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How the right contract of engagement protects against copyright dilemmas

By John McKeown

Recent changes to the Copyright Act have adopted the overseas trend of recognising the moral rights of an author to their film, literary, dramatic, musical or artistic work.

The gist of the legislation is to recognise the moral rights of the author, but also to recognise the rights of the copyright owner to protect its business goodwill by having the author waive their rights.

So, for example, an employer may obtain a general consent from an employee waiving their moral right to all works produced during the course of employment.  If this waiver is not obtained, then the moral rights would continue unless a waiver is obtained for a specific purpose or work.

And in the case of an independent contractor (as distinct from an employee), section 195AWA(3) prevents a sweeping waiver having effect and requires a specific waiver for each work produced by that contractor for the copyright owner.

So the first task for a publisher and similar business is to determine whether the author engaged is an employee or an independent contractor.  There have been a number of cases decided in the High Court in recent times, particularly in the tax area, which explore this complex issue.

Then they should obtain contracts of engagement where the waiver of a moral rights issue is adequately addressed... up front.

Otherwise a disgruntled author can hold a financial gun to the copyright owner who, in a subsequent sale of the work, may be called upon to provide evidence of a waiver of moral rights by the original author and cannot do so.

Interestingly, section 195AWA(5) provides that the waiver will benefit any successors in title to the copyright owner that purchases that copyright.

And sections 195AM and 195AN make it clear that an author’s moral rights cease on death, and moral rights in respect of works other than film may not be sold or willed to a third party.  However, under section 195AN(2) a trustee in bankruptcy may enforce the author’s moral rights.