Introduction
User-generated content (UGC) is a powerful tool for not-for-profit organisations (NFPs), helping to foster community engagement through materials like social media posts, images, and videos. As NFPs increasingly collect and use this content for activities ranging from fundraising to reporting, it is essential to navigate the associated legal considerations within the Australian legal framework.
This guide provides essential legal guidance on moral rights, which protect a creator’s personal connection to their work. For NFPs, understanding how to comply with these rights is crucial for managing legal risks with a strong ACNC risk register, maintaining positive relationships with content creators like volunteers and employees, and ensuring overall compliance when using UGC.
Understanding Moral Rights Within the Australian Legal Framework
The Right of Attribution & Against False Attribution
Under the Australian legal framework, creators of copyright material, a key form of intellectual property, hold personal moral rights that are separate from copyright ownership. These rights ensure that individuals receive proper recognition for their creative efforts and are protected from false claims of authorship.
The legal considerations for NFPs include two key rights related to attribution:
| Right | Description |
|---|---|
| The Right of Attribution | A creator has the right to be identified as the author of a work or the performer in a performance. This credit must be provided in a clear and reasonably prominent way. |
| The Right Against False Attribution | A creator is protected from having their work incorrectly attributed to someone else, ensuring another person cannot be falsely named as the creator of the material. |
The Right of Integrity & Protection from Derogatory Treatment
Creators also have the right of integrity over their work, which protects it from derogatory treatment. This right allows a creator to object to any use of their work that could be prejudicial to their honour or reputation.
Derogatory treatment is defined under the Copyright Act 1968 (Cth) and involves actions such as:
- The distortion, mutilation, or material alteration of the work.
- Any other treatment of the work that is damaging to the creator’s reputation.
To illustrate, consider a scenario where an author has assigned the copyright in their novel to a publisher. The author’s moral rights may prevent the publisher from releasing the book with an inappropriate cover or in an abridged version that the author finds objectionable.
Request a Free Consultation with one of our experienced Lawyers today.
Get Your Free Initial Consultation
Why Moral Rights are Important for Your NFP
Distinguishing Moral Rights from Copyright Ownership
Moral rights are personal rights that belong to the individual creator of a work and are separate from copyright. This distinction is crucial for NFPs to understand for several reasons:
- While copyright is an economic right that can be owned by an organisation, moral rights always remain with the author, performer, or director.
- These personal rights cannot be sold, transferred, or given away under any circumstances.
- Even when your NFP owns the copyright to a work (such as a report created by an employee), the creator still retains their moral rights.
This legal separation means your organisation may have the right to reproduce and publish content, but must still respect the creator’s personal connection to their work.
Respecting Volunteers, Employees & Other Content Creators
It is essential for NFPs to respect the moral rights of all contributors, including contractors, while understanding the legal compliance issues involved in distinguishing between volunteers or employees. These individuals are crucial to the success of many organisations, and maintaining positive relationships with them requires acknowledging their creative contributions.
When working with content creators, remember these important points:
- Even when a volunteer or contractor signs an agreement transferring copyright ownership to your NFP, their moral rights remain with them.
- Your organisation must still comply with obligations such as properly attributing the creator for their work.
- The best practice is to establish written agreements that secure consent for specific uses of material that might otherwise infringe on these personal rights.
By respecting moral rights, your NFP not only fulfils legal obligations but also demonstrates respect for the individuals whose creative work supports your mission.
Key Legal Risks & Considerations for NFPs
Infringing Moral Rights Through Content Alteration
When using UGC, one of the key legal risks for an Australian NFP is infringing a creator’s moral rights through alteration. Modifying content without permission in a way that harms the creator’s reputation can be considered ‘derogatory treatment’ under the Copyright Act 1968 (Cth).
Derogatory treatment includes:
- The distortion of a work
- Mutilation of content
- Material alteration that is prejudicial to the author’s honour or reputation
For example, publishing a report in an abridged form or using a photograph with an inappropriate caption could be seen as derogatory if the creator finds it objectionable and damaging to their professional standing. To comply with legal obligations, it is crucial to obtain permission before making changes that alter the original meaning or presentation of a work.
Understanding the Legal Consequences of Infringement
Failure to respect a creator’s moral rights can lead to significant legal consequences. An individual whose moral rights have been infringed can take legal action, often a form of commercial litigation, against the NFP, and a court may order several remedies to address the non-compliance.
The potential remedies for moral rights infringement highlight the importance of these legal considerations and include:
| Remedy | Purpose / Description |
|---|---|
| A court order | To stop the infringing activity. |
| Payment of damages | To compensate the creator for any loss or harm suffered. |
| A public apology | To acknowledge the infringement and restore the creator’s reputation. |
100% Obligation-Free
Speak to one of our Experienced Lawyers Today
How to Implement Practical Compliance Steps
Securing Written Consents from Your Content Creators
To effectively manage legal considerations and comply with the Australian legal framework, your organisation should secure written consent from the creators of any copyright material it uses. This consent allows your NFP to use the content in ways that might otherwise infringe a creator’s moral rights, such as amending a report or not attributing an image in a specific context.
Without securing this consent, your organisation faces legal risks and may be unable to publish or alter the material to meet its operational needs. It is best practice to include these consent clauses within formal agreements.
This is a crucial compliance step when you collect content from various sources, including:
| Creator Type | Compliance Action / Consideration |
|---|---|
| Employees | Employment contracts should specify that the organisation has consent to use works created in the course of employment in ways that may affect moral rights. |
| Volunteers and Contractors | Agreements should contain a clear consent clause. Even if copyright is assigned to the NFP, the creator retains their moral rights, making this consent essential. |
Establishing Clear Terms & Conditions for User-Generated Content
When your NFP invites the public to submit UGC, it is vital to implement clear and comprehensive terms and conditions. These terms set out the rules for how content is submitted, used, and moderated, helping to prevent legal issues and ensure compliance.
Well-drafted terms and conditions, a core component of commercial and business law, are a fundamental tool for managing legal risks associated with UGC. Your terms and conditions should clearly address several key issues, including:
| T&C Component | Description |
|---|---|
| Content Licence | The scope of the licence the user grants your NFP to use their content. |
| Usage Limitations | Any restrictions on how and where the content can be used, including geographical territories. |
| Ownership and Obligations | A clear statement on who owns the content and the responsibilities of both your organisation and the content creator. |
Additionally, if your NFP will collect personal information as part of the submission process, you should also establish a clear privacy policy to address important privacy considerations.
100% Obligation-Free
Speak to one of our Experienced Lawyers Today
Conclusion
For Australian NFPs using UGC, understanding and respecting a creator’s moral rights—which are distinct from copyright—is a critical part of legal compliance. Proactively managing these legal considerations by securing written consents and implementing clear policies helps mitigate legal risks and maintain positive relationships with content creators.
Handling the complexities of moral rights requires careful planning and expert guidance. For specialised legal advice tailored to the unique needs of your NFP, contact the expert not-for-profit lawyers at LawBridge today to ensure your organisation can confidently and ethically use UGC.
