The individual creators of works automatically have moral rights in their work, which can’t be given away by a license, or sold. Moral rights are distinct from copyright, and the creator holds the moral rights even though someone else may now own the economic rights as the copyright owner.
It is important that you understand about these rights if any of your contracts ever provide for you to transfer or receive intellectual property rights.
As a quick summary, the moral rights of the creator are:
- the right to be attributed as the creator of the work,
- the right to not have their work falsely attributed as being the work of someone else,
- the right to not have their work treated in a derogatory way, ie in a way that is harmful to the creator’s reputation.
Unless the creator consents to these acts there’s a potential risk of infringement, so it’s not uncommon for an agreement for transfer of the copyright to also include consent to infringements of those rights by the creator. The Copyright Act allows for certain creators to give a broad consent to infringement of moral rights. For example an employee can give broad consent for all material created in the course of employment to their employer, and a creator whose work is a film can also give a broad consent. But not all creators can give wide-ranging consents.
So if you ever require intellectual property to pass over to you as part of goods or services provided by someone else, you must carefully consider whether it is also appropriate to have moral rights clauses in the contract with that party (to ensure that they take responsibility for getting the relevant moral rights consents), and in particular clauses that provide for consents to infringements of any relevant moral rights. Otherwise great care would have to be taken each time that the work is used to minimise the risk of potentially infringing the moral rights, such as ensuring that the work is correctly attributed to the creator, that you don’t attribute the work to someone else, that anything that is done with the work doesn’t potentially harm the creator’s reputation, and anything else that might risk the creator coming back to bite you with an assertion of their moral rights as the creator.
Contact us on [email protected] if you have a question about moral rights, if you’d like an agreement reviewed, or if you’d like a confidential obligation-free discussion. We’re more than happy to help.
