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What Are Moral Rights in an Intellectual Property Clause?

Perhaps you’ve just been given a new job. In the employment agreement, you notice a clause addressing moral rights. What does this mean?

Moral rights protect an author’s non-economic, personal interests in a work. As moral rights are addressed in Canada’s Copyright Act, a brief description of copyright is necessary to understand the role of moral rights in employment agreements.

What Does Copyright Protect?

Copyright protections apply to any “original literary, dramatic, musical and artistic work”, as outlined in section 5 of the Copyright Act. As copyright protections apply to any original work, creations such as blog posts, artwork, or essays are protected by copyright, as long as they are fixed in a tangible medium. Copyright does not protect the idea behind a work. Rather, it is the expression of a work that is protected by copyright. As soon as a work is created it is automatically protected by copyright.

Who Owns Copyright in a Work?

The author of a work, meaning the person who created the work, may be a different person than the owner of the work. This is an important distinction because the rights granted to an author may be different than those granted to an owner of a work protected by copyright.

Section 13(1) of the Copyright Act states that the author of a work is the first owner of a copyright. However, this is not always the case, for example, a work that is made during the course of employment typically belongs to the employer. In this situation, the creator is still the author of the work, but the employer is the owner of the work.

Economic Rights vs Moral Rights

In the Copyright Act, two types of rights that are granted to owners and authors of works are addressed: economic rights and moral rights. When thinking of the rights that a person has in a work, economic rights typically come to mind first. These rights protect the financial interests of an author and are found in section 3 of the Copyright Act.

Some examples of economic rights include:

  • The right to produce the work
  • The right to reproduce the work
  • The right to publish the work
  • The right to perform the work
  • The right to present the work as a cinematographic work
  • The right to communicate the work to the public

Moral rights grant the author of a work the rights to the integrity of, and association with, their work. Moral rights cannot be transferred to another person, even if ownership is assigned, but moral rights can be waived. Therefore, an employer can ask that an employee waive their moral rights entirely but cannot ask the employee to transfer the moral rights to the employer, as this is not permitted under the Copyright Act.

Some examples of moral rights include:

  • The right to be associated with the work
  • The right to not be associated with the work (for example, by remaining anonymous)
  • The right to not have the work distorted, mutilated, or modified
  • The right to not have the work used in association with a certain product, service, cause, or institution

An example of an individual asserting their moral rights is the case Snow v The Eaton Centre Ltd et al (1982), where a sculptor was commissioned to create a sculpture of geese flying in the Eaton Centre. Without consulting the sculptor, the Eaton Centre placed bows on the geese during the holiday season. The sculptor claimed that this change to his sculpture violated his moral rights and brought forward an action. Ultimately, the claim was successful as the Court found that there was a violation of the sculptor’s moral rights.

Why Would an Employer Address Moral Rights?

As previously mentioned, when an employee produces work in the course of employment, the employee is the author, and the employer is the owner of the work. This means that the economic rights rest with the employer, but the moral rights belong to the employee. If no agreement is made for the employee to waive their moral rights, the employee retains the rights to the integrity of, and association with, the work. This may create limitations for employers regarding how work created by their employees in the course of business may be used.

If an employee agrees to waive the moral rights associated with their work, their employer can then freely use that work as they see fit. This is valuable to employers because it allows them to display and share an employee’s work freely, and to adjust the work as necessary. If an employee does not waive their moral rights, then any changes to their work could be considered a violation of the employee’s moral rights.