Nature of Rights
Moral rights are the author’s personal rights. The purpose of the right is to protect against damage to the author’s reputation. The full extent of the rights is unclear. The rights continue to exist, notwithstanding the transfer of the copyright to a third party.
The right continues until at least the expiry of the copyright itself. The right in relation to false attribution of work shall subsist for 20 years after the death of the person on whom the right is conferred.
Moral rights may not be transferred. They may pass to beneficiaries on death, subject to limitations. The rights conferred are incapable of assignment or alienation. On the death of a person entitled to the paternity right, the integrity right, or the right to privacy in photographs and films— the right passes by will to such person as the person entitled to the right may direct.
Where there is no direction as to whom the right passes but the copyright in work concerned forms part of an estate, the right passes to the person to whom the copyright passes. Where the right does not pass in these circumstances, it is exercisable by the personal representatives of the person entitled to the right.
Secondary infringement applies in respect of the author’s moral rights. There is secondary liability and infringement for importers, retailers, distributors and those possessing the works in the course of business or making it available to the public.
Moral rights give the author the right to be identified as the author in relation to a work and an adaptation of the work (the paternity right). The assignee of copyright may not claim to be the author.
Where an author uses a pseudonym, initials or another form of identification, that form shall be used to identify his or her work. The paternity right or the integrity right is, in the case of a work of joint authorship, a right of each joint author.
The paternity right shall not apply to
- anything done by or with the authority of the copyright owner where the copyright in the work originally vested in an employer
- in relation to a work made for the purpose of reporting current events.
- to a work made for the purposes of) a newspaper or periodical, or an encyclopedia, dictionary, yearbook or other collective work of reference, or in relation to a work made available to the public with the licence of the author for those purposes.
- in which Government or Oireachtas copyright subsists, or in which the copyright originally vested in a prescribed international organisation, unless the author has previously been identified as the author in or on copies of the work which have been lawfully made available to the public.
A further aspect of moral rights is the right not to have the work distorted and misrepresented in a way which prejudices the author’s reputation (the integrity right). The author of a work has the right to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the work which would prejudice his or her reputation and that right shall also apply in relation to an adaptation of the work.
This may apply, for example, to the adaptation of a work in a different media.
The integrity right shall not apply to
- a work made for the purpose of reporting current events;
- a work made for the purposes of a newspaper or periodical, or an encyclopedia, dictionary, yearbook or other collective work of reference, or to a work made available to the public with the licence of the author for such purposes; or
- subsequent use of that work) without any modification of the version made available to the public
- by anything done for the purposes of avoiding any contravention of civil or criminal law ( complying with a duty imposed by or under an enactment, or i) in the case of authorised broadcasters or authorised cable programme service providers, avoiding the inclusion in a programme which is broadcast or included in a cable programme service by those broadcasters or providers, of anything which is likely to offend public morality or which is likely to encourage or incite to crime or to lead to public disorder.
The integrity right does not apply in the following cases unless the author is identified at the time of the act concerned or has previously been identified in or on copies of the work which have been lawfully made available to the public, and where, in such a case, the integrity right applies, that right shall not be infringed where there is a sufficient disclaimer
- works in which copyright originally vested in the author’s employer
- works in which Government or Oireachtas copyright subsists, and
- works in which copyright was originally vested in a prescribed international organisation.
There is a right not to have a work falsely attributed to him as the author. Attribution, in relation to a work, means a statement, express or implied, as to who is the author of the work.
Private Photos & Films
Where photographs and films have been taken or commissioned for private and domestic purposes, then notwithstanding that the photographer may have copyright, the person who has commissioned the photograph has the right to restrain the work from being made available to the public. Certain limited defences are available.
A person who, for private and domestic purposes, commissions the taking of a photograph or the making of a film, where copyright subsists in the resulting work, has the right not to have the work or copies of the work made available to the public. The act of making available to the public, or authorising the making available to the public, of a work or copies of such a work) without the authority of the person who commissions the work infringes the right. Various exceptions and limitations apply.
The right conferred to privacy in photographs and films is, in the case of a work made pursuant to a joint commission, the right of each person who commissioned the making of the work and where a waiver is made by one of them, that waiver shall not affect the rights of the other persons.
The rights of fair dealing and criticism for the purpose of review may apply, notwithstanding the right.
Broadcasters and cable programme services may alter the work, if its inclusion would be likely to offend public morality, encourage crime lor lead to public disorder.
An EU Directive provides for the right of the original author of a work of art to a re-sale right. A royalty right continues to apply subsequent to the original sale or disposition of the work. This right is non-transferable. Certain information must be made available to the artist.
The Irish Visual Artist Organisation is the collecting society in relation to the right. The right is controversial, and Ireland and the UK has sought derogations. The royalty is fixed by reference to values. A certain percentage applies above a certain sales level, falling from 4 per cent at up to €50,000, ultimately falling to 0.25 per cent. There is a cap of €12,500, which exhaust the right.
Any of the above moral rights may be waived. A waiver must be in writing and signed by the person waiving the right concerned.
A waiver 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 may be conditional or unconditional, and may be expressed to be subject to revocation. Where a waiver is made in favour of the owner or prospective owner of the copyright in the work or works to which it relates, that waiver shall be presumed to extend to his or her licensees, successors in title or other persons claiming under them unless a contrary intention is expressed.