Written by Sarah Zivoin.
To Waive or Not to Waive Moral Rights
A creator of an original work acquires the right to protect the integrity of the work as well as the right to be associated with it either by name or pseudonym or to remain anonymous. These rights are considered “moral rights” of the creator. Moral rights cannot be transferred, whether by licence or assignment, even on the sale of the copyright of a work. They are personal to the creator and live with the creator until they eventually pass on to the beneficiary of the creator’s moral rights upon the creator’s death, and subsequently pass to that beneficiary’s beneficiary of the creator’s moral rights, and so on. After death, a creator’s moral rights continue to exist and may be exercised by those beneficiaries of the creator’s moral rights for 70 years after the end of the calendar year of the creator’s passing. There are, however, situations in which moral rights may not be exercised. According to Canada’s Copyright Act, moral rights may be “waived” in whole or in part by either the creator of the work or a beneficiary of the creator’s moral rights.
What is a waiver and how is it granted?
A waiver is a renunciation or a surrender of a right, privilege or claim. When a creator waives their moral rights, they can do so in writing, or orally or impliedly in some instances, given the nature of the work. A waiver need not be for all moral rights with respect to a work. For example, the creator may waive their right to have their name associated with the work for a particular purpose or project while still maintaining their right to ensure the integrity of the work – at least to the extent that there is, in the language of the Copyright Act, no prejudice to their honour or reputation. The waiver itself should be in writing for certainty, but need not be complicated. It could simply be stated that the creator waives their moral rights in the work “in favour of” a named person or organization for a purpose or project. However, a creator should always be cautious when deciding whether to waive moral rights as once they grant such a waiver, they cannot unilaterally reassert those particular waived moral rights.
Why is a waiver of moral rights important to your employer or purchaser of your work?
As mentioned, moral rights in a work cannot be transferred, even by sale of a work or if created by an employed creator. For example, in an instance where you sell your painting and copyright to your painting, the purchaser of your painting may “own” your painting but, if you did not waive your moral rights in the painting, you still hold moral rights in it. Similarly, in another instance, if you upload a photograph you’ve taken for your employer to your employer’s website as part of your duties as an employee but without waiving your moral rights in the photograph, you still hold moral rights in the photograph. As moral rights restrict how a purchaser or an employer may wish to use a work that they own, it is common commercial practice for creators to be asked to waive their moral rights in their work so it can be changed without their permission. Depending upon the circumstances, you may be able to negotiate a higher price for your work in exchange for waiving your moral rights in it. You may also be able to negotiate something less than a complete waiver. For example, in a written agreement you might allow changes to be made to your work but retain the right to be credited as the creator or a co-creator or you might decide to remove your credit or negotiate the right to keep the right to do so subsequently.
This article is informational and not intended as a substitute for legal advice.
