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2. Moral Rights and How They Are Protected
3. Works Affected By Moral Rights
4. Who Is Covered
5. Assertion and Acknowledgement
6. Exemptions and Waivers
7. Infringement and Enforcement
8. Further Reference
The authors and directors of many copyright works have moral rights separate from copyright.
Performers also have moral rights in their performance.
Moral rights are retained by the authors, directors or performers even in situations where copyright or performance rights are transferred to another party.
Institutions will need to give consideration to moral, as well as other, rights before embedding such works within OERs.
The purpose of this Moral Rights and OERs Overview paper is to guide publishers of open educational resources (OERs) on the meaning of moral rights, when and how these impact on the creation of OERs and measures which may be taken in order to avoid infringement of moral rights.
2. Moral Rights and How They are Protected
What are moral rights in relation to copyright?
Moral rights are enshrined within Chapter IV of the Copyright, Designs and Patents Act 1988 (CDPA). Moral rights are specific rights that the author of an original literary, dramatic, musical or artistic work, and the director of a film, enjoys in his or her creation. Moral rights guarantee a personal connection between an author and the work. Moral rights include:
(a) the right to be identified as author or director of a work when the work is commercially published or otherwise issued to the public (paternity right)
(b) the right to object to derogatory treatment of a work (integrity right)
(c) the right to object to false attribution of authorship or directorship
(d) the right to privacy of certain photographs and films (privacy right)
Performers also have moral rights (provided for by ss.205C – 205N CDPA) which include:
• the right to be identified as the performer and
• the right to object to derogatory treatment of their performance.
In relation to moral rights, what is derogatory treatment of a work?
Under the terms of s.80 of the CDPA, the author has the right to object to ‘derogatory treatment.’
‘Treatment’ means an addition to, deletion from, alteration to or adaptation of the work. Translation of a literary or dramatic work does not constitute a treatment nor does an arrangement or transcription of a musical work involving no more than a change of key or register (s.80(a) CDPA). In the case of Confetti Records Ltd v Warner Music UK Ltd  the addition of a rap line to a music track was deemed to be treatment of the work. Further, scaling down of the size of a cartoon also constituted treatment. (Tidy v Trustees of the Natural History Museum ).
For treatment to be derogatory s.80(2)(b) CDPA states that, ‘the treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director’.
The courts have interpreted s.80 to mean that the mere fact of distortion or mutilation gives no rise to a claim unless it prejudices the author’s honour or reputation (Confetti Records Ltd v Warner Music UK Ltd). In the Tidy case mentioned above, the reduction in size of a number of paintings of cartoon dinosaurs for inclusion in a catalogue was not derogatory treatment.
To constitute derogatory treatment it is not sufficient that the author is aggrieved by the treatment of his work (Pasterfield v Denham ). It will normally be necessary to provide evidence that members of the public do, or would be likely to think less of the author or director because of the treatment.
In Morrison Leahy Music Limited v Lightbond Ltd , on granting an injunction, it was considered that it was arguable that the use of samples from an original work by George Michael on the album Bad Boys Megamix amounted to derogatory treatment on the basis that the sampling had completely altered the character of the original compositions.
It is worth noting that if a work is subject to a No Derivatives (ND) CC licence then the right to object to derogatory treatment will not be relevant. An author or director will be able to challenge the creation of an adaptation or derivative work as being contrary to the licence terms irrespective of whether or not treatment can be shown to be derogatory.
Your college has obtained an article licensed under an open source licence. The college wants to edit the article and include the edited document in an OER. Is this a breach of the moral rights of the author?
Where the terms of the licence permit the adaptation of copyright works editing the article should not infringe the rights of the copyright holder. A licence which permits adaptation of works may specify that the college must not distort, mutilate, modify or take other derogatory action in relation to the work which would be prejudicial to the original author's honour or reputation. The Creative Commons CC BY licence is an example of a licence containing this provision. Provided that the college in editing the document complies with this term in the licence it is unlikely that the author would have grounds for claiming that the edits constitute derogatory treatment of the work actionable under s.80 CDPA.
