Moral Rights in (Canadian) Copyright Law – Introduction
Moral rights in a copyright work are entirely separate from the legal or economic rights. They can not be sold or transferred, and they can only be waived, which they frequently are in entertainment law agreements.
What exactly are moral rights? What are authors giving up when they waive their moral rights? Why is waiving moral rights important for some purchasers or licensees of an author’s works?
The Background
Generally, moral rights in copyright law protect an author’s connection to and vision for the work. (Note: author refers to any creator of a copyrightable work, such as a book, song, screenplay, design, painting, and so on).
The definition of moral rights in Canada is found in sections 14.1 and 14.2 (re authors) and sections 17.1 and 17.2 (re performers) of Canada’s Copyright Act (the “Act”). The author has the following moral rights:
- to the integrity of the work,
- to be associated with the work as its author by name or under a pseudonym, and
- to remain anonymous.
The Act states that moral rights cannot be assigned but may be waived, in whole or in part, by the author. An assignment of copyright does not, by itself, constitute a waiver of any moral rights. There must be express language detailing the waiver.
Where the waiver is made in favour of an owner or licensee of copyright, it may be invoked by the owner or licensee as well as by anyone authorized by the owner or licensee to use the work. Moral rights continue for the duration of the copyright in the subject work and, when the author dies, the author’s moral rights pass to their successors (for further detail see section 14.2(2) of the Act).
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The Right to Integrity of the Work
In the context of moral rights, integrity refers to maintaining the author’s intended meaning of the work and protecting it from defamation or destruction. For example, this right protects the work from being altered in a way that is counter to its original intention without the author’s permission.
It also protects the context in which the work is presented and protects it from being used in a way that is derogatory or offensive to the work. It protects the work from being destroyed without first being offered back to the author.
When a work is being incorporated in a larger work, a waiver of the right to integrity is critical. Such a use almost always involves adapting the work, effectively violating its integrity.
For example, without a waiver, an animator’s character designs for an animated film or series could not be revised and the author would need to approve each context (story) in which they were used, which is completely impractical and would likely render the work unusable by the producer.
The Right to Association
The right to association protects an author’s right to be credited in connection with the use of their work. The author has the right to be named publicly as author of the work. This right also allows the author to determine how and in what context their work is used and how they are associated with it. This right has been said to exist even after the author no longer owns the work.
For example, this right may allow an author to remove their work from a museum exhibition even where the museum owns the work. Alternately, the author may choose to remove their credit or association to the work from the museum’s exhibition.
Waiving the author’s right to association means that the owner or licensee of the work does not have to credit the author to use of the work. However, despite the general waiver of this moral right, most agreements under which works are sold or licenced will contain a clause that expressly defines the specific credit to be given to the author.
The Right to Remain Anonymous
The converse of the right of association is the right to remain anonymous. The author has the right not to be credited for or associated with their work.
Moral Rights in (Canadian) Copyright Law – Conclusion
Moral rights are found in many types of entertainment law agreements. As with other provisions, it is important for the parties to understand them and the implications of their waiver or non-waiver. If you are a creator of copyright works or someone who purchases or licenses such works, and have questions about moral rights, we encourage you to speak with Edwards Creative Law or another entertainment lawyer.
For information about other instances of gathering and waiving rights in agreements, we encourage you to visit our blog entitled Gathering and Waiving Rights – Ask An Entertainment Lawyer.
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* This blog is for general informational purposes only and is not to be construed as legal advice. Please contact Edwards Creative Law or another lawyer, if you wish to apply these concepts to your specific circumstances.
