Moral rights

The Copyright Act 1968 (Cth) (Copyright Act) divides copyright material into:

  • 'works' (e.g. literary, artistic, dramatic and musical works)
  • subject matter other than works (films, broadcasts, sound recordings and multimedia and published editions).

Under Australian copyright law, moral rights are personal rights that relate to 'authors' of 'works' and 'films'. Moral rights include personal rights of performers of live and recorded performances. They cannot be transferred to another person or organisation. Moral rights arise automatically in copyright protected works (literary, dramatic, musical or artistic works) and subject matter other than works (including film) but exist separately from copyright. The moral rights of performers are not covered here.

The Copyright Act provides that moral rights:

  • are personal rights of individuals who are authors of works and films (authors for films are the principal producer, director and screenwriter)
  • provide recognition and respect for authors
  • arise automatically in works and films protected by copyright
  • are distinct from copyright rights and are not 'economic' rights
  • cannot be bought and sold as they are personal to, and stay with, the author of a work or film even when copyright in the work or film is transferred.

The person who creates a 'work', or the principal producer, director and screenwriter of a film, is the 'author'. More than one person may be the author of a work if they collaborated in its creation, but simply editing a work or having some input of ideas into the development of a work or film is not enough to be considered an author of the work or film.

Under Australian copyright law, authors have 3 moral rights:

  • right of attribution of authorship
  • right to prevent false attribution of authorship
  • right of integrity of authorship.

When do moral rights apply?

Under Australian copyright law, moral rights apply to 'works' and to 'film' but they do not apply to sound recordings or TV/sound broadcasts. The term 'copyright material' is used in this section in reference to 'works' and 'film' where appropriate.

How long do moral rights last?

Moral rights usually last for the same period as copyright protection. The exception is the right of integrity for films, which lasts for the author's lifetime.

Who has moral rights?

Individual authors or authors who have jointly collaborated on creating a work or film have moral rights. Examples of such authors are:

  • the writer of training material, a journal article, a novel, etc.
  • the writer of source code or designer of a user interface of a computer program
  • a person who designs a building (e.g. the architect)
  • a person who writes songs (both the music and the words may be subject to moral rights)
  • the creator (e.g. painter) of a picture/drawing/cartoon
  • a photographer
  • a performer of 'sounds' (e.g. music and voice recordings). Performers include a musician or group of musicians, a conductor, an actor, a person performing on the radio, TV or online/digital content (including advertisements, but excluding reading the news); and in the case of films, the director, the producer (i.e. but not if the producer is a company) and the screenwriter of a film.

What right to attribution do I have?

Authors have the right to be identified or recognised as the author of their work or film whenever it is used in the following ways:

  • when the work is reproduced or the film is copied
  • when the work or film is communicated to the public
  • when the work or film is made available online or digitally transmitted
  • when the work is adapted (this right does not apply to artistic works and film)
  • when the work is performed in public (this right does not apply to artistic works and film)
  • when artistic works and film are exhibited in public.

An author's moral rights are not infringed if omitting attribution was 'reasonable' in the circumstances.

What form should attribution take?

If the author of a work or film has requested identification in a particular way, and the request is reasonable, the work or film must be identified in that way.

If an author has not requested the manner in which he or she would like to be identified as author of the work or film, then identification of the author must be clear and reasonably prominent on each reproduction, copy or adaptation of the work or film.

Clear and reasonably prominent identification means that a person would have notice of the author's identity. See the Code of Practice for the Professional Australian Visual Arts, Craft and Design Sector for more information.

Do moral rights protect against false attribution?

Authors of a work or film have the right to prevent:

  • someone else falsely claiming they are the author of the work or film
  • their work or film being altered by another and then dealt with as if it were the unaltered work or film of the author, unless the alteration is insubstantial or required by law.

