By Hannah Pelka-Caven

Many employment contracts include references to moral rights as part of their intellectual property clauses.

These clauses will generally outline that by signing the contract, the employee agrees, or ‘irrevocably consents’ to the company infringing those moral rights.

Moral rights are automatic personal rights that attach to works upon creation. They are distinct from copyright and include the:

• right of attribution – which is the right of an author to be identified and named as the author of their work;
• right against false attribution – which is the right of an author to stop someone else being credited as the author of their work; and
• right of integrity – which is the right of an author to ensure that their work is not subjected to derogatory treatment (which includes material alterations).

‘Work’ in this sense includes documents created by an employee during their employment.

For example, if you employ a Human Resources manager who creates a policy document for your company, that policy document will contain both literary copyright in it as a document, and associated moral rights.

The key difference between copyright and moral rights is that moral rights cannot be bought or assigned – they belong to the author of the work regardless of whether they are the copyright holder.

Moral rights apply to artistic, literary, dramatic and musical works and films (among other things).

Importantly, literary work in this sense also includes the ordinary day-to-day documents that are drafted in the scope of employment, for example, website text, or employment manuals.

The starting point under copyright law is that the author or creator of works is the first owner of copyright.

However, the Copyright Act 2000 (Cth) allows copyright to be assigned to the employing company with the employee’s consent. This is generally done by way of an intellectual property clause in an employment agreement to provide that the employer has ownership of the work created by the employee during their employment.

However, even if the copyright belongs to the employer, this does not necessarily mean that moral rights have also been dealt with. This is why intellectual property clauses specify and discuss copyright and moral rights separately.

Creators can consent in writing to specific actions or omissions which would, in the absence of that consent, amount to an infringement of their moral rights.

Good intellectual property clauses that also provide the employee’s consent in writing, in relation to moral rights, allow the company to fully use and amend documents created by the employee across their employment, even where the company may already own the copyright in these documents.

This is important, as otherwise the company would not be able to significantly amend documents created by the employee, as it would breach the employee’s moral right of integrity, or use documents created by employees without naming them without breaching the right of attribution.

For these reasons it is important that intellectual property rights and moral rights are appropriately dealt with in your employment agreements, and that any consent given under an intellectual property clause survives the termination of the employment relationship.