Moral Rights

The Copyright Amendment (Moral Rights) Act 2000 grants some new, moral, rights to copyright holders, with some implications for the print media.

Nature of the Moral Rights under the Act

The Act grants to each author of an artistic work some additional (moral) rights. These include:

• the right of attribution of authorship

The author of a published story is entitled to be identified. S/he has a right to stipulate how s/he wishes to be identified, and if the demand is reasonable, then the author must be identified in that way.

• the right not to have authorship falsely attributed

The author is protected from having another person's name affixed to their material so as to imply that the other person is the author of the work. Care will have to be taken with joint by-lines where the work of one or more journalists is involved in a single article.

If an article is edited by someone other than the author, it is an act of false attribution to treat the work as being unaltered. This may mean that a sub-editor who substantially changes an article will need a joint by-line.

• the right of integrity of authorship

It is now an author's right not to have the work subjected to 'derogatory treatment'.

In respect of an article, an author's right of integrity means s/he is protected from changes that result in material distortion, material alteration, or mutilation that is prejudicial to honour or reputation.

Reasonableness test

lnfringement occurs if a person fails to observe an author's moral rights unless there is a reasonable cause. The Act goes into some details as to how 'reasonable' is to be determined and contains a provision that any practice contained in a relevant voluntary code of practice governing the work is to be taken into account. Other matters to be taken into account include whether the work was made in the course of the author's employment or under a freelance contract and whether the treatment of the article was required to comply with a law (such as defamation).

The Act does not make any provision for the 'waiver' of moral rights but it does allow for written consent genuinely given by the author or for consent to the use of a pseudonym by the publisher. However, employed journalists, artists and photographers may consent to their employer doing acts which may otherwise infringe their moral rights in relation to all works made by them, and to be made by them, in the course of their employment.

The print media

There are implications for newspaper and magazine publishers.

These rights are quite separate to the copyright of employed journalists which is owned by the employer, and the copyright of freelance journalists which belongs to the freelance journalist unless there is an express consent otherwise. The moral rights remain with the author, whether or not the publisher owns the copyright.

Works used in the print media industry consist of literary works, which range from short news stories to major feature articles or opinion pieces and artistic works, which includes photographs. It is a common practice that the literary works are edited for various reasons. There will be times when a journalist's original work is almost unrecognisable in its new form.

There are also times when photographs will be digitally altered for various reasons. The practice of digitally enhancing photographs could be dangerous without the photographer's consent

Other issues arise over by-lines. Some publications have a policy of providing by-lines for nearly all articles. Others rarely, if at all, attribute by-lines to the journalist. This involves the right of attribution. Editors will be able to argue strongly that their newspaper's editing practices and by-line policies make their treatment of articles 'reasonable' within the meaning of the Act, particularly bearing in mind the traditions of the industry and the nature of the work.

Many publishers already receive complaints from contributors, and the occasional employee, over perceived distortion or mutilation of their work, or omission of a by-line - even before the Moral Rights provisions were enacted to reinforce such a claim. Editors would be well advised to consider obtaining appropriate consents from authors or, at the very least, make contributors aware that the newspaper or magazine reserves the right to edit, as it sees fit, any material submitted for publication.

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