Anyone who creates artistic, dramatic, musical, literary or filmic work automatically have intellectual property rights over it. One kind of these IP rights are moral rights. Moral rights are personal rights about being properly named and credited when your work is used.
These rights are separate to copyright as they concern the reputation of the author of the copyright in connection with their work. Unlike copyrights, the moral rights will forever belong to the creator of the work because they cannot be bought and sold.
Moral rights begin when a work is created and will continue until copyrights cease to exist in the created work. Usually up to 70 years after your death.
Under the Copyright Act, moral rights specifically include:
1. Right of Attribution
If you create work, you are entitled to have that work attributed to you as the author of the work. The attribution of you, as the author, must be clear and prominent on the work and should appear on each reproduction or adaption of the work.
2. Rights Against False Attribution
As the author, you hold the right to not to have the work falsely attributed to someone else. This right also deals with situations where the authorship is unclear.
3. Right of Integrity of Authorship
The right to take action if the work is treated in a way that could be harmful to the author’s reputation. Including the right that you will not have your work subjected to derogatory treatment. Protects artistic integrity in both the created work and the author.
Consequences of Infringing Moral Rights
If one of your moral rights have been infringed, you may take action in the courts. There are only two circumstances when moral rights infringement is allowed.
First, moral rights infringement is permitted when the artist has consented to the action or omission that would otherwise be considered to infringe moral rights. The consent must be valid meaning given freely and not obtained by duress or deception.
Second, an exception to moral infringement is if the defence of reasonableness applies. The other party must establish that the infringement was reasonable in the circumstances. However, this defence is not available where the infringement was a breach of the right against false attribution.
If these exceptions do not apply, it is recommended to seek a commercial and amicable resolution to the infringement with the other party. However, an application to a court for a remedy can be made.
The remedy the court may grant can be financial compensation (damages), an injunction to stop the use, a public apology, or an order for a declaration that the infringement be addressed or to reserve or remove the derogatory treatment of the work. The remedy conferred by the courts will be dependent on the nature of the infringement and the damage you have suffered.
Protecting your Moral Rights
Pursuant to the Copyright Act, there is no need to assert moral rights in the work. This is because moral rights occur automatically. However, if a piece of creative work could be used in other countries, it is important to seek legal advice as to the rights provided for in the relevant country.
In addition, while moral rights cannot be waived or assigned in Australia, one should be careful of contracts that include such a clause as it may be enforceable in that context.
In summary …
Moral rights are automatically ascribed to any work created. They operate to safeguard and ensure that your work is appropriately attributed to the original creator, and to not have anyone adversely affect the work.
In the event where it is established that moral rights have been infringed, the creator is entitled to enforce their rights and seek a court-ordered remedy.
If you would like to speak with our intellectual property lawyers, just contact us via 1300 337 997 or by filling out the contact form.