To avoid infringing the author’s right to paternity the original author should be acknowledged. Reasonable steps should also be taken to identify modifications to the original document.
Your university wants to include images of book covers in its OER. Do you need to consider moral rights?
Book covers are likely to be treated as ‘artistic works’ and as such they are protected under copyright law. Therefore, you should obtain permission from the copyright owner(s) to copy the image and place it within the OER to avoid potential infringement of copyright. Where a book cover was licensed for the institution to include in the OER then there is also a risk of infringement of authors' moral rights to be identified as the author of the work and to object to derogatory treatment of the work which amounts to a distortion or mutilation or is otherwise prejudicial to the honour or reputation of the author. These would need to be considered and, unless the licence makes clear that the author has waived his/her moral rights, then the author would need to be identified as author of the work and permission obtained from the author if there is any risk that using the book cover in an OER would be considered prejudicial to his/her honour or reputation.
Where the institution can satisfy the conditions set out under s.30 of the CDPA referring to the inclusion of a work for the express purpose of criticism and review etc. then, in the absence of a licence the image could be included without infringement of copyright. Section 30, however, does not permit the institution to ignore moral rights as the provision expressly requires sufficient acknowledgment of the author in addition to requiring that the use of the work be truly connected with review and criticism and not purely for illustrative or enhancement purposes, and the use must be fair (i.e. it must not impinge upon the copyright owner’s rights of exploitation, or go beyond what is needed for the review/criticism).
What constitutes false attribution?
Section 84(1) CDPA provides protection against false attribution of authorship or directorship. ‘Attribution’ means a statement, express or implied, as to who is the author or director of the work.
The following scenarios can give rise to a claim of false attribution of authorship:
• Where words are added to the author’s work and the whole work attributed to him. (Noah v Shuba )
• Where a newspaper column parodying an MP’s diaries purports to be by the MP himself. (Clark v Associated Newspapers Ltd. )
• Where the author of a second edition of a book promotes the book with reference to the first edition, implying that the two works are by the same author. (Harrison v Harrison )
• Where a literary, dramatic or musical work is falsely represented as being an adaptation of a work of a person, for example where a play is misrepresented, by its title, to be based upon a well known book. (s.84(8)(a))
• Where a copy of an artistic work is falsely represented as being a copy made by the author of the artistic work.(s.84(8)(b))
To avoid a claim for false attribution the creator of an OER should ensure that any attribution of the work is accurate and, where a work is licensed under a CC licence permitting derivative works should take reasonable steps to clearly label changes from the original.
Your college has obtained permission from the copyright holders to include an article in an OER. The institution wants to add to the article links to additional materials on the same subject matter. Is this a breach of the moral rights of the author of the article?
If links are added in such a way that it is unclear that these are modifications to the original text and the impression is given that they are the work of the original author then the author may have a claim for false attribution. Where the college licensed the article under a CC licence, allowing the creation of derivative works (e.g. CC BY 3.0) then compliance with the requirement in the licence to take reasonable steps to clearly label, demarcate or otherwise identify that changes were made to the original work would most likely guard against a claim of false attribution.
What is the privacy right in relation to photographs and films?
Unless otherwise agreed the owner of copyright in a photograph is the photographer, not the person who commissioned the taking of the photograph. Therefore the photographer can sell copies of the photograph or permit others to reproduce it even if the individual commissioning the photograph does not want the photograph to be seen publicly.
S.85 CDPA establishes the right of a person who has commissioned the making of a film or taking of a photograph for private and domestic purposes, where copyright subsists in the resulting work, to prevent copies of the work being issued to the public, the work being exhibited or shown in public or communicated to the public without his/her permission.
A photographer has supplied photographs to the college with a licence which permits the college to include the photographs in a social sciences OER. Some of the photographs are wedding photographs. Does the college need to consider any right to privacy of the individuals who commissioned the photographs?
