A copyright owner has the exclusive right to do certain activities (often called “restricted acts”), or to authorise others to do those activities, in relation to their work. The restricted acts can be summarised as the right to:
- Copy the work;
- Issue copies of the work to the public for the first time (often called the “publishing right”);
- Perform, play or show the work in public;
- Communicate the work to the public (on radio, TV, transmitting electronically or make available online); and
- Adapt the work (including to translate a poem from one language to another or adapt a novel into a film script) and do any of the above activities in relation to an adaptation.
The specific rights set out in the Copyright Act differ slightly in respect to different types of material.
No distribution right
Copyright owners do not have a general “distribution right”. The right to issue copies to the public essentially allows an author to prevent an unpublished work from being published. The publishing right is therefore limited to the first distribution of a work (although there are rental distribution restrictions in relation to computer programs, sound recordings and films).
Scope of publisher copyright
Traditionally, writers license their publishing right in literary or dramatic works to third party publishers under a publishing agreement. The publishing agreement will detail all the rights the publisher needs to publish the work as well as any subsidiary rights, such as translation or anthology rights. In some cases, the publisher will get the necessary rights via an assignment or transfer of copyright.
When the material is published, the publisher acquires a separate copyright in the typographical arrangement of the published edition. The typographical work exists independently from copyright in the underlying works. Publishers have the exclusive right to copy their material, to communicate copies to the public and to authorise these activities. It follows that a publisher can legally prevent a person from making unauthorised copies or transmissions of the published edition (unless a copyright exception applies, such as fair dealing).
The extent to which an author may authorise someone other than their publisher to copy, perform, communicate or adapt their work is a matter of negotiation and agreement. Just because a publisher has the right to publish a work, does not mean they have the right to perform the work in public or do any of the other restricted acts, unless the copyright owner has given their permission. Ideally these matters will be dealt with in the publishing agreement.
The Copyright Act gives authors certain moral rights in their work which protect a creator’s reputation and the integrity of their work. Moral rights are separate from the traditional economic rights and remain with the creator, even if they have transferred copyright to another person or if copyright is initially owned by someone else. In summary, the moral rights are:
- the right to be identified as the author of the work (the right of attribution);
- the right to object to derogatory treatment of the work (the right of integrity); and
- the right to not have a work falsely attributed to them.
There is a requirement that the right to be identified as author be “asserted” to be enforced. An author who has asserted their right of attribution must be identified reasonably prominently in relation to all copies of the work. In a book, for example, the assertion may be included on one of the first pages.
Even if the right of attribution is not asserted, it is usual practice for publishers to attribute writers, illustrators, photographers and all other creators, where possible. However, there are instances where a publisher may not wish to attribute a creator, for example, if a book is ghost-written and it is important to keep the true author’s identity secret. Publishers need to ensure there is a specific clause in any publishing agreement containing the creator’s consent about non-attribution.
In practice, the author’s right of integrity translates as an obligation on publishers to not alter an author’s work without written permission from the author. Alterations to a work may be considered prejudicial to the author’s honour or reputation so consent to make alterations is needed before publication to avoid infringing moral rights. Representing a work as an author’s work when it has in fact been altered by someone else, may also infringe the moral right relating to false attribution.
There are many exceptions to moral rights, for example, where works are provided with the consent of the author for publication within a newspaper, magazine or similar periodical or an encyclopaedia, a dictionary, year-book or other collective reference work. In addition, the attribution right does not apply if copyright has vested in the employer of the author. The moral right of integrity cannot be invoked in reporting of current events.