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It is not uncommon for a client to ask an architect or firm to sign a general ‘waiver’ of moral rights (eg, ‘I agree to waive all moral rights in relation to Project X’). An architect who is requested to sign such a waiver should refuse. For further information about moral rights, see Acumen note Moral rights.
Waiver
The reasons to refuse are twofold. The first is simple – you cannot simply waive or give up the rights granted to you under the Copyright Act 1968 (Cth) (the Act). Any contractual clause that asks you to do so will be invalid.
The second is due to the nature of moral rights. Moral rights are personal to the author, cannot be assigned, and can only be possessed by human individuals, not corporations or partnerships. This means that an architect is only able to sign agreements in relation to moral rights they personally hold—they cannot sign agreements in relation to other people’s moral rights unless they have been expressly given authorisation to do so.
If a client requests you to sign a waiver of moral rights, you should advise them that you refuse to do so. Instead, you should suggest that they enter into an agreement with your practice, such as the Client Architect Agreement (CAA2019), and to review the terms outlined in the agreement with an independent lawyer before they sign it.
Indemnity
Often a client will seek to have you sign an indemnity document in which you or your practice, indemnifies the client against any claim of infringement that arises as a result of the work you undertake for them. Such an indemnity clause could be integrated into a proposed waiver as described above in an attempt to resolve the uncertainties of a waiver.
Again you should refuse to sign. This is because indemnities of this type are probably uninsurable. You should check with your professional indemnity insurer to establish the risks and the extent to which your policy would apply to this form of indemnity.
Agreements with clients
You should help your client understand and manage the moral rights that will be created when you undertake a commission for them. This includes not just your own moral rights, but the moral rights of people who are assisting with the project. Refer to Acumen note What are an architect’s moral rights?
If you have consent agreements with your staff and the other consultants involved in a project, you are then able to enter into an agreement with your client on their behalf. The terms of the agreement should provide your client with all the protection that they will need, while at the same time ensuring that moral rights are also protected.
Disclaimer
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