General waivers of moral rights, as distinct from moral rights consents, are unlikely to be enforceable in Australia following a recent Federal Court decision. Organisations should carefully consider the language of their employment and contractor agreements to ensure that any moral rights provisions satisfy Australian requirements.
Moral rights are rights given to individual human authors of copyright works under the Copyright Act 1968 (Cth). They are personal to the author, and aim to protect their relationship to their works, such as their right to attribution. Whilst moral rights provide important protection for an individual author, they can present difficulties for organisations who require the use of an author’s work. For example, a fashion brand may wish to make use of artwork, or a logo, produced by one of their employees or contractors without having to credit that person as the author each time they do so.
The Copyright Act provides for authors to consent to acts or omissions which might otherwise infringe their moral rights. Organisations often include a moral rights clause in their standard employment and contractor agreements which provides for the organisation to use any works created by the employee or contractor as they see fit. In some cases, these clauses are drafted as a general ‘waiver’ of the employee’s moral rights, rather than as a ‘consent’ given by the employee to specific acts or omissions.
In McCallum v Projector Films Pty Ltd (Liability Hearing) [2026] FCA 173, the applicant, Stephen McCallum, brought proceedings against Projector Films Pty Ltd and David Anthony Ngo for infringement of his moral rights as the principal director of the documentary film “Never Get Busted!”. The respondents claimed that McCallum had waived his moral rights under his Director’s Agreement with Projector Films Pty Ltd. The Court ultimately held that the relevant clause, which provided for a general waiver of moral rights between the parties, was inconsistent with the Copyright Act, and therefore unenforceable.
Organisations should carefully consider any moral right consent clauses in their employee and contractor agreements to ensure that they do not amount to general waivers of moral rights which are unlikely to be enforceable under Australian law.
Our team of commercial IP lawyers are experienced in balancing competing commercial interests while ensuring compliance with the law and best practice and can assist with information or support in relation to moral rights consent clauses.
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