LW4641 Chap.8 Moral Rights of Authors and Directors
Moral Rights of Authors and Directors
Personal rights that survive a sale
Moral rights belong to the individual creators of copyright works and cannot be transferred, assigned or sold. An owner who has bought the copyright can therefore still infringe them. The Ordinance gives authors and film directors three: the right to be identified, the right not to have a work falsely attributed to them, and the right to object to derogatory treatment.
Performers have parallel rights of their own.
Identification must be asserted
Section 89 lets the author of a work in one of the four authorial categories, or a film's director, insist on being named when the work is published commercially, performed or communicated to the public, or appears in a film or recording made available, but nothing infringes the right until it has been asserted under s90.
Identification must follow the author's specification or otherwise be reasonable.
The Sawkins v Hyperion credit, which thanked an editor for preparing performance materials, raises the question whether a courtesy line identifies authorship at all.
False attribution
Section 96 protects a person against having a work falsely attributed to them as author, or a film as director, whether by issuing copies bearing the attribution or by performing or showing the work as theirs with knowledge.
In Clark v Associated Newspapers a parody of a politician's diaries carried his name and photograph, and because the notional reasonable reader skim-reads and a substantial number were misled, the claim succeeded.
Integrity needs prejudice
Under s92 treatment means an addition, deletion, alteration or adaptation, excluding translations and simple changes of key, and it is derogatory if it distorts or mutilates the work or otherwise prejudices the author's honour or reputation, judged by right-thinking members of the public.
Pasterfield v Denham rejected trivial changes to a brochure, and Confetti Records v Warner Music rejected a claim over rap lyrics added to a dance track because there was no evidence of prejudice.
Duration, waiver and death
Identification and integrity last as long as copyright, and false attribution until twenty years after death.
The rights can be waived in a signed writing under s98, and on death they pass under s106.
What this chapter covers
- 01
Moral rights belong to individual creators
- 02
The right to be identified and assertion under s90
- 03
What counts as sufficient identification
- 04
False attribution and the reasonable reader
- 05
Treatment, distortion and prejudice
- 06
Duration, waiver and transmission on death
Worked example · free
Choose the moral right the facts actually engage
- 2Dispose of the identification right.
- 4Analyse treatment and derogatory treatment.
- 2Consider false attribution of the new ending, and conclude.
Key terms
- Assertion
- The step, under s90, that must be taken before the right to be identified can be infringed.
- False Attribution
- An express or implied statement that a person is the author or director of a work they did not create, protected against under s96.
- Treatment
- Any addition to, deletion from, alteration to or adaptation of a work, other than a translation or a simple change of musical key or register.
- Waiver
- Giving up a moral right by an instrument in writing signed by the rights holder, for specific works, works of a description or works generally.
- Notional Reasonable Reader
- The reader whose understanding decides whether a work conveys a false attribution, as in Clark v Associated Newspapers.
Moral Rights of Authors and Directors FAQ
Can I sell my moral rights with my copyright?
No. Moral rights cannot be assigned, so they stay with you after a sale of copyright. They can, however, be waived by a signed written instrument, and a waiver in favour of the copyright owner is presumed to extend to its licensees and successors unless a contrary intention is expressed.
Is changing the colour of a design derogatory treatment?
It is treatment, because the work is altered, but it is derogatory only if it distorts the work or prejudices the author's honour or reputation in the view of right-thinking members of the public. In Pasterfield v Denham trivial changes to a brochure, visible only on close inspection, did not qualify.
How long do moral rights last in Hong Kong?
The right to be identified and the right to object to derogatory treatment last as long as copyright subsists in the work. The right against false attribution lasts until twenty years after the person's death. On death the rights pass as the person's will directs or, failing that, with the copyright or to the personal representatives.
Exam move
Make a three-row table with one moral right per row and columns for who holds it, what infringes it, the extra element it needs, its duration and its leading case. Filling it from memory the night before the exam is enough revision for this topic, because the marks come from applying those five cells to the facts.
Working through Moral Rights of Authors and Directors in LW4641? Sia is AskSia’s AI Law tutor — ask any LW4641 Moral Rights of Authors and Directors question and get a clear, step-by-step explanation grounded in how LW4641 is taught and assessed. Read this chapter free, then take your hardest questions to Sia.
