Copyright are not only authors’ economic rights, but also authors’ moral rights, the exemplary scope of which is listed in Article 16 of the Act of 4 February 1994 on Copyright and Related Rights (Polish J .of L. of 2019, item 1231 as amended, further referred to as “Copyright Act”). Yet, contracts that regulate the copyright to pieces of work usually refer only to the author’s economic rights, often leaving out the author’s moral rights.
Authors’ moral rights are not limited by time and preserve and protect the author’s inalienable link with their work, in particular the right to:
- work authorship,
- have the work signed with the author’s name or pseudonym or making it available anonymously,
- the integrity of the content and form of the piece of work and its fair use,
- decide about making the work publicly available for the first time,
- oversee the manner in which the work is used.
Thus, the scope of the assignee’s rights to the work results not only from the manner in which the work will be used (specified in the contract), but also from the author’s moral rights. For example:
- if the assignee of the rights would like to exploit the work and indicate its author, the author may, however, expect the published work to be signed with his pseudonym or remain anonymous,
- when the work is of a practical/business nature (e.g. a logo), the assignee has usually no interest in indicating the author of such a work, despite the fact that the author has the right of attribution,
- when the assignee of the rights to an architectural or interior design of a house wants to remodel the house or redecorate the interior and the author of the design objects.
The above examples are only a small fraction of all the potential problems connected with the exploitation of a piece of work. However unrealistic fully eliminating such problems may seem, it is advisable that the contract thoroughly stipulates the powers of the assignee in respect of the author’s moral rights. Still, first we must specify whether and to what extent the author can be excluded or deprived of the right to exercise his/her moral rights to the work.
The answer is rather simple – authors’ moral rights are inalienable, which means that the author can never be deprived of exercising them. Of course, this doesn’t mean that the assignee can’t secure their own rights in a manner that enables a less constrained use of the work. The above issues should be provided for in the contract, under which the author may undertake not to exercise his/her rights or authorise the assignee to exercise these rights on the author’s behalf. This does not, however, deprive the author of his/her statutory moral rights. They still have them, except, if they breach the contractual obligations, they may be liable to the assignee for damages.
The issue of authors’ moral rights is highly complex, much based on casuistry and, as such, should only be considered in the context of the factual state. In cases of potential disputes, consideration should be given not only to the content of the contract between the parties, but also to other circumstances (e.g. course of negotiations, relations between the parties or their behaviour after entering into the contract). Appropriate contract clauses specifying the author’s obligations will give us the right to either intervene in the author’s rights or seek compensation for damages resulting from the exercising of the moral rights by the author.
The above observations only refer to the contractual relations between the assignee of the rights and the author. What happens in a situation when the assignee enters into a contract with an entity other than the author of the work (e.g. the author’s employer)?
In such a case the assignee should also take care of regulating his/her powers as regards authors’ moral rights (although through a guarantor, i.e. the assignor). In the contract with the assignor we should primarily focus on stipulating that entity’s liability towards the buyer of the rights for potential failures to fulfil their obligation to prevent the authors from exercising their rights. Should the authors make any claims or demands against the assignee, the latter has the right to seek compensation for damages from the assignor.
To sum up, it is possible to stipulate the matters of authors’ moral rights in a contract. However, due to the complex nature of this issue, it is recommended to consult every new copyright contract with a specialist and to consider using professional model contract for standard cases.
author: Przemysław Barchan