What exactly are “moral rights”?

04-10-2021


Many commercial agreements contain a reference to “moral rights”, but there is a general lack of understanding of what they are and their potential significance.

Moral rights are associated with, but  are distinct from, copyright and are set out in the Copyright, Designs and Patents Act 1988 (“CDPA”).

In summary, there are three main rights (and a fourth which is relevant to one’s personal life). These are:

Paternity –  the right to be identified as the author (or director) of a copyright work. (An author has to assert this right);

Integrity – the  right to object to derogatory treatment (defined below) of a copyright work;

No False Attribution –  the right not to have a copyright work falsely attributed to you; and

Privacy –  the right to privacy  in respect of certain films and photographs made for private and domestic purposes.

(There are other moral rights relating to performances, but these are less relevant to commercial agreements).

Moral rights apply to a range of literary, dramatic, musical or artistic works and films.  In a commercial context,  examples would include  an architect’s drawings for a building, an illustrator’s creations, a writer’s book or a report written by a professional, such as a surveyor or a planning consultant.

The rights of paternity, integrity and privacy last for the normal term of copyright  (which is the life of the author plus 70 years). The right to  prevent false attribution is limited to 20 years after the death of the author.

Moral rights do not apply in all circumstances or to all types of work. For example,  the rights of paternity and integrity do not apply to computer programs or computer-generated works.

While moral rights are personal rights, they should be considered in the context of commercial agreements and transactions. Moral rights cannot be assigned but they can be waived – and often are. However, there may be good reason why moral rights should not be waived.

For example, a professional who prepares a report on a property may well want  his name to appear as the author of the report, as a means of marketing his expertise to the range of people who may see the report and have similar projects.  On the other hand, that professional  will not want his report subjected to derogatory treatment or  to have another report attributed to him, when he had not written it.

“Derogatory treatment” is defined in the CDPA. “Treatment” is any addition to, deletion from or alteration to or adaptation of a copyright work (other than a translation).  That treatment is “derogatory” if it amounts to a distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author.

Taking the example of a professional’s report, if the person for whom the report was prepared decided to change references to the evidence on which it was based or the conclusions reached, this would be likely to amount to “derogatory treatment” .

The take away point is that references to moral rights in commercial agreements and transactions should be considered carefully and, while waivers may sometimes be appropriate, for the reasons set out above, this may not always be the case.

A breach of moral rights can be pursued through the courts on the basis of a breach of statutory duty. Where appropriate, it may be possible to obtain an injunction, but the more likely remedy is damages for the loss of reputation and goodwill suffered by the author, and possibly also for injury to feelings.

For more information on how Gardner Leader can assist you with your intellectual property, please contact Peter James in our Commercial Team.


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