Back to Basics: Moral rights under English law
Moral rights are a category of intellectual property rights that protect the personal and reputational interests of creators in their work; they sitting alongside, but are distinct from, copyright.
Under the Copyright, Designs and Patents Act 1988 (CDPA), English law recognises four moral rights, each with its own scope, duration, and conditions for exercise. Whilst the economic rights in a work — the copyright itself — can be assigned and traded freely, moral rights are fundamentally personal in nature and operate on a different basis.
The paternity right
The first, and perhaps most immediately familiar, is the right to be identified as author or director (commonly referred to as the 'paternity right'). The CDPA confers on the author of a literary, dramatic, musical or artistic work, and the director of a film, the right to be identified as such — whether by name or pseudonym — whenever the work is published commercially, broadcast, or performed or exhibited in public.
There is, however, a critical condition which is frequently overlooked: the paternity right must be asserted before it will take effect. Without a valid assertion, made either by written statement signed by the author, or by means of an appropriate statement in a published work, the right may not arise. An assignment of copyright is the natural moment at which the paternity right is typically asserted, and creators should ensure that any assignment agreement includes an express assertion. A failure to assert at the right moment can mean the right is lost in practice, even if the underlying copyright has been properly addressed.
Certain exceptions apply. The paternity right does not apply to computer programs or computer-generated works, nor to employees' works made in the course of employment, nor to works created for the purpose of reporting current events, or to material published in newspapers, magazines, encyclopaedias, and similar collective works.
The integrity right
The second moral right is the right to object to derogatory treatment of the work (the 'integrity right'), also found in the CDPA. This right protects the author of a literary, dramatic, musical or artistic work, and the director of a film, from having their work subjected to 'derogatory treatment', which means any addition to, deletion from, alteration to, or adaptation of the work which amounts to distortion or mutilation of the work, or which is otherwise prejudicial to the honour or reputation of the author or director.
Unlike the paternity right, the integrity right does not need to be asserted. It arises automatically upon the creation of the qualifying work. However, it is subject to exceptions (for example, and notably, it does not apply to works made for the purpose of reporting current events, nor, in certain circumstances, to works published in newspapers or similar publications).
In the film context, the integrity right can have significant practical implications where post-production editing, re-cutting, or the addition of material substantially alters the character of a work. This is one of the principal reasons why producers routinely seek a waiver of moral rights — including the integrity right — from key creative contributors as standard practice.
The right against false attribution and the privacy right
The CDPA also confers the right not to have a literary, dramatic, musical or artistic work falsely attributed to a party as its author, and the right not to have a film falsely attributed to a party as its director. This is a distinct right with a distinct purpose: it protects not against misuse of one's work, but against misuse of one's name and reputation.
In addition, the CDPA confers a more limited right of privacy on individuals who commission photographs or films for private and domestic purposes. Where such a work is commissioned, the commissioner has the right not to have copies of the work issued to the public, exhibited publicly, broadcast, or included in a cable programme service. This right has particular relevance in the context of privately commissioned content and is a right that practitioners in the creative sector encounter more frequently than might be expected.
Moral rights cannot be assigned, but they can be waived
One of the defining characteristics of moral rights under English law is that, unlike copyright, they cannot be assigned or transferred. The CDPA is clear: moral rights are personal rights and do not pass with an assignment of copyright. A creator can transfer all of their economic rights in a work and nonetheless retain their moral rights.
Moral rights can, however, be waived. An author or director may waive any or all of their moral rights by instrument in writing signed by the person waiving them. A waiver may be general or specific; it may relate to existing or future works. In practice, producers and production companies will routinely seek broad moral rights waivers from writers, directors, composers, and other key creative contributors, and these waivers are commonly included within assignment or service agreements. Creators should consider carefully the scope of any waiver they are asked to give.
Duration
The paternity right and the integrity right subsist for as long as copyright subsists in the relevant work; so, for a literary, dramatic, musical or artistic work, they last for the life of the author plus a further seventy years. The right against false attribution, by contrast, continues to subsist only until twenty years after the death of the person to whom the right belongs. These duration rules mean that moral rights can remain legally relevant long after a creator's economic rights have been transferred to third parties.
Finally…
So, Creators, moral rights are a valuable component of the legal framework protecting your work and your reputation — but they will only protect you if they are properly understood and, in the case of the paternity right, properly asserted. They are a key consideration in any creative deal, and should never be overlooked.
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