Moral rights

Moral rights

Contents

Moral rights are rights that the creator of a work is automatically entitled to and which no one else can claim. The moral rights of a work can even remain with the creator after their death.

Moral rights exist alongside copyright in certain types of work. Generally, moral rights remain with the author of a work or pass to the author's estate on death. Unlike copyright, moral rights cannot be assigned (legally transferred). However, they are frequently waived.

Moral rights are divided into four categories as follows:

  • The right to be identified as the author or director of a work, often known as paternity right
  • The right to object to derogatory treatment of a work sometimes known as integrity right
  • The right to privacy of certain photographs and films
  • The right to object to false attribution of a work

The first three rights mentioned above exist for as long as copyright exists in a work i.e. life plus 70 years. The last right, that is to object to false attribution of a work, lasts until 20 years after a person's death.

The existence of moral rights raises an important additional element in the negotiation and drafting of certain agreements. Unfortunately, for many authors the transfer/licence of copyright is often accompanied by the insistence of the purchaser on the waiver of those moral rights.

Paternity rights

The author of a copyright literary, dramatic, musical or artistic work or the director of a copyright film has the right to be identified as the author or director of the work.

In order to be enforceable, this right needs to be asserted in writing either in the form of a statement on the text itself or by a letter written by the author to the person who will be dealing with the copyright in the work. In other words, if the right to be identified is not asserted in either of these ways, the person may deal with the copyright in the work without being obliged to identify the author. Once the right to be identified is asserted, various people will be bound by such an assertion.

If the assertion of the right to be identified is contained in an assignment of a copyright, the person to whom the copyright is assigned (the assignee) and anyone to whom any rights in the copyright may have been given or passed by the assignee or on the assignee's death will be bound by the assertion of the right to be identified whether or not they have notice of it. An author's right of paternity may be asserted as follows:

'The author has asserted his/her moral right in accordance with Section 77 of the Copyright, Designs and Patents Act 1988.'

Authors and directors are well advised to insist upon this right in any dealings with their copyright works. In practice, if they are able to assert such a right, if the work is published commercially, performed in public, broadcast, or copies of the work are issued to the public, the author must be identified.

If a film is based upon a book then the author of the book must be identified or given a credit in the film. This right does not apply to computer programs, typefaces, or any computer generated works. It does not apply to work created by an employee whose employer is the first owner of the copyright in the work or the director of a film, where the director is not the author of the film for copyright purposes.

It is not infringed where any of the exceptions to infringement apply under Section 79 of the 1988 Act. For example, fair dealing with the work (this relates to the use of the work for the purpose of research, private study, for criticism, review and news reporting) or incidental inclusion of a work, for example:

  • There is a fleeting or partial glimpse of some copyright work e.g. a snippet of a programme on a television screen in the background of shot
  • A quick camera pan across a poster on a wall or a billboard on the street
  • A brief or partial shot of a magazine cover, for example, in a doctor's waiting room where filming is taking place
  • Where there is some background music playing where you are filming, e.g. in a lift or shop (and it has not been deliberately included e.g. added in the edit)

It does not apply to any work made for the purposes of reporting current events and does not apply in relation to publication in a newspaper, magazine or similar periodical, or an encyclopaedia.

Right to privacy of photos & films

A person who, for private and domestic purposes, commissions the taking of a photograph or the making of a film, where copyright subsists, has the right not to have copies of the work issued, exhibited or shown in public or broadcast in public. Anyone who does authorise the doing of any of those acts will infringe this right to privacy. Some exceptions to this right do exist and infringement will not occur when the inclusion of such a photograph or film is incidental.

This right to privacy is enforceable by the commissioner of the work and not the subjects of it (i.e. who the photograph is of) and the subjects may have other legal remedies under contract or tort law (or, in Scotland, under the law of delict).

This right to privacy is of limited use to protect a member of the public whose photograph has been taken. The work must have been commissioned and must be for private or domestic purposes for this moral right to apply. Clearly, a newspaper wishing to publish wedding photographs which it obtains from the photographer at the wedding without the consent of the commissioner, which are likely to be the bride or groom's family, could be liable for an infringement of moral rights.

This is so, despite the fact that the position in copyright law as to ownership is clear. Naturally, no infringement occurs where the person entitled to the right has consented or waived their right.

False attribution

A person has a right not to have a literary, dramatic, musical, or artistic work falsely attributed to them as author and not to have a film falsely attributed to him as director. This right is infringed where copies of a work containing such a false attribution are issued to the public. The rights may be further infringed where such a falsely attributed work is performed in public or broadcast where a person knows or has reason to believe that the attribution is false.

It is also an infringement where, in the course of business, a person deals with or possesses copies of the work knowing or having reason to believe that there is such an attribution and that it is false. This remedy is clearly useful where an author's name is attached to a work, which is not theirs. Such an attribution may also amount to a passing off.

A false attribution right exists until 20 years after the person's death. It is possible that when a work is adapted, perhaps in translation from a novel to a screen play, where the work changes so fundamentally, that attaching the author's name to the final film amounts to derogatory treatment as well as false attribution. Generally, the remedy for breach of moral rights is damages (usually money) and an injunction (or, in Scotland, interdict) (a court order forbidding something). Defences to such an action will include consent or waiver of the right.

There is no infringement of moral rights if consent is given. Any waiver of rights should be in writing signed by the person giving up the right. The waiver may be specific or general and may relate to existing or future works.

Derogatory treatment

The author of a copyright, literary, dramatic, musical or artistic work and the director of a film have the right not to have their work subjected to derogatory treatment. The treatment of a work will be derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director. The right exists to prevent injury to the owner and protect the reputation of an artist.

Even if the author of a copyright work has assigned (legally transferred) or otherwise dealt with the rights in the work, this does not give the new owner of copyright a free rein to deal with the work in any manner they think fit.

Most commercial agreements that deal with the copyright in a work also contain waivers of the moral right to object to derogatory treatment of the work. There are certain exceptions and these are contained in Sections 81 and 82 of the 1988 Act. For example, this right does not apply to computer programs or computer generated works or to works made for the purpose of reporting current events or to publication of a work in a newspaper, magazine, periodical or other reference work where the work has been made for such a purpose or was used with the author's consent.

The right does not apply where work has been altered to avoid committing an offence or to comply with a duty imposed under an Act of Parliament or in the case of the BBC, avoiding the inclusion in a programme broadcast of anything which might offend against good taste and decency or which is likely to encourage or incite crime or lead to disorder or be offensive to public feeling. In such a case a disclaimer should be included explaining that the author's or director's work has been altered in such a way.

There are no exceptions for fair dealing and accordingly, despite the fact that a defence of fair dealing may be available in an action for infringement of copyright, an author or director may still have a cause of action under this particular section for breach of moral rights.