GUIDANCE ON RIGHT OF PUB-LIC RELEASE AND AUTHOR'S MORAL RIGHTS

01/01/2009

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Owners of artistic works such as sculptures and paintings often have doubts as to whether they may publicly release the artworks that they own.  In a recent interpretation, the Intellectual Property Office stated that the moral rights enjoyed under the Copyright Act by the author of a work are exclusive rights vested in the author himself, and cannot be transferred or inherited.  The right of public release is one of the moral rights, and only the author can decide whether to reveal the work's content to the public.  But the author merely has the right of first public release of his work: after a work has been publicly released for the first time by its author, the author cannot subsequently assert the right of public release against another party that publicly releases the work for a second time.  However, in order to strike a reasonable balance among the rights to use works, the Act also provides that where an owner of economic rights in a work, a licensee, or the owner of the original or a reproduction of a work exercises its rights over the work, it is to be presumed or deemed that the author consents to the work's public release.

If the donor of an artistic artifact consents to transfer, together with the artifact, copyright and all other rights in the artifact to a cultural or educational organization, then in terms of the moral rights of the author, does such consent in itself amount to an express contractual provision that the donee has the right to publicly release the work? Or can it be presumed or deemed that the author consents to the public release of the work? These issues have been a frequent source of dispute.

The IPO's interpretation noted that because the moral rights of the author cannot be transferred, then even if the donor of an artifact expressly states in writing that copyright and all other rights over the artifact are to be transferred together with the artifact, this does not include transfer of the right of public release, and the author cannot be said to have consented to the work's public release.  Nevertheless, if the donor has not consented not to enforce its moral rights as an author against the donee, and the work has not previously been publicly released, under the provisions of the Copyright Act, it should be presumed that the author consents to its public release.

In other words, unless there is evidence that the author refuses such consent, the donee may publicly release the work concerned, and in the case of an artistic or photographic work, may publicly release it by exhibition.  But if the work has previously been publicly released, then it is a released work, and the question of whether the author consents to its public release does not arise.