The right is the most well known of all the moral rights.

·         provides the creators of certain types of works with the right to be identified as the author of those works.

·         This right cannot be assigned but can be waived.

Subsistence of the right of attribution

• in order for this right, it is necessary to do 2 things
  • 1) to show that the work in question is the type of work that the right applies to
    • Is only granted to the creators in relation to LDMA and films.
      • In LDMA the right is granted to the author of the work.
      • In films, the right of attribution is granted to the director.
    • A number of types of works do not give rise to a right of attribution.
      • Not in newspaper, magazine, periodical or an encyclopedia or similar works. (s 79 (6)
        • The need to name the author of a work would interfere with the prompt delivery of news.
      • Does not apply to computer programs, computer generated works, typefaces etc.
  • 2) the right of attribution has to be asserted. (s 78 (1)
    • Even if it has been asserted, an action for infringement of the attribution right the courts take into the account any delay in asserting the right when considering remedies. S 78(5)
      • This is in contrast to art 5 of the berne convention where the author’s enjoyment and exercise of these rights shall nott be subject to any formality.
    • The right can be asserted in one of 2 ways
      • 1) when copyright in a work is assigned, the author or director includes a statement that asserts their right to be identified.
        • If this was chosen, it binds the assignee and anyone claiming through them, whether or not they have notice of the assertion.
      • 2) the right may be asserted by an instrument in writing signed by the author or director.
        • The assertion only binds those who have notice of the assertion.
      • The former is more effective mode of assertion. There seems to be no reason why an author or director should not use both methods or make a number of assertions.
    • There are 2 more ways to assert in artistic works:
      • 1) the right will have been asserted if the artist in idenfitied on the original, copy, frame mount or other attachment when the artist or first owner of the copyright parts wit hthe possession of the original. (78 (3)
        • Binds anyone into whose hands the original or copy comes, whether or not the identification is still present or visible. (78(4)(c)
        • If the work is exhibited in public, the artist should be named.
      • 2) the right may be asserted by the inclusion of a specific statement to that effect in a licence tht permits copies of the work to be made.
        • Binds the licensee and anyone into whose hands a copy made in pursuance of the licenese comes, whether or not they notice the assertion.

Infringement

For the right to be infringed, it has to show that:

1)      the author has not been properly identified

2)      the work has been dealt with in circumstances where attribution is required and

3)      none of the defences or exceptions applies

The author has not been properly identified

• in order to be properly identified, the name of the author must appear in or on each copy of the work in a clear and reasonable prominent manner (77(7)
• where it is not appropriate for the name of the author to appear on each copy of the work, the name must appear in a manner which is likely to bring identity to the notice of a person acquiring a copy of the work.
• As long as the name becomes apparent during its use, there is no need for the author to be named in a way which can be ascertained prior to acquisition of the copy
  • Author of a book is named inside the book.
• Performance, exhibition, showing, etc, the author has the right to be identified in a manner likely to bring their identity to the attention of a person seeing or hearing the communication.
• If asserting the right, the author specifies something different to be used, then that should be adopted.
  • Otherwise, any reasonable form of identification may be used.

Circumstances where attribution is required

• it only arises when the work is dealt within certain ways.
  • Even though it varies depending on the type of work, in all cases the right applies whether the act Is carried out in relation to the whole work or a substantial part.

• Literary or dramatic work
  • Has the right to be identified whenever copies of the work are published commercially or the work is performed in public or broadcast. (77 (7) (a)
    • The author of a play has the right to be named when copies of the play are sold in bookshops or the play is performed in public
    • Writer of a filmscrit has the right to be named when videos are sold to the public or the film is broadcast on tv.
    • This also applies to adaptations of the work, so the author of a French novel has he right to be named on copies of an English translation.

• Songwriters are treated differently
  • The author of the music or lyrics of a song has the right to be named on commercial publication of copies of the song. (song books, sound recordings, films, etc)
  • The right attribution given to the author of a song does not extend to the circumstances where the song is performed in public or broadcast. (77 (2), (3)
    • This exception is dubbed the DJ exception.

• Artistic work
  • The artist has the right to be identified where the work is published commercially, exhibited in public or where a visual image of it is broadcast or included in a cable transmission.
  • If an artwork is filmed, the artist should be identified when copies of the film are issued to the public or if the film is shown in public.
  • It also specifies that the creator of a building, sculpture or work of artistic craftsmanship should be named where copies of a graphic work representing it or a photograph of it are issued to the public.
  • The author of a work of architecture has the right to be identified on the building as constructed.

• Film
  • The director has the right to be identified whenever the film is publicly shown, broadcast or included in a cable service. The director also has the right to be named on copies of the film but not (it seems) where the films are rented.

Exceptions

• the right of attribution is constrained by section 79(3)
  • it provides that if the employer or copyright owner authorized reproduction of the work, then the right does not apply.
  • The right will not be infringed where the act in question amounts to fair dealing for the purpose of reporting current events by means of a sound recording, broadcast or cable programme.
    • S 79 (4) (a) it requires sufficient acknowledgement in cases of fair dealing for reporting current events by other means such as in news paper.
    • Where acknowledgement is required but not provided are likely to be infringements of both the copyright and the author’s moral right
  • The right is not infringed where the work is incidentally included in an artistic work, sound recording, film, broadcast or cable programme.
  • Exception where the work is used for the purposes of examinations, parliamentary or judicial proceedings and government inquiries.

Waiver

• an author can waive his or her right of attribution. (87 (2)
  • waiver of the right, is relevant for activities such as ‘ghost writing’