Moral rights FAQs

What is the right of attribution?

The right of attribution requires that the architect is credited as the creator of the material. If the creator has specified how they wish to be attributed, the attribution must take that form.

What is the right against false attribution?

The right against false attribution requires that the correct person is attributed as the creator of the material. For example, a building must not be attributed to someone other than the architect who designed it.

What is the right of integrity?

The right of integrity requires that the material is not subject to derogatory treatment. ‘Derogatory treatment’ doesn’t mean simply altering a work or treating it in a way the author doesn’t like — the treatment must actually prejudice or damage the architect’s honour or reputation as an architect.

What can be done if derogatory treatment occurs?

If a work has been treated in a manner that is derogatory, the architect can take legal action against the infringer and seek a number of different remedies. For example, the author may seek a formal apology from the infringer, or require that their name is no longer associated with the project.

Can I retain my moral rights in a building that has been altered by another architect?

Yes, and if the new work is attributed, that attribution must include attribution of you for the original part of the building.

Who has moral rights?

Only individual people can possess moral rights. Corporations and partnerships do not possess moral rights.

In relation to buildings, every person who contributes to the design of a project (as an author) has moral rights in the project. A person who merely provides ideas, is generally not an author. Authors may include employees, partners, directors, contract staff and each specialist consultant used on the project.

Can moral rights be transferred or sold?

No, however the holder of the moral rights can consent to specified acts that would otherwise be considered an infringement of their moral rights. For example, an architect can consent to not be attributed as the designer or to not being notified if the building is to be altered or demolished.

Who is obliged to honour moral rights?

Anyone who intends to reproduce a work of architecture, anyone who intends to alter, relocate or demolish a work of architecture, and all members of a team involved in a work of architecture.

Are moral rights affected if the copyright is transferred or sold to the client?

No, an architect retains the moral rights in the material they have created, even if the copyright belongs to someone else.

What happens if a project is sold?

The obligations in relation to the moral rights transfer to the new owner.

What is the difference between copyright and moral rights?

Copyright refers to the economic rights in relation to a work (eg the right to make copies of a work). It can be transferred or sold, including to a corporation. Moral rights are the reputational rights of an author in the work they create, and cannot be transferred.

Projects being designed by our practice are being attributed to the practice. Can we continue to do this?

Yes, however you will need to have each person working in the practice sign a consent to not be individually attributed and allow your practice to be attributed instead. You must also acquire consent from each specialist consultant, which sets out the manner in which they are to be attributed. Refer to Acumen note, Consent and moral rights infringement for details and a standard form of consent for people working in the practice and another for specialist consultants.

When should the consents be signed and where should they be kept?

Consents should form part of an employment contract or agreement or workplace agreement that is signed whenever a new employee starts work for the practice. Consents from existing employees could be an amendment to existing agreements.

Why do we need consents?

Without a consent from each holder of moral rights, you or your practice runs the risk of being exposed to a claim of infringement of a person's moral rights.

What about other consultants?

You should also obtain consents from all other consultants who work on a project. You should obtain the consent from the consultant's practice and they should, in turn, obtain consents from each person working in their practice, such as employees, directors etc.

What are the important terms that should be included in the consent from employees, directors etc?

The consent should include terms that:

• permit the work undertaken by the person giving the consent to be attributed to the practice, without necessarily naming the person
• permit the practice to negotiate with clients on the form that attribution of the project will take, on a project by project basis, with a condition that, as a minimum, the work will be attributed to the practice
• do not require the practice to notify the person if the practice is notified by an owner at some time in the future that a project or building is to be relocated, altered or demolished
• allow the practice to give any client or subsequent owner a copy of the consent.

What are the important terms that should be included in consent from specialist consultants?

The consent should include terms that:

• permit the work undertaken by a consultant to be attributed in an agreed form which may or may not include the consultant by name
• permit the architect to negotiate with its clients on the form the attribution will take on a project by project basis, with a condition that, as a minimum, the work will be attributed to the architectural practice
• do not require the architect to notify it if the architect is notified by an owner that the project is to be relocated, altered or demolished
• allow the architect to give any client or subsequent owner a copy of the consent.

