner that is prejudicial to the author’s reputation or honour (section 195AJ).

Scope and Breadth of Moral Rights

Moral rights are automatic and subsist in all copyright materials. An author does not have to apply for such rights, however, they must actively pursue infringement of their moral rights.

As with copyright, moral rights subsist for a period of seventy (70) years after the author’s death (section 195AM(2)&(3) of the Copyright Amendment Act (Moral Rights) 2000 (Cth)). Special mention must be made of films, as moral rights only subsist in cinematic works during the life of the author and are extinguished thereafter.

Transfer of Moral Rights

As eluded to previously, moral rights are personal to the author, as such they cannot be transferred, licensed, assigned or otherwise disposed of. Having said that, it is possible to consent to an infringement of your moral rights. In other words, an author can permit another to:

  • not attribute the work to the author;
  • attribute the work to another; or
  • reproduce, modify or otherwise alter the work.

An infringement of moral rights is usually consented to as a matter of commercial practicality and for almost always for a fee.

Defence of Reasonableness

It is a defence to an infringement of an author’s moral rights if the accused party can show that the infringing conduct was reasonable in the circumstances. What amounts to reasonable conduct is to be determine on a case by case basis, being largely fact specific. Nevertheless, in undertaking an assessment of the same the following factors are relevant:
the context;

  • the manner and purpose for which the work in question was created;
  • the nature of the work;
  • industry standards (if any).

For example, if you commission an artist to create a trademark for you which you intend to use in several variations and for multiple purposes, you would generally have a reasonable expectation that you can make use of the trademark and modify it if need be without having to defer to and attribute the work to the author on every single occasion. If you have any questions about moral rights or require assistance in protecting your IP, get in touch with your intellectual property lawyers.

Vanja Simic

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