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Guidelines on Moral Rights

Purpose
These guidelines provide advice to the employees of the Department of Education, Training and the Arts on acknowledging the moral rights that exist in materials protected by copyright.

What are Moral Rights?
On 21 December 2000 the moral rights provisions were introduced into the Copyright Act 1968. Moral rights are personal rights that:

are granted to individual authors of copyright-protected literary, dramatic, musical and artistic publications and products ('the Work/s);
cannot be transferred to another person or company as they are personal to, and stay with the author even when copyright in the Work is transferred;
provide recognition and respect for authors;
arise automatically in copyright-protected Works but exist separately to copyright rights.

An author's moral rights are:

the right of attribution of authorship - the author has the right to be identified as the author of the Work in various circumstances, including when it is presented to the public. The attribution must be in the manner specified by the author, if reasonable. Otherwise, the attribution must be reasonably clear and prominent
the rights against false attribution of authorship - the author has the right not to have their work attributed falsely to someone else and not to have an altered work attributed as unaltered
the right of integrity of authorship - the author has the right to have the integrity of their work respected and not subjected to derogatory treatment. A treatment is derogatory if it in some way prejudicially affects the honour or reputation of the author.

The 'author' of a Work is the person who actually created/authored the Work, e.g., the writer of an article. More than one person may be the author of a Work if they collaborated in its creation such that their contributions cannot be separated, but mundane editing of a work or having some input of ideas into the development of a work is not enough to be considered an author/creator of the work. As film is a collaborative effort, for moral rights purposes, the author or maker of a film is taken to be the director of the film, the producer of the film and the screenwriter of the film. Moral rights are granted to individuals only and cannot be held by corporate entities, trusts or associations.

Acknowledgement of Moral Rights
School Principals, Institute Directors, and Managers are responsible for managing moral rights in their area, within these guidelines and with support from the Legal and Administrative Law Branch, Department of Education, Training and the Arts.

Moral rights are infringed when rights of attribution and integrity are not respected. Therefore, moral rights must be acknowledged when requested and it is reasonable to do so. For example, for significant works/films, the Department must attribute or identify individual employees as the author(s), where reasonable. As a guidance, a significant work is usually a substantial or major work or a work of technical nature that is the result of considerable creative effort. Works of a purely administrative nature would not be significant works.

It is appropriate not to publicly attribute authorship for much of the work done in the Department, largely due to the nature of the work. However, if an individual requests that authorship be acknowledged for significant work, this will be accommodated where possible and appropriate.

The following types of work generally would not acknowledge authorship:

Policy, guidelines, and any other document formally endorsed as official departmental information
Briefs, Submissions, Media Releases, draft letters produced for another's signature
Official departmental websites

Where an employee feels that they have created a significant work, and that they have moral rights in the work, this should be discussed with the employee's immediate supervisor. Legal advice is available from the Legal and Administrative Law Branch in this regard.

Acknowledgement of authorship should not be obtrusive. If this is not possible, it is appropriate not to acknowledge authorship.

Responsibilities
In order to avoid moral rights infringements, all employees of the Department of Education, Training and the Arts shall:

attribute the author of the work/film where reasonable to do so - in a manner requested by the author where reasonable, or otherwise in a clear and reasonably prominent manner, for example crediting the name of the author and title of the work on material that is reproduced or communicated to the public;
attribute authors of musical and dramatic works where the works are performed at concerts and other performances either in the program or by announcement;
not alter, add to, crop, edit, change, distort or mutilate the work/film of the author unless it is reasonable in the circumstances. It is considered reasonable, for instance, for a staff member to revise, edit, alter, update etc. teaching and learning materials produced by another staff member to maintain currency and accuracy without the permission of the original author;
for significant works, the employees should be attributed as authors unless contributions are numerous and imprecise, where attribution would cause unnecessary difficulty or cost, where an employee has signed a Moral Rights Consent form 17k (permitting non-attribution) or has otherwise requested not to be attributed;
obtain a written consent to such acts or omissions that would otherwise infringe the author's moral rights. Consents should be addressed in all contracts that deal with copyright material such as commission or freelance agreements, employment agreements and licence agreements;
when entering into a contract for the development or procurement of works/films from an external third party, address the issue of moral rights in the contract.

Defences
It is not considered an infringement of an author's moral rights if:

the person using the work establishes that it was reasonable in all the circumstances not to attribute the author; or
the author has consented in writing not to be identified as author (see Moral Rights Consent form 17k).

The factors to be taken into account when determining if it was reasonable not to identify the author are as follows:

the nature of the work;
the purpose for which the work is used;
the manner or context in which the work is used;
the practice in the industry where the work is used;
the voluntary code of practice in the industry where the work is used;
whether the work was made in the course of the author's employment or under contract for services;
use of the work is required by law, or is required to avoid a breach of law;
the views of co-authors.

If moral rights are infringed, a court may:

grant an injunction against using the work;
order that a public apology be made;
order the removal or reversal of false attribution or derogatory treatment of the work;
award damages for loss resulting from infringement. In this case, the author would have to clearly show that their work has been treated in such a derogatory manner that they sustained a financial loss or a loss of credibility that can be attributed to that specific infringement.

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