The Copyright Act 1968 (Cth) (Copyright Act) sets out a list of actions that constitute false attribution. They include:

  • inserting/affixing (or authorising the same) a person's name in or on a work (including reproduction of a work) or film when that person is not the author
  • dealing with a work (including a reproduction) or film if the attributor knows that the named author is not the author
  • communicating the work or film to the public or otherwise dealing with the work or film if the attributor knows that the person is not the author.

Do moral rights protect the integrity of my work or film?

Authors have the right to object to their work or film being subjected to 'derogatory treatment'. This involves any treatment in relation to the work or film (physically or contextually) that would prejudice or harm the author's honour or reputation.

Physical acts, such as altering, amending or destroying a work or film, will amount to derogatory treatment if they harm the author's honour or reputation (e.g. defacing an original painting/drawing or making modifications to public buildings designed by an architect).

Sometimes, how a work or film is presented, or the manner and place in which an artistic work is exhibited, may also amount to derogatory treatment, if the treatment harms the author's honour or reputation.

Recent examples of claims of derogatory treatment include draping decorative ribbons over the necks of sculptured geese displayed in a shopping centre, and the inclusion of the Pig 'n' Whistle pub in the forecourt of the Brisbane Riverside Centre. The architect claimed that the pub's presence would ruin the building's geometric purity.

You do not infringe the author's rights if the action was 'reasonable' in the circumstances.

Can moral rights be transferred or given away?

Moral rights cannot be transferred to another person or company as they are personal to, and stay with, the author, even when copyright in the work or film is transferred. However, authors can give consent for the work or film to be used in a particular way. Consent will only be effective if it:

  • is given by the author or author's representative
  • is in writing
  • has not been induced by false or misleading statements or obtained by duress.

Consent can be given only for specified or types of acts or omissions in relation to the work or film that occurred before or after the date the consent was given.

How do moral rights protect employees?

An author is the person who actually created the work or film. A person who edits or authorises the work or film is not considered an author for the purposes of the Copyright Act.

An employee, when performing his or her duties in the course of employment, may be the actual creator of a work or film. An employee may give a general consent for the benefit of his or her employer in relation to all acts or omissions in relation to a work or film authored in the course of employment.

Good practice supports clearly identifying or recognising an employee who has written a significant work in the course of their employment as the author of that work.  A 'significant work' is usually a substantial/major work or work of a technical nature that is the result of considerable creative effort. Generally, works of a purely administrative or routine nature, such as briefs, memos, submissions and media releases are not 'significant works' in this context. (See 'What is considered in deciding if an infringement has occurred?' below for more information).

How do moral rights affect contractors?

All works or films created by external third parties must identify the author of the work or film unless to do so would be unreasonable, or appropriate written moral rights consent for the specified types of acts or omissions has been obtained from the author.

All contracts for the engagement of consultants/contractors must contain an appropriate moral rights clause.

What is considered in deciding if an infringement has occurred?

You do not infringe an author's rights by:

  • failing to attribute the author of a work or film
  • derogatory treatment of the work or film

provided the action was 'reasonable' in the circumstances.

Factors to be taken into account when determining if it was reasonable not to identify the author are:

  • the nature of the work or film
  • the purpose for which the work or film is used
  • the manner in which the work or film is used
  • the context in which the work or film is used
  • any industry practice or code of conduct relevant to the use of the work or film
  • any difficulty or expense that would have been incurred as a result of identifying the author
  • whether the work or film was made in the course of the author's employment or under contract for the performance of services for another
  • if the work has 2 or more authors (not applicable to films), their views about the failure to identify them.

For example, employees will not usually have an enforceable right to be attributed as the authors of everyday memos and reports. However, rights may exist in relation to other works, such as a technical article, where it is typical industry practice to acknowledge the author.

Conduct that would otherwise be derogatory treatment of a copyright work could include such things as editing an article to remove inaccuracies or offensive content prior to publication.

Special procedures apply under the Copyright Act in relation to owners dealing with buildings and other public artistic works.

However, there is no defence of 'reasonableness' for false attribution, unless the author has consented in writing to the false attribution.

Also consider...