What should you tell your clients?

You should advise your client that you have obtained consents in relation to the moral rights for their project from your employees, directors, etc, and that you will also obtain consents from the other consultants, when they are selected or appointed. You should stress that you have done this in order to protect the client. You may then be in a position to negotiate how the moral rights will be managed for the project.

How should the moral rights be managed?

The management of moral rights will vary from project to project. In the case of minor, insignificant or unimportant projects, you may only require attribution if the client publicises the project.

Significant projects may warrant:

• a plaque or sign on the building listing the project team
• a requirement that this list is used whenever the project is publicised or published
• a requirement that the practice is notified if the project is to be relocated, altered or demolished.

The following matters should be considered when negotiating with the client:

• Is a plaque or sign fixed to the project desirable, necessary or appropriate?
• Who should be identified on a plaque or sign (including but not limited to the architectural practice, the principal members of the design team, specialist consultants, individual specialist designers and others)?
• Should the same list be used if the project is publicised or published or is it sufficient to simply identify the architectural practice?

Is it desirable that the practice is notified if the owner decides to relocate, alter or demolish the project?

Generally, yes, but the decision should be made at the beginning of each project and form part of the client and architect agreement.

What should we do if a client asks us to sign a waiver of our moral rights?

You should refuse. Firstly, you can only consent to specified infringements of your moral rights – not waive your moral rights completely.

Secondly, the consent generally only applies to the person who signs it. Therefore, if the director of a practice signs a waiver on behalf of the practice, they are usually only consenting to infringements of their own rights.

Finally, moral rights have been granted to architects and others by this legislation in recognition of the value of the contribution that architects make to the built environment. It is unconscionable for any client to seek to eliminate these rights.

What should we do if the client asks us to sign an indemnity against all claims arising from moral rights?

You should refuse. The risks are probably indeterminable and would not therefore be covered by your professional-indemnity insurance, thus the client is unlikely to be afforded any meaningful protection.

What happens if a project of ours is published in a magazine, newspaper or similar publication and we are not attributed?

Write to the publisher demanding an apology or a reprint with appropriate attribution citing your moral rights under the the Copyright Act 1968 (Cth) (the Act), and send a copy of your letter and the piece from the publication to Practice Services for our research.

What should we do if we are notified that a project of our design is to be relocated, altered or demolished?

You have the choice of doing nothing or of requesting consultations to discuss the owner's proposals, which are required to be held in 'good faith' and to make a record of the project, before the proposed actions take place. However, you should inform the person who has notified you of your decision, as soon as possible as sensitive timeframes (usually 3 weeks from the date of notification) apply.

What should we do if we are engaged to alter or demolish an existing building?

Inform the client of their notification obligations regarding moral rights under the Act.

How can we ensure that we are notified when one of our buildings is to be altered or demolished?

One suggestion is that you produce a plaque or contact details sticker and display it in a prominent location in your building. A suggested format and wording appears below:

The Copyright Amendment [Moral Rights] Act 2000

Division 4 of Part IX of the Act deals with 'right of integrity' and in this context s195 AT [3A] is of significance to building owners and designers of buildings [Architects and others]. Effectively this section provides that a change in, or relocation, demolition or destruction of a building will not infringe the moral right of integrity or authorship in the building or in any plans or instructions used in construction of the building if the owner of the building takes certain steps.

First, the owner must make reasonable enquiries to discover the identity and location of the author or a person representing the author.

Secondly, if this is successful or the author is already known, the owner must give notice in writing and in accordance with the regulations, of the owner's intention to carry out the change, relocation, demolition or destruction and giving three weeks from the date of the notice, for the person to whom the notice was given, to seek access to the work to make a record of it or consult in good faith with the owner about the owner's proposals.

To assist in your obligation to locate the author/s it is suggested that you seek to contact:

Name:
Contact:
(Date) This contact advice was produced by the Australian Institute of Architects for use by its members. The contact details above may have changed. The Institute or local Board of Architects may have current details.

The Australian Copyright Council kindly contributed to the review of this note to ensure currency as at the date of publication and only in relation to Australian copyright law.