The purpose for which wedding photographs are normally commissioned is the recording of events for family and friends and is both private and domestic. The individual commissioning wedding photographs will therefore have a right of privacy in relation to the photographs and be able to control the exhibiting of the photographs in public and the issuing of copies to the public. In order to ensure that the college does not infringe the right to privacy it would be advisable to obtain permission from the party commissioning the photographs before including them in an OER. Alternatively, the college may request an undertaking from the photographer in the licence that the party commissioning the photographs have waived their moral right to privacy.
3. Works Affected By Moral Rights
Paternity, integrity and privacy rights only exist in relation to copyright works.
Moral rights apply to literary, dramatic, musical and artistic works and films.
The right to privacy as described in s.85 CDPA and above exists in relation to photographs and films commissioned for private and domestic purposes.
There are a number of situations described in ss.79, 81 and 205E of the CDPA within which moral rights do not apply including:
- where the work is a computer program
- the design of a typeface
- computer-generated works
- where ownership of a work originally vested in an author's employer
- work made for the purpose of reporting current events
- where the material is being used in newspapers, magazines or similar periodicals
- reference works such as encyclopaedias or dictionaries
- Crown copyright or parliamentary copyright works, or works in which copyright originally vested in an international organisation, except where the author or director has been identified on published copies
The right does not extend to the performance of a musical work, or of a literary work consisting of words intended to be sung or spoken with music, in public (s.77 (3) CDPA).
Moral rights of paternity, integrity and privacy last for as long as copyright lasts in the work. In the case of literary, dramatic and artistic works this usually means 70 years from the end of the year in which the author dies.
The right to object to false attribution subsists for 20 years following death of the author or director.
A performer’s moral rights in a performance subsist for as long as the performer’s economic rights: 50 years from the end of the year in which the performance takes place or, if during that period a recording of the performance is released, 50 years from the end of the year in which it is released.
4. Who is Covered?
The person who creates the work (s.9 CDPA). The paternity and integrity rights are “author’s rights”.
The right to be identified as the author of a copyright work and the right to object to any derogatory treatment of the work, ss.77 and 80 CDPA, will not apply to materials created by a member of university staff in the course of employment. Employees cannot object to subsequent treatment of those works. However, moral rights will apply to an employee’s performance where they choose to assert such rights. Section 205C and 205F CDPA confer a right on a performer giving a performance to be identified as such and a right to object to derogatory treatment of their performance. An assertion is an indication that an individual wishes to exercise that right and is generally written and signed.
In order to avoid the potential infringement of moral rights in any copyright work or performance a university would be advised to consider requiring all relevant parties to sign a waiver of their moral rights, in writing, prior to creating the OER.
A lecture is delivered by an employee of the college and it is recorded for inclusion in an OER. Does the employee have any moral rights?
The institution will be aware that it owns the copyright in any script or materials created by their employee in the course of their employment and that for employees moral rights do not apply to such works. However, the college will have to consider moral rights which apply to the employee’s performance. The college should seek consent from the performer to the recording of the lecture and waiver of their moral rights as part of a standard model release form prior to a recording being carried out. In this way the college has certainty that the recording can subsequently be made available as part of an OER without any potential infringement of moral rights.
A student will own copyright in copyright works they have created unless there is an agreement to the contrary. In circumstances where a student has assigned copyright to the college or university or to a commercial partner they will retain moral rights unless they have been waived.
Your university wants to digitise a thesis written by a PhD student, a copy of which is currently held in the library and to make the material available as part of an OER. Are there any moral rights which need to be considered?
The PhD student will usually own copyright in their thesis. This means that the university will require permission from the student to digitise the thesis and make it available as part of an OER. This permission would normally be obtained by the student granting the university a licence to digitise the thesis. The PhD student will have moral rights to be identified as the author of the thesis and to object to derogatory treatment of the thesis. To ensure that the student’s moral rights are respected the university should acknowledge the student as the author. If the student has assigned copyright in the thesis to the university or to a commercial partner, the student’s moral rights will still be relevant regardless of the transfer of copyright. The student will still have a moral right to be identified as author (paternity) where they have asserted this right in the written instrument assigning copyright to the institution. The right to object to derogatory treatment does not require to be asserted, therefore where copyright has been assigned the student will have the right to object to derogatory treatment if, for example, the institution chooses to digitise extracts only of the thesis and this is considered prejudicial to the honour or reputation of the student.
