what is copyright?
copyright protects original works created by authors or creators as soon as the work is recorded in a tangible medium. this applies to a variety of works including literary works (eg books and song lyrics), artistic works (eg paintings and photographs) and musical compositions.
copyright protection grants the copyright owners certain exclusive rights in relation to their work. these rights are either economic rights or moral rights. for more information on copyright and the associated economic rights, read copyright.
what works do moral rights apply to?
moral rights only apply to the following types of creative works:
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literary works
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dramatic works
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musical and artistic works
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films
while performances (ie live performances given by one or more individuals, like dance, mime and musical performances) are not covered by copyright, performers are also entitled to moral rights as part of their performers’ rights.
what are moral rights?
the law recognises that copyrighted works may mean more to their creator than their economic value. anyone who creates creative works invests a lot of time and effort into them - both emotionally and intellectually.
moral rights exist to grant copyright owners more than just the right to use (or ‘exploit’) copyrighted works. in other words, moral rights exist because certain copyrighted works need more protection than standard forms of property and, as such, they protect the non-economic interests in the work.
the copyright, designs and patents act 1988 sets out the following four moral rights:
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the right to attribution
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the right to object to derogatory treatment of a work
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the right to object to false attribution
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the right to privacy of certain photographs and films
the right to attribution
the right to attribution (sometimes also known as the ‘paternity right’) is the right of the creator of a work to be recognised as the work’s creator (eg author or director).
before the right to attribution comes into effect it must be asserted. this means that the creator must take positive action to let other people know they wish to exercise their right to attribution. this is often done by including a clause in any licensing agreements saying that the creator is asserting their right to be identified as the work’s creator or including the creator’s name on the original work or frame.
the right to attribution only needs to be asserted once and others are bound by the assertion regardless of whether it is visible or they had notice of it. for example, consider a photo of a painting where the right to attribution has been asserted on the back (ie by recording the name of the creator). anyone dealing with the photo will be bound by the assertion despite it not being visible on the photo.
once the right to attribution has been asserted, the creator of the work must be identified as such whenever the work is:
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published commercially
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exhibited in public
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otherwise communicated to the public (eg by distributing copies of the work or photos or films of the work)
the right to object to derogatory treatment of a work
this right, also known as the ‘integrity right’, allows the creator to object to any derogatory treatment of their work.
‘treatment’ includes any additions, deletions, alterations or adaptations that interfere with the structure or composition of the work. such treatment must also be derogatory. this means that the treatment must amount to mutilation or distortion of the work or it otherwise negatively impacts the reputation or honour of the creator.
determining whether someone’s treatment of a work is derogatory is a subjective assessment. the creator may need to evidence the extent of their reputation and how it has been harmed. such evidence could include reviews, quotes or expert opinions.
a violation of this right takes place when someone who has treated your work in a derogatory way subsequently publishes it commercially or otherwise communicates it to the public.
the right to object to false attribution
this is the right not to be identified (in an express or implied statement) as the creator of a work you did not make. for example, if someone has made a forgery of your work, if someone has made alterations to your work, or if you are named as the author of a book you didn’t write.
this right is only violated when the work with the false attribution is publicly exhibited or otherwise communicated to the public (eg by issuing copies showing an image of the work to the public).
the right to privacy of certain photographs and films
this right applies to anyone who has commissioned a photo or film for private and domestic purposes. it enables you to prevent the work from being exhibited or made available to the public. for example, you can rely on this right to prevent a wedding photographer from publishing your wedding photos on their website without your permission.
exceptions to moral rights
the moral rights of a creator will not be infringed if an exception applies.
the right to attribution and the right to object to derogatory treatment will not be infringed by a variety of acts, including but not limited to:
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any acts done by or with the authority of the creator where the work was made in the course of employment
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any acts for the reporting of current events by means of a sound recording, film or broadcast
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if the work is used in a periodical publication (eg a newspaper)
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an incidental inclusion of the work in an artistic work, film or broadcast (this is usually the case if the inclusion is unplanned)
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if the work is used in a collective work of reference (eg encyclopaedias, dictionaries or yearbooks)
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any acts for the purposes of parliamentary and judicial proceedings
the right to privacy of certain photographs and films will not be infringed by a variety of acts, including but not limited to:
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an incidental inclusion of the work in an artistic work, film or broadcast
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any acts for the purposes of parliamentary and judicial proceedings
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any acts done in relation to the work where it is not possible to find out the identity of the creator and it is reasonable to assume that the copyright protection has come to an end
there are no exceptions to the right of false attribution.
how long do moral rights last?
this depends on the moral right in question.
the right to attribution, the right to object to derogatory treatment and the right to privacy in certain photos and films last as long as the work is protected by copyright. for more information on how long copyright lasts, read copyright.
the right to object to false attribution lasts for 20 years after a person’s death.
can moral rights be transferred?
unlike the economic rights associated with copyright, moral rights cannot be sold or transferred (or ‘assigned’). this means that even after the creator of a copyrighted work has sold the copyright to that work, they still have the moral rights to that work.
however, the moral rights holder can waive these rights. this means that if the creator of a work consents, it is not a breach of the moral rights to not comply with them. generally, moral rights are waived in writing using a waiver signed by the creator of the work. if you require a moral rights waiver, ask a lawyer.
