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MORAL RIGHTS – MORE PROTECTION FOR AUTHORS

Before the Copyright Amendment (Moral Rights) Act 2000 (‘the Act’) came into force on 21 December 2001, the new copyright owner was only subject to a duty not to falsely attribute the authorship. However, the new Act strengthens this by introducing additional protection by way of a right of attribution and a right of integrity for individuals (moral rights only applies to individuals).

So what do these mean?

Firstly, the right of attribution is the right of the creator of the work to be publicly identified as such and to prevent others from claiming authorship of the work. Further, it intends to prevent others from falsely attributing to an author works that are not his or hers or that are unauthorized altered versions of his or her work.

For example, a well-know artist has his painting published in a magazine or on a website, under the new legislation, the magazine or website must accurately identify the artist with the painting. Failure to do so would infringe the artist’s moral rights. Another example may involve a software developer whose software is under licence to a company for distribution. The company while having the licence for a specified time period is bound by the moral right of attribution to accurately identify the author of the software.

The right of attribution is for the usual copyright term, that is, the life of the author plus 70 years for musical, dramatic, literary and artistic works, and 70 years from first publication for films and sound recordings. 

Secondly, the right of integrity is the right to object to distortions or derogatory distortions of a work. This may include material distortion, the mutilation of, or the material alteration to the work that is prejudicial to the author’s honour or reputation.

For example, take a musical work written by a respected, but relatively unknown jazz composer. The rights to his song were then sold to a large record company; however unaware to the composer, instead of being recorded as a jazz song it was recorded as a ‘hip hop song’. The artist, while having no remedy in copyright since he sold the rights, would be able to enforce his moral rights and prevent the recording and publishing of the new version by claiming that the hip hop song is prejudicial to his reputation as a jazz composer.

The right of integrity also lasts for the usual copyright term for musical, dramatic, literary and artistic works however, for films it ceases upon death of the filmmaker.

Interestingly, in regards to the Internet, carriers and carriage service providers are exempt from any liability merely because a person infringes the moral rights of another while using their services.

The next question for an author if their moral rights are infringed is what remedies are available?

Under the Act an individual may seek an injunction, damages, a declaration, a public apology or that the derogatory work be removed or reversed. The court in its discretion will consider a number of factors before issuing a remedy. These include, whether the defendant was aware or ought reasonably to have been aware of the infringement, the effect on the author’s reputation, the extent of public viewing, the cost associated with identifying the author, any mitigating circumstances and the cost in removing or reversing the work.

An author may waive their right to enforce their moral rights so long as they provide written consent. Employee creators of all works, including films and sound recordings, can accordingly waive their moral rights with respect to their employer in relation to works made in the course of their employment.

Moral rights cannot be transferred or assigned in any way, but if the author dies then the estate or legal representative of the author is entitled to enforce his or her moral rights.

If you have any intellectual property queries, please do not hesitate to contact us.