Moral Rights in the Copyright Act

by Aimée Riou

Under the Copyright Act, the author of a work is the first owner of the copyright in that work. It is important to know, first of all, that copyright protects two distinct types of rights: economic rights and moral rights. Economic rights belong to the owner of the copyright. That can be the author of the work of course, but it could also be a third party if the author has decided to sell the economic rights.

Another “copyright”?

In the case of moral rights, they belong to the author of the work, no matter if they own the economic rights as well. Moral rights subsist for the same term as the copyright in the work, which is fifty years after the author’s death. Although moral rights cannot be transferred (sold), the author can decide to waive them, in whole or in part. Such a waiver generally occurs in the context of a contract for the exploitation of a work, for example a contract in relation to a movie adaptation of a written work.

The protection of moral rights has two main goals: (1) protecting the right to the integrity of the work; and (2) the right to be associated with the work.

Right to the integrity of the work

The right to the integrity of the work prohibits any modification of the work to the prejudice to its author’s honour or reputation. When steps are taken in good faith to restore or preserve the work, it is not considered to infringe this right. The same goes for a change in the location of the work, in the physical means by which it is exposed or in the physical structure containing the work. On the other hand, in the case of a painting, a sculpture or an engraving, any modification is deemed to infringe the right to the integrity of the work. If the work is totally destroyed, it is not an infringement because it is not considered to affect the author’s honour or reputation.

In addition, the right to the integrity of the work protects the author’s right to refuse that their work be associated with a product, service, cause or institution, in a way that is prejudicial to their honour or reputation.

The right to be associated with the work

The right to be associated with the work allows the author to choose how their work will be associated with them, whether by name, under a pseudonym or anonymously. However, this right only applies where reasonable in the circumstances. For example, when many people have participated in the creation of a collaborative work (an advertising campaign, computer software, etc.), it can be unreasonable to expect the name of every participant to be stated. Thus, a single participant might not be able to assert their right to be associated with the work.

Moral Rights Infringement

Any act or omission that is contrary to any of the moral rights of the author of a work is, in the absence of the author’s consent, an infringement of those rights. In the specific case of an infringement of the right to the integrity of the work, we saw that there must exist a prejudice to the author’s honour or reputation. This means that the author will need to show that their reputation has been damaged, and they will also need to prove that it is reasonable for a creator placed in similar circumstances to feel that way. This being said, experience has shown that it is often difficult to assert this right in court.