Section 7 of the Copyright and Neighbouring Rights Act 2000 protects the author’s connection with the work, separately from its commercial value.
Section 7(1) — the four moral rights
(a) to have his name indicated prominently on the copies and in connection with any public use of his work;
(b) not to have his name indicated on the copies and in connection with any public use of his work;
(c) the right to use a pseudonym;
(d) to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his work which would be prejudicial to his honour or reputation.
Paragraphs (a), (b) and (c) are three faces of the same right: the author decides how they are identified — by name, not at all, or under a pseudonym. Note the word prominently in paragraph (a). A credit buried in fine print may not satisfy it.
Paragraph (d) is the right of integrity. It has two elements: a distortion, mutilation, other modification, or other derogatory action; and prejudice to the author’s honour or reputation. Mere alteration is not enough — the change must be capable of damaging how the author is regarded.
“Other derogatory action in relation to the work” is wider than modification. Displaying a work in a demeaning context, or associating it with a cause the author opposes, can engage the right without altering a line of it.
Section 7(2) — moral rights survive the sale of copyright
Subsection (1) applies whether or not a person no longer owns the rights of a copyright work.
An assignment under section 20 transfers the economic rights. It does not transfer the moral rights, which remain with the author.
So a company that commissions and buys the copyright in a logo, a photograph, a manual or a song still needs to consider whether it may alter the work, and whether it must credit the author. An employer who owns the economic rights in an employee’s work under section 18(4) is in the same position.
The answer in practice is a properly drawn waiver under subsections (4) and (5).
Section 7(3) — transmission
The rights may be transmissible during the life of the author, but the right to exercise any of those rights may be transmissible by testamentary disposition or by operation of law following the death of the author.
So on death, the right to exercise the moral rights passes by will or by operation of law. Under subsection (6), the person or entity on whom the moral rights have devolved is entitled to waive them. And under section 17, the moral rights are protected for the same period as the economic rights — generally the life of the author plus 50 years.
An executor or administrator who takes over the exercise of an author’s moral rights holds a real asset in negotiation. A publisher or producer seeking to adapt the work after the author’s death may need both a licence of the economic rights and a waiver of the integrity right.
Sections 7(4) and (5) — waiver
(4) The author may waive any of the rights, provided the waiver is in writing and clearly specifies the right or rights waived and the circumstances in which the waiver applies.
(5) A waiver of the integrity right in paragraph (1)(d) shall specify the nature and extent of the modification or other action in respect of which the right is waived.
Three requirements, and each is a trap for a badly drafted contract:
In writing. An oral waiver is ineffective.
Specifying the rights waived. A clause saying “the author waives all moral rights” does not clearly specify which rights, and does not on its face satisfy subsection (4).
Specifying the circumstances. The waiver must say when it applies — to which uses, in which media, for which purposes.
And for the integrity right, subsection (5) adds a fourth: the waiver must specify the nature and extent of the modification permitted. A commissioning agreement should therefore say, for example, that the author waives the right to object to cropping, resizing, colour adjustment and incorporation into composite marketing materials — not merely that modification is permitted.
Performers have moral rights as well
Independently of the performer’s economic rights, and notwithstanding the transfer of those rights, a performer has, in respect of live aural performances and performances fixed in phonograms —
the right to claim to be identified as the performer, except where omission is dictated by the manner of the use; and
the right to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation.
Section 7(3) and (4) apply mutatis mutandis — so the same transmission and waiver rules govern a performer’s moral rights.
The performer’s rights cover live aural performances and performances fixed in phonograms — not audiovisual fixations, consistently with section 21(2), under which authorising incorporation in an audiovisual fixation ends the application of the performer’s economic rights.
And the attribution right yields where omission is dictated by the manner of the use — a qualification the author’s right in section 7(1)(a) does not contain.
Enforcing a moral right
A breach of section 7 is an infringement — section 2 defines infringement as any act that violates a right protected under this Act, which includes the moral rights. The full enforcement machinery applies:
- Section 26 — injunctions to prohibit the committing or continuation of the infringement, and impounding of copies and implements.
- Section 27 — damages for the prejudice suffered, and note that section 27(2) requires the Court to take into account the moral prejudice suffered by the owner of the right in fixing the amount.
- Section 28 — the offence, where the infringement is wilful or by gross negligence and for profit-making purposes.
Section 27(2) is worth emphasising for authors. Even where the economic loss from a mis-attributed or mutilated work is small, the Court is directed to weigh the moral prejudice as a distinct component of the award.
Sources
- Copyright and Neighbouring Rights Act 2000 — ss 2, 6, 7, 17, 18, 20, 21, 26–28
Before relying on anything here, read the current text of the Copyright and Neighbouring Rights Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.