Alongside the rights that we normally think about as copyright – the property rights that enable creative people to make money from their works – UK law recognises two so-called “moral rights” that give protection to other interests of creators.
In this article, our copyright solicitors discuss what moral rights are, what types of works moral rights apply to and how you can enforce your moral rights.
Contents:
What are the main types of moral rights?
UK copyright law gives authors rights that are very important for their reputation. First, authors have the right to be identified as the author of their work – “paternity right” – and secondly, they enjoy the right to object to derogatory treatment of their work – “integrity right”.
These two rights are carefully defined in the legislation. Paternity right is the right to be identified as the author of a work when certain things are done to it (basically, when it is exploited commercially), and integrity right is the right to object to any addition to, deletion from or alteration to or adaptation of the work (other than a translation or in the case of a musical work, a change of key) which distorts or mutilates it, or is otherwise prejudicial to the honour or reputation of the author or director.
The biggest drawback to these rights is that the paternity right has to be asserted in writing before the author can do anything with it. For the author of a book, the publishing agreement will be the obvious place to do this. This explains the wording in the colophon of a published edition of a book, which gives factual information including the identity of the copyright owner and the date of publication. It is common to see a statement that “the author has asserted their moral rights”, although it’s only paternity right that needs to be asserted.
What happens if you want to use a pseudonym? The law allows you to stipulate how you wish to be identified, so the author’s agreement with their publisher will cover this point. JK Rowling’s Strike series of novels, published under the pen name Robert Galbraith (at the time a closely-guarded secret), provide an example. In The Cuckoo’s Calling, the first in the series, the copyright notice states that Robert Galbraith Limited is the copyright owner, and that “the moral right of the author has been asserted”, carefully avoiding saying who that author is. By book 7, The Ink Black Heart, the secret was out and the author was identified as JK Rowling, but the moral rights notice remains the same.
An author who wishes to remain anonymous can, of course, still do so. Legally, that amounts to not asserting paternity right.
Do moral rights apply to all types of works?
Copyright protection applies to a wide range of works, but only the authors of certain types of copyright work enjoy the moral rights: literary, dramatic, musical and artistic works, and copyright films (in the latter case, only the director has moral rights). There are also many exceptions to the moral rights.
The right of paternity does not apply where the work is a computer program, a typeface design, or a computer-generated work; nor does it apply to anything done by the creator’s employer if the work were created in the course of the employment. If the act in question is one of several acts permitted under the legislation (including, for example, fair dealing for reporting current events by means of a sound recording, film or broadcast) paternity right cannot be enforced. If the work was created for the purpose of reporting current events (rather than just being used for that purpose) paternity right does not apply at all – a newspaper cannot be required to identify its journalists, though it often will do so voluntarily – and over and above that a work created for publication in a periodical or a work of reference will not be covered.
Integrity right is also subject to exceptions, mostly necessary to make it workable. There are extensive carve-outs for the print and broadcast media, without which journalists could make trouble over sub-editors’ treatment of their work. There are also exceptions connected to changes that might have to be made to avoid committing an offence, to comply with a statutory duty or (in the case of exploitation by the BBC) including something offensive in a broadcast or inciting criminal behaviour. In the case of a work created by an employee in the course of their employment, integrity right cannot be enforced unless the creator was identified as such (otherwise the treatment complained of does not harm the actual author).
Where moral rights are weak or lacking, authors should take legal advice to learn about other possibilities. An action for passing off or malicious falsehood can be an effective way to protect a reputation.
How long do moral rights last?
Moral rights last for the same length of time as other aspects of copyright – the author’s lifetime, plus seventy years. After the author’s death, the rights become enforceable by their personal representatives. If the author’s literary estate is substantial, these matters will probably be dealt with in some detail.
Can moral rights be assigned?
The whole idea of moral rights is to protect something other than the economic rights that authors will often sell to publishers: in essence, the author’s reputation, or the reputation of the work itself. Moral rights treat these matters as a very personal form of property, and it is essential that they cannot be transferred.
That fundamental aspect of moral rights is very much diluted in UK law. Paternity right has to be asserted in writing, and many authors simply don’t know they have to do this, or how to do it, or they just don’t get around to it. The rights can be waived, which to all intents and purposes has the same effect as transferring them.
Can moral rights be waived?
Both paternity right and integrity right can be waived, although this has to be done in writing and signed by the author. (The law also recognises less formal consents, which may be given orally and which are usually more specific than a waiver.) It is very common in publishing agreements for the author to waive their paternity right, but also common for the publisher in the next line of the contract to agree to identify the author, and to set out the details. This has the advantage to the publisher that they cannot be accused of infringing the author’s integrity right if they neglect to identify them, or identify them wrongly.
Waivers of integrity right are also common, because publishers want to be able to make changes to the material submitted to them by the author. It’s unlikely that editorial changes will ever amount to derogatory treatment, but the publisher will want to close off any possibility that the author could use integrity right if they don’t like what the editor has done.
Waivers can be general or specific to certain works or to certain categories of works, and may relate to future works as well as existing ones. Conditions may be attached, and the waiver may be subject to revocation. But always remember that, as far as paternity right is concerned, if you haven’t asserted it correctly there is nothing to waive!
What are the risks of someone waiving their moral rights? If the publishing contract ensures that the essence of the rights will still be respected, but as a contractual rather than a statutory matter, the risks are small but care must be taken to ensure that nothing significant has been given away, something that a review of the contract by a solicitor with experience in publishing agreements will be able to pick up on.
What happens if my moral rights are infringed?
If your moral rights are infringed, you can sue for breach of statutory duty. In the right circumstances, an author should be able to obtain the usual remedies for a breach: damages, if damage can be shown, and an injunction to prevent the breach from recurring (with the option of the court ordering the application of a disclaimer).
Summary
Moral rights have a growing role to play in the modern copyright world, so the most important takeaway must be that authors must assert their paternity right unless there is good reason not to do so. And while you might not wish to sue for copyright infringement of paternity or integrity right, it could form part of a larger claim alongside a copyright infringement, trade mark infringement or passing off claim.
