Companies or employers dealing with employees or contractors need to minimise the risks of infringement action by employees or contractors about moral rights in works created by them during employment or work.
An employer will not infringe the moral rights of an employee if the employee gives consent. Section 195 AWA of the Copyright Act provides that consent may be given by an employee in relation to all acts or omissions by the employer (whether before or after the consent) and in relation to all works created. There must be a written consent and will be invalid if it was obtained under duress or because of misleading and deceptive statements.
An employer may seek an employment contract that contains similar wording to overcome any problems:
As to moral rights retained by the employee in relation to such works, the employee ratifies and consents to any and all acts or omissions (whether before or after the consent is given) by the employer for such moral rights and agrees not to assert any moral rights for the works, for so long as the moral rights shall subsist.
The consent shall operate and bind the heirs and assigns of the Employee for so long as the moral right is retained after the Employee’s death. Moral rights last for the same time as copyright protection (50 years after the author’s death) and will be administered by legal representatives after their death.
In Australia, unlike other jurisdictions, the author cannot waive their moral rights but merely consent to acts that may otherwise infringe upon their moral rights.
The situation differs in relation to contractors as opposed to employees. Whilst comprehensive consents may be obtained from employees, any consent obtained from contractors must specify acts or omissions, of the class or types of acts or omissions being consent to and consent must relate to specific work existing at the time or a description of the works.
As to the moral rights of the contractor in relation to operating manuals, technical methods, reports, maps and layouts, correspondences and memos, computer programs and web page designed, created or prepared by the contractor, which are produced during the term of the contract and as a result of work performed for the customer, the contractor ratifies and consents to any and all alterations, modifications and adaptations, including significant distortion of works, the publication, reproduction and distribution of such works at the discretion of the employer and without disclosure of the author. The Contractor agrees not to assert any moral rights with respect to the acts and omissions as described above.
In addition, a contractor agreement should require the contractor to obtain consents from its employees and a warranty or indemnity provision to safe guard its client if there are no consents.
The Contractor will obtain the necessary consents from its employees to any or all acts and omissions that may be taken to with respect to the moral rights in relation to works produced, created, or prepared by the employee in connection with the contract.
In the event that the Contractor fails to obtain the necessary consents, the Contractor will warrant to assist and undertake all necessary acts and to indemnify the employer against all claims against it arising from the omission.
In protecting the employer, or even the author, it is important to understand the nature of their transaction with contractors, since the acts and omissions and the description of works must be specific for contractors.
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Behan Legal advises and assists clients on these important issues. For an appointment, call 03 9646 0344