Moral rights

When you create an artistic work, you automatically have certain intellectual property (IP) rights over it.

One kind of these IP rights are moral rights.

If someone breaches your moral rights, you can enforce your rights against them and seek a remedy through the courts.

This guide explains what types of moral rights there are and how you can protect them.

What Are Moral Rights?

Moral rights allow for the protection of 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.

They 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 integrity of authorship.

These rights can apply to individual artists who may sell their works, as well as 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.

This right means that 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.

The attribution of you, as the author, must be clear and prominent on the work.

As such, your name should appear on each reproduction or adaptation of the work so that a person will easily be able to identify that you are the author.

Rights Against False Attribution

The second moral right is that a third party must not be identified as the creator of works when they are not.

Often, this right deals with situations where the authorship is unclear, or where copyright in the work has previously been assigned to someone else who is not the author.

Right of Integrity of Authorship

The third moral right is the right of integrity of authorship.

This right includes the right that you will not have your work subjected to derogatory treatment.

It seeks to protect 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, such as:

• materially distorting of the work;
• destructing 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, as an author or creator, to register protection 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 your 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 moral rights, you should consider whether this party might have a defence for their infringement.

A defence to infringement will be if the other party establishes that the infringement was reasonable in the circumstances.

The other party, however, cannot use this defence of reasonableness if the infringement was a breach of the right against false attribution.

If the infringer uses this defence, the courts will consider a range of factors.

This defence is assessed on a case-by-case basis, looking at some of the following issues:

• the purpose, manner and context for which the work was created;
• any industry practices that may be relevant; and
• whether the work was completed in the course of employment;

A further defence if you consented to the relevant act, is that consent must have been given freely and cannot be obtained by duress or deception.

Resolutions

As a creator of works, you may find that someone has infringed 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 are:

• 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.

Conclusion

Moral rights automatically attribute 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 that your moral rights have been infringed, you are entitled to enforce your rights and seek a remedy.