Moral rights have been part of Australian intellectual property law for more than ten years, but they are often poorly understood. Authors and creators of written, coded, visual or audio content often have moral rights in that content. As a result, moral rights issues can arise in almost any kind of business. This article covers some key issues for businesses dealing with authors’ moral rights (as opposed to performers’ moral rights, which operate differently).
What are Moral Rights?
Content does not have to be very creative to attract moral rights. If there is copyright, there are moral rights. I have moral rights in this article. Coders have moral rights in the code they write. Logo designers may have moral rights in their original logos. You can even have moral rights in relation to the emails you write.
Creators of most kinds of creative content have three moral rights:
- a right to have their work properly attributed to them whenever it is copied or communicated to the public by any medium;
- a right not to have other people’s content falsely attributed to them or their own content falsely attributed to someone else; and
- a right not to have their work subjected to ‘derogatory treatment’.
‘Derogatory treatment’ has a broad and vague meaning. It includes doing anything to the work that is ‘prejudicial to the author’s honour or reputation’. Even a very small alteration or addition to the content can be a ‘derogatory treatment’ that infringes moral rights.
Moral rights are different to other kinds of intellectual property as they are personal to the author. Copyright, for example, provides its owners with a means to commercialise content: it gives them a monopoly right to copy and distribute it. Authors can sell copyright, and businesses can buy it, to realise commercial value. That is not the case for moral rights. Individuals cannot sell, transfer or licence moral rights. A transfer of copyright or other intellectual property rights does not transfer moral rights. Moral rights are there to protect authors’ status, reputation and sense of connection to their work. They stay with an author (or his or her heirs) until they expire.
Why Moral Rights are Relevant
It is not practical for most businesses to attribute the authors of emails, policies, memos, web-pages, code, images or logos that they use or sell. Businesses also need the ability to alter and develop content, systems and code to suit their objectives. If a business uses and develops day to day business content without regard to moral rights, there is a risk of liability for moral rights infringement, even if the business owns the intellectual property rights in that content.
How to Protect Against Liability For Moral Rights Infringement
To determine whether moral rights have been infringed, consideration is given to industry practice. This may give some protection but leaves you open to uncertainty. It is always better to have protected yourself proactively.
It is common for contracts for goods or services to make provision for moral rights. This includes employment contracts, contractor agreements, IP licences, service agreements and application development agreements. Corporations and firms do not have moral rights, and they cannot buy them from individuals. The way businesses in Australia minimize the risk of infringing moral rights is by:
- getting the written consent of individuals to the doing of acts that would infringement their moral rights if no consent had been obtained; or
- requiring other businesses, with whom they work, to obtain moral rights consents from content producers and getting warranties from those businesses in this regard.
In employment contracts, for example, employers often require employees to provide moral rights consents in relation to all copyright content they create in the course of their employment. In contractor agreements, businesses receiving goods or services require contractors to obtain moral rights consents. Employee consents can be broad while any other consents must be specific. The Copyright Act sets out the conditions for such consents to be valid.
- Moral rights apply to most written, audio and visual content, including computer programs.
- Moral rights are different from other intellectual property rights like copyright.
- Getting ownership of authors’ copyright or other intellectual property does not give you ownership of their moral rights.
- Without proper moral rights consents in place, normal business practices like altering and developing content can attract liability for moral rights infringement.
- Businesses should make sure their contracts deal property with moral rights by including the proper consents.
- Moral rights consents need to comply with specific rules to be valid.