Author’s economic and moral rights — what are they?

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Author’s economic and moral rights. Everyone probably knows what they are about, but it is often a real challenge. I have already mentioned copyrights several times, so today we will describe them in more detail. What are the author’s economic and moral rights?

Read also: Liability for infringement of copyrights — what you can do

Who owns the copyrights?

You, the author of the work, are the owner of the copyrights.

A work is any manifestation of creative activity individual in nature, established in any form, regardless of its value, purpose and manner of expression.

The author is entitled to additional benefits by virtue of law — these are the author’s economic and moral rights. They are granted automatically and without any formalities.

When it comes to the protection of industrial property, the case is different, but this is something we will talk about in a separate article.

Author’s economic rights

The most important right resulting from the author’s economic rights is the possibility to use and dispose ofthe work in all fields of exploitation, which play an important role. Each time the author is entitled to a compensation for the use of the work in each separate field of exploitation.

Of course, these rights are limited by the permitted use, both private and public, and other restrictions on grounds of the public interest. It is so-called the author’s monopoly. Some of the actions performed by the recipients of the work require your consent, and others do not.

The first ones will include activities such as publishing your photos or playing music on the radio.

However, you will not need a permission to make a copyof the work as a part of a group of friends or to record your favorite episode of the series directly from the TV.

Another, but equally important, right, or rather a possibility, is to transferor license these rights to third parties. It can then be limited to specific fields of exploitation, the duration or the scope of the work’s use. You are entitled to receive a compensation for granting this freedom.

How long do the author’s economic rights last?

The author’s economic rights are limited in time. Both in the European Union and in Poland, the usual duration is 70 years, counted from the last day of the calendar year from the date of the artist’s death. Moreover:

  • if the work is anonymous, the term of protection is calculated from the date of its first distribution;
  • in the case of co-written works, the term of protection is calculated from the death ofthe last co-author;
  • for films, this period is calculated from the date of deathof the person who died later: the main director, the author of the screenplay, the author of the dialogues, the composer of the music composed for the work in question;
  • in the case of works to which rights are granted by law to a person other than the author (a producer, an editor, etc.), the period is calculated from the date of distributionof the work, and if the work has not been distributed — from the date of its determination.

Author’s moral rights

Contrary to the author’s economic rights, the moral rights protect the author’s unlimited relationship with the work. These rights are, by their very nature, not transferable and they cannot be waived.

However, it is accepted that there is a possibility to restricttheir exercise or to allow another person to exercise these rights on the author’s behalf. This is done by including an appropriate provision in the agreement.

Another difference is that moral rights take precedence over the economic rights.

The intellectual relationship between the author and the work is protected, which means that the author is entitled to:

  • the authorship of the work;
  • mark the work with the name or a pseudonym of the author or to make it available anonymously, even if it is for authorised use;
  • the integrity of the content and form of the work;
  • proper use of the work;
  • decide about the first publication of the work;
  • supervise the way in which the work is used.

Examples can be multiplied. The ones I encounter on a daily basis are the following ones: the lack of the signature of the author of the work, which usually appears in newspapers; the attribution of the authorship of the work, also called plagiarism; and the modification of the photographs — their enlargement, reduction or framing.

However, it is worth noting at this point that when it comes to modifying the work, two conditions must be taken into account (and cumulatively fulfilled), when possible:

  • the changes are due to an obvious necessity;
  • and the author has no legitimate basis for opposing them.

This is the case when the work has a technical defector has not been adapted to a predefined medium.

What you can do if a client publishes pictures without processing

A very important piece of information, especially for fashion photographers, is that:

‘(…) the user of the work is obliged to allow the author to carry out an author’s supervision before the work is distributed. This is the period from the date of conclusion of the agreement under which the economic rights in the work were transferred or made available to the licensee, publisher or producer until the date of the distribution of the work.’ – Article 16, Act on Copyright and Related Rights. Commentary, 2014, ed. prof. dr hab. Ewa Ferenc-Szydełko.

Catalogue of rights deriving from the author’s moral rights

The catalogue of rights listed in the Act is not sufficient, the author has also the possibility to:

  • object to the destructionof the work;
  • access the work at the purchaser’s premises;
  • withdraw the work from circulation;
  • withdraw from the agreement or to terminate it;
  • carry out an author’s supervision prior to the distribution of the work.

Another curiosity is the judgement of the Court of Appeal:

‘Examples of levels of protection of creativity as a personal right include, in particular, the right to protection of the ‘good repute of the work’or the ‘good repute of the author’s achievements’, i.e. the right to prevent behaviors that may harm the good repute (reputation) of the work or the reputation of the author himself/herself, as well as the right to protection against the unauthorized use of the elements of the creative process and the work of the author as well as against their unlawful appropriation(…)’ – the Court of Appeal in Białystok, of 31 July 2012 (I ACA 303/12, Legalis).

It implies that the protection also applies tothe way in which the work is further distributed and received by third parties, so that it does not damage the author’s reputation or the reputation of the work.

Read also: Liability for infringement of copyrights — what you can do

Summary in points

I’ve provided a huge amount of information for you to process, so it’d be a good idea to summarize the article in the most crucial points. I hope that it’ll offer some insight to the today’s topic and it’ll be useful in the future.

1) Author’s economic rights
– usually, they are limited in time to a period of 70 years from the death of the author;
– they may be transferred to third parties;
– a third-party license may be granted;
– the right to use the work;
– the right to collect royalties for the use of the work;
– the right to dispose of the work in all fields of exploitation.

2) Author’s moral rights
– unlimited in time;
– cannot be waived or disposed of
– it is possible to limit the performance by a provision included in the agreement;
– the right to authorship of the work;
– the right to mark the work with a name or a pseudonym of the author or to make it available anonymously;
– the right to integrity of the content and form of the work, with exceptions;
– the right to a fair use of the work;
– the right to decide about the first publication of the work;
– the supervision of use.

If you have a question or you want to discuss a matter related to this article, feel free to comment below or get in touch with me directly via e-mail. Maybe I will bring your topic up in my next article.

Arkadiusz Szczudło

Arkadiusz Szczudło

Jestem adwokatem, Partnerem Zarządzającym w kancelarii Creativa Legal, wiceprezesem fundacji Creativa Education, mentorem i twórcą internetowym. Specjalizuję się w prawie nowych technologii oraz prawnym wsparciu biznesu – w tym w szczególności e-commerce i biznesu online. Jestem ekspertem w zakresie prawnych aspektów technologii blockchain.

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