Briefing Note - Moral Rights protection in the UK

Introduction

Moral rights were first introduced by the Berne Convention art 6, under which member states are required to accord an author with his moral and economic rights. This was brought into UK law by the Copyright, Designs and Patents Act 1988. The most important moral rights include the right of paternity and the right of integrity. Both rights apply to literary, dramatic, musical and artistic works in which copyright subsists. These rights cannot be assigned, except on death.

Right of Paternity

An author’s right of paternity is to be identified on his works when they are published commercially, as defined in s 175 Copyright, Designs and Patents Act. In order for the right to be exercised, it must be asserted, arguably weakening the value and strength of the paternity right. The right does not apply to computer programs, computer generated works or the designs of typefaces. The right does not extend to works where copyright originally vested in the author’s employer. This is because an employer having paid for the creation of the work should have total freedom to exploit the work.

Assertion of Right of Paternity

Assertion of the right of paternity is a statement in writing by the author that he wishes to be named on all copies of the work. The signing of a manuscript would not be construed as assertion because it merely identifies the author and does not explicitly state his intentions to be identified. A letter, though not a legal document, is sufficient, as long as the author makes his desire to assert his right of paternity clear to the recipient. Anyone who has notice of the written instrument will be bound by it.

In the case of an assignment, a statement must be annexed to it stating that the author wishes to assert their right and thus be named on all copies of the work. The right may be asserted at any time; s.78(5) provides that in an action for infringement, the court shall take into account when considering remedies, any delay in asserting the right.

Infringement

Infringement of any moral rights is actionable as a breach of statutory duty owed to the person entitled to the right. The normal remedies are injunctions and damages, which will be assessed on the basis of the damage to the goodwill and reputation enjoyed by the author. Courts may refuse to grant an injunction or damages against someone who spent money in good faith exploiting the copyright work before the right was asserted.