[LINK] moral rights in Australia?

Tom Worthington Tom.Worthington at tomw.net.au
Fri Nov 21 12:20:24 AEDT 2008

At 02:11 PM 20/11/2008, Eric Scheid wrote:
>A client is asking me to waive all moral rights ...

Some years ago I was handed a draft contract by a client with a 
similar clause about me waving my moral rights. In this case it 
concerned something which would be published with my name on it, so I 
thought the issue worth disputing. I got the moral rights waver 
deleted without a quibble from the client's lawyers. If it was an 
internal document, or one which went anonymously into a corporate 
report I would not have worried about it.

Here is a lucid discussion of this issue from ECU at: 

"Moral rights are rights belonging to a creator of a copyright work. 
They are rights of attribution, and are not the same as the economic 
rights that the owner of the copyright has. Moral rights are those of 
the creators of copyright work and include the right to be attributed 
for their work, to not have their work falsely attributed and for the 
integrity of authorship to be respected.

Moral rights cannot be assigned as they are personal rights. However, 
the owner of moral rights can agree to forgo or waive their rights to 
claim damages or take legal action for an infringement of their moral 
rights. This agreement is called a consent or waiver of moral rights.

Therefore as moral rights cannot be assigned, clause 11.1 does not 
appear to have the effect of waiving the right to bring actions for 
infringement of moral rights in respect to copyright material created 
under the agreement. The clause clearly contemplates that 
intellectual property is created by a person and then assigned to the State.

To enable the University to comply with the obvious requirement of 
the State that it either hold all the intellectual property rights or 
else be immune from prosecution, all of the researchers involved in 
the project who may have moral rights in any of the project outputs 
must provide written confirmation to the Office of Research and 
Innovation confirming their consent for the State and ECU to use the 
outputs in a manner that may infringe their moral rights."

There is a discussion of this in the arts context at: 

Tom Worthington FACS HLM tom.worthington at tomw.net.au Ph: 0419 496150
Director, Tomw Communications Pty Ltd            ABN: 17 088 714 309
PO Box 13, Belconnen ACT 2617                      http://www.tomw.net.au/
Adjunct Senior Lecturer, Australian National University  

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