The Copyright, Designs and Patents Act 1988 (Section 80) introduced the moral right of the author of a copyright dramatic work or the director of a copyright film, not to have his work subjected to derogatory treatment. This right arises without the need of the author or director to assert it.
The addition and public broadcasting of a descriptive commentary, which significantly modifies the original programme audio, may be considered to be a ‘distortion or mutilation of the work’. It is therefore essential to obtain the written consent of the author or director to perform and broadcast the description, bearing in mind that this person (or people, in the case of joint authorship or directorship) may not necessarily be the copyright owner. This is because copyright can be assigned through normal commercial practices but moral rights cannot be transferred. Unless waived, they remain the property of the individual.
Where programmes or films are commissioned from a production company, it is suggested that a clause be included within the associated contract, through which the author or director waives his moral right to object to derogatory treatment of the work specifically for the case of audio description on television. Of course, the soundtrack of an audio described programme or film can become an entirely separate form of, purely audible, entertainment which may be distributed via audio storage media or broadcast on radio. The rights associated with commercial exploitation in this way are far more complex and must be clearly delineated from the application to television.
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