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Understanding Moral Rights under Copyright Law

By: Christopher Heer, Toba Cooper, Daryna Kutsyna | Last updated: August 14, 2018
In Canada and in many other countries around the world, copyright privileges are bestowed upon the author of an original fixed creative work immediately upon creation with no registration necessary. Registration of a copyright can further affirm and solidify those rights, particularly in cases where litigation becomes necessary. It is common to think that copyright privileges entitle the owner only to a monopoly on financial gains from their works, and in many cases, only these economic rights get used by intellectual property owners.

However, creators are entitled to another set of rights that comes with being the author of an original work: moral rights. The concept of moral rights ensures that the integrity and intent behind the author's creation are preserved to the fullest extent. Further, moral rights are necessary to protect the author's reputation and good name where the works they produce are defamed or altered without their permission.

Defining moral rights

Moral rights are a provision within copyright law intended to codify and protect the author's association with the creative work by preserving the integrity of the work and intent behind the work. Moral rights can be divided into two overarching categories: rights of attribution and association and rights of integrity.

Attribution rights refer to the author's ability to name himself or herself as the author of the work publicly, and to have their name appear in any relevant authorship sections of the work (i.e., credits of a film, signature of the artist on a painting, name of an author on a literary work, etc.). Rights of attribution also entitle the author to remain anonymous, if they so choose.

The right of association, or being able to choose in what contexts and in association with which works or causes the creative work is shown and/or used is also an important author's right in copyright law. An author may be able to claim moral rights infringement and seek a remedy if use of their original work directly threatens an author's good name or reputation (i.e., a painting being showcased in a hunting exhibition that was created by an animal rights advocate who makes works about animal rights).

Integrity rights refer to the author's ability to preserve the intended meaning of the work and protect it from destruction or defamation. This includes the author's ability to protect their work from being altered in any manner without their permission, being referred to or used in a derogatory way, or being destroyed without first offering to give it back to the author. Importantly, the alteration of a work in good faith to preserve its intended meaning or nature is not considered an infringement of moral rights under Canadian copyright law.

Moral rights protection in Canada

Canadian copyright owners are entitled to moral rights protection for the same amount of time as their other copyright privileges: for the duration of the author's lifetime and fifty years after their death (or the death of the last living author, if the work was authored by more than one individual).

Moral rights are statutorily codified in sections 14.1 and 14.2 of the Canadian Copyright Act (sections 17.1 and 17.2 for aural performances and sound recordings), which state that "[t]he author of a work has, subject to section 28.2, the right to the integrity of the work and, in connection with an act mentioned in section 3, the right, where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous."

Section 34.2 of the Copyright Act outlines the penalties for infringement of moral rights. These include remedies by way of injunctions and seeking damages for the infringement.

Further, because Canada is a signatory of the Berne Convention, it is also governed by copyright provisions therein, which can be found in article 6bis. That said, the Berne Convention defers expressly to state authority on the subject of governance of moral rights. This means that if the moral rights of a Canadian author are infringed outside Canada, Canadian Copyright Law will apply and the author will be entitled to enforce their Canadian moral rights in Canada under the Canadian Copyright Act.

Waiving moral rights

The Copyright Act stipulates that moral rights cannot be transferred during the lifetime of the owner (upon death, they are transferred to the same individual who inherits the regular copyright as part of the general intellectual property inheritance process). Further, the Copyright Act specifies that assignment of copyright does not amount to a transfer of moral rights to the new owner of the copyright. This means that even if the ownership of the copyright is transferred, the moral rights remain with the original author.

Moral rights can, however, be waived in whole or in part at the discretion of the author who holds the rights. This waiver will extend to all entities licensed or otherwise permitted to use the copyrighted work. Once moral rights are waived, they cannot be reacquired by the author.

The decision to waive moral rights is one that the author might consider using as a way to monetize the author's rights. For example, an author may demand a higher licensing fee in exchange for a waiver of moral rights that permits the licensee to use the work more freely, and perhaps without attribution. By way of further example, upon deciding to assign the copyright in their work, likewise, an author may be able to negotiate a better deal by also offering to waive moral rights.

Conclusion

Because creative works are so closely tied to the author's identity and thought process, public policy dictates the need to protect authors from more than just financial infringement. Moral rights provide the author with some control over their work irrespective of who owns the work at the time and helps to preserve their integrity, reputation and right to be associated (or not) with their original creations.

If you would like our help with a moral rights issue, please contact us now for a complimentary and confidential initial telephone appointment.

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