Section 88 CDPA - the right to be identified as author or director in the case of a work of joint authorship is a right of each joint author and must be asserted by each joint author in relation to himself.
The right to object to derogatory treatment of a work is, in the case of a work of joint authorship, a right of each joint author and his right is satisfied if he consents to the treatment in question.
A waiver under s.87 of those rights by one joint author does not affect the rights of the other joint authors.
The right conferred by s.84 CDPA (false attribution) is infringed, in the circumstances mentioned in that section -
(a) by any false statement as to the authorship of a work of joint authorship, and
(b) by the false attribution of joint authorship in relation to a work of sole authorship;
and such a false attribution infringes the right of every person to whom authorship of any description is, whether rightly or wrongly, attributed.
The provisions also apply to a film which is or is alleged to be jointly directed.
The right to privacy of certain photographs and films in case of a joint commission is a right of each person who commissioned the work.
Moral rights may not be assigned, however, they may be transferred on death (s.95 CDPA). When an author or director dies moral rights transfer to whoever is nominated in the author or director’s will. If there is no direction in a will, the rights transfer to the person receiving copyright. The right of a person not to have a work falsely attributed to him/her is only actionable by an author’s personal representatives.
5. Assertion and Acknowledgement
The right to be identified as the author of a work (the paternity right) cannot be exercised unless it has been asserted (s.78 CDPA). For an author or director to have asserted his or her moral right to be identified as author, they must have indicated their wish to exercise the right by giving notice to this effect (which generally has to be in writing and signed) to those seeking to use or exploit the work or film. The right to be identified as the author can be asserted on an assignment of copyright in the work or by another instrument in writing signed by the author or director which comes to the attention of the person sought to be made liable.
No particular form of words is required to assert the moral right of paternity. A typical example would be: “[the author] hereby asserts his right to be identified as the author of [the work].”
In relation to the public exhibition of an artistic work the moral right of paternity may be exercised by ensuring that when the author or first owner parts with possession of the original, or a copy made under his control, the author is identified on the original or copy or a frame or mount to which it is attached. Alternatively, the author can include in a licence by which he authorises the making of copies of the work a statement that the author asserts his rights to be identified in the event of public exhibition of a copy made in pursuance of the licence. (s.78(3) CDPA)
A performer’s moral right to be identified as the performer cannot be exercised unless it has been asserted by virtue of s.205D CDPA. Such rights are asserted in a similar manner as an author or director’s moral rights in their copyright work.
The moral right of integrity does not have to be asserted.
Certain moral rights subsist in favour of the author of a work, whether or not he or she is the copyright owner.
Moral rights are personal not property rights. Unlike copyright they may not be assigned or sold, therefore an author may assign copyright to a publisher, for example, but will retain moral rights in their work.
Identification must be in a form likely to bring the author’s identity to the notice of those receiving the disseminated work, and must be reasonably clear and prominent. (s.77(7) CDPA)
Where an author or director specifies a particular form of identification that form should be used, otherwise any reasonable form of identification may be used. (s.77(8) CDPA)
The author must be identified as the author of the work and not simply named.
The Creative Commons (CC) suite of licences requires that a licensed work is attributed to its creator unless the creator has waived that right. Attributing a work in the manner specified in the CC licence is intended to respect the moral right of paternity. The Creative Commons website contains guidance on how to attribute a CC licensed work at http://wiki.creativecommons.org/marking/users
It is conceivable that a work a college or university wants to include in an OER is licensed to the institution under a CC licence requiring the work to be attributed in the manner specified by the author or licensor, moral rights require the author to be acknowledged and the contract under which the institution purchased the work requires the college to acknowledge the publisher’s rights as owners of the copyright in the work.
In such a situation, to ensure compliance with its obligations, an institution would be wise to:
- acknowledge the parties specified by the author or licensor in the CC licence. Where the licensor is the publisher it is likely that the licensor will require that ownership of the copyright in the work be attributed to themselves.
