Moral rights

Contributed by Annette Rubinstein and Fitzroy Legal Service and current to 1 September 2005

These are not strictly speaking copyright, but are granted by Part IX of the Copyright Act. They are intended to protect the non-economic aspect of a creator’s interest in his or her work, including the creator’s reputation and sense of continuing connection with the work. Moral rights belong to the author of a work, to the director, producer and screenwriter of a film, and to performers of live or recorded musical performances, regardless of who owns the copyright.

Moral rights are:

• the right to be identified as the author of the work or film in a clear and reasonably prominent form;
• the right not to have the authorship of the work or film falsely attributed to someone else; and
• the right not to have the work or film subjected to derogatory treatment. This means the distortion, destruction or mutilation of the work, or the doing of anything in relation to it which is prejudicial to the author’s honour or reputation.

Without moral rights, a person who owns a painting would have the right to destroy it or alter it. Similarly, even if an author has assigned copyright in a novel to a publisher, moral rights may prevent the publication of the novel in an abridged edition or in a pornographic cover.

Moral rights in films last for the lifetime of the person entitled to exercise the rights. Moral rights in works last for the duration of copyright in the work.

The Act sets out numerous circumstances in which failure to comply with a moral right does not constitute infringement of it. These include when the failure is reasonable, and when the author has agreed to it. For example, it would often be reasonable not to identify the employee who is the author of a business document. It will often be very difficult to decide what is reasonable in the context of commercial dealing with a work which has a serious artistic purpose. For this reason, writers, artists and film makers may be asked to give consent to a wide class of acts which might otherwise infringe their moral rights.

The remedies for infringement of moral rights include an order to cease the infringement, payment of damages, and the making of a public apology. Infringement of moral rights is not a criminal offence.