- acknowledge the publisher as owning copyright in the work thus complying with the contract;
- acknowledge the author as the author of the work thus avoiding infringement of the author’s moral rights - unless the author has specified another party for attribution under the CC licence, has waived their moral rights in the contract, or in a document assigning copyright to the publisher which has been brought to the institution’s attention.
Fair dealing for specific purposes described under the CDPA for example, for genuine criticism and review, s.30, requires that the author of a copyright work be acknowledged.
The licence or contract under which your college or university is permitted to use the copyright work may require attribution.
Aside from legal issues it is good practice for institutions to identify the author of copyright works which are included in their OERs. Attribution can add value to your OER by providing a source for the user should they wish to investigate or read up on the subject matter further or check the validity of statements for themselves. Attribution gives credence to the OER material by making it possible to establish the authoritativeness of sources. Moreover, this practice helps to identify primary sources and supports the work with comments from experts.
Furthermore, often the public has an expectation that a work by a particular author will have certain qualities they associate with the author’s work. Identifying the author assists in bringing the author’s name to the attention of the public and respect for the moral right of integrity can help assure the user that the work it associates with a particular author is the author’s genuine product.
6. Exemptions and Waivers
There are a number of permitted acts described in s.79(4) CDPA which by virtue of the fact they do not constitute an infringement of copyright will also not be an infringement of moral rights. These include fair dealing for the purposes of reporting current events by means of a sound recording, film or broadcast and things done for the purposes of an examination.
Section 205E(5) CDPA list a number of permitted acts which do not infringe a performer’s moral rights by virtue of the fact that they would not infringe a performer’s economic rights in their performance including things done for the purpose of examination and news reporting.
Not every permitted act in relation to copyright will be exempt from infringing moral rights since the essence of some permitted acts is that in order to constitute fair dealing sufficient acknowledgement and therefore respect for the moral right of paternity is required.
Any act carried out with the consent of the author will not constitute breach of an author’s moral rights.
There are rights granted to broadcasters to alter works where, for example, laws of public decency might be contravened or good taste might be offended, or works might be seen to be incitements to crime, violence or terrorism. (s.81(6)).
Moral rights, being personal to the author, can never be transferred. They remain with the author even if he or she assigns the copyright to the college or university.
Yes, the author may waive their moral rights (s.87 (2) CDPA), or consent to an act which otherwise would be an infringement (s.87 (1) CDPA).
By virtue of s.87(2) CDPA it is possible for moral rights to be given up or waived by an instrument in writing signed by the person giving up the right. However, a waiver by one joint author does not affect the rights of the other joint authors (s.88 (3)). Under the terms of s.87 (3) a waiver –
(a) may relate to a specific work, to works of a specified description or to works generally, and may relate to existing or future works, and
(b) may be conditional or unconditional and may be expressed to be subject to revocation;
and if made in favour of the owner or prospective owner of the copyright in the work or works to which it relates, it shall be presumed to extend to his licensees and successors in title unless a contrary intention is expressed. The provisions for formal waivers in writing do not exclude the operation of the general law of contract in relation to an informal waiver of any moral rights.
An instrument waiving moral rights may specify that a waiver is revocable or irrevocable. A waiver may be conditional or unconditional by virtue of s.87(3)(b) CDPA. However it is not clear, in law, whether a waiver that gives no indication of the revocability or otherwise is indeed to be considered revocable in the absence of an intention to the contrary.
The agreement to license a work under a CC0 licence is likely to be taken to be a waiver of the paternity right.
With regards to students, a student/institution contract is likely to be subject to the terms of the Unfair Contract Terms in Consumer Contracts Regulations 1999 which make unfair contract terms void in non-negotiated contracts. It is therefore conceivable that a waiver of moral rights could be considered unfair where an institution has a policy which includes a blanket waiver of moral rights by students, as such a policy will not have been individually negotiated. This could cause a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the student. Further, it is unlikely to be considered fair for a student to be compelled to waive moral rights as a condition of attending an institution or for a student to be compelled to waive moral rights in their performances as a condition of participating in a recording where participation is a requirement of their course.
A waiver of moral rights will be less likely to be considered unfair where it relates to a specific work, or works of a specified nature, or in the case of a performance it relates to a specific performance or performances of a specified description. Ensuring that students are informed as to the rights they are being asked to waive, the institution provides a justification for why it requires moral rights to be waived and that students have a choice will decrease the risk of a waiver being considered unfair.
With respect to staff and third parties, The Unfair Terms in Consumer Contracts Regulations 1999 will not apply. However, under the general law of contract it is possible that the enforceability of a waiver could be challenged on the basis of duress if they are compelled to sign a waiver.
Your college or university wants to include videos of an end of year performance by drama students recorded by staff in an OER. Do you need to consider moral rights?
Performers (in this case your students) have rights in their performance and any recording, film or broadcast of that performance. A performer’s rights are infringed where a recording of a substantial part of a performance is made without consent (s.182 CDPA), or where a copy of that recording is made without consent (s.182A), or where copies of that performance are issued to the public without consent (s.182B). The students will also have moral rights to be identified as the performer and to object to derogatory treatment of their performance, Part II ss. 205C-205N - Performers' Moral Rights. In order to include the videos in an OER your institution would need to ask students to sign an informed consent form in relation to their performance. In addition to an assignment or license of performance rights for use in an OER, the consent form will need to include a waiver of the student’s moral rights.
The 2010 paper on our website Recording Lectures: Legal Considerations, provides further details on the law in relation to recording students.
8. Infringement and Enforcement
What are the consequences for an institution that breaches an author’s moral rights?
The remedies for breach of moral rights outlined in s.103 and s.205N CDPA relate to damages and injunction. A successful application for injunction by an author would make the OER unusable, would mean that anyone using the OER would have to take down material, and might lead to potential damage to reputation.
In the case of derogatory treatment of a copyright work or performance an institution may avoid an injunction if they include a disclaimer dissociating the author or director from the treatment of the work or the performer from the broadcast or sound recording of the performance.
Where an action for infringement of the right to be identified as the author or performer arises, a court will take into account any delay in asserting that right when considering remedies for infringement (s.78(5) and s.205D(4)). So, where a dispute arises, any awarded damages are likely to be mitigated where a lecturer or other ‘performer’ has chosen not to assert this right as soon as possible.
9. Further Reference
Paul Pedley, Digital Copyright; Second Edition, Facet Publishing 2007
Kevin Garnett, Gillian Davies, Gwwilym Harbottle, Copinger And Skone James on Copyright; Fifteenth Edition, London Sweet & Maxwell 2005
Lionel de Souza and Charlotte Waelde, Moral Rights and the Internet: Squaring the Circle 2002 3 IPQ pp265-288 http://hdl.handle.net/1842/2306
Charles Oppenheim, Moral Rights and the Electronic Library, 1996 http://www.ariadne.ac.uk/issue4/copyright/
Moral Rights: no grey areas http://ipkitten.blogspot.com/2010/03/moral-rights-no-grey-areas.html
Copy-Right Consultant’s Ltd Copyright Toolkit – exercise on moral rights http://copyrighttoolkit.com/mrintro.htm
David Vaver, Moral Rights Yesterday, Today and Tomorrow; 7 Int’l J.L. & Info. Tech. 270 1999
Copyright, Designs and Patents Act 1988 (CDPA) http://www.legislation.gov.uk/ukpga/1988/48/contents
Recording Lectures: Legal Considerations, JISC Legal 2010 http://www.jisclegal.ac.uk/Portals/12/Documents/PDFs/Recording%20Lectures.pdf
Confetti Records Ltd v Warner Music Uk Ltd (t.a. East West Records)  EWHC 1274 (Ch)
Tidy v Trustees of the Natural History Museum  39 IPR 501Morrison
Leahy Music Limited v Lightbond Limited,  EMLR 144
Pasterfield v Denham  F.S.R. 168