CDPA 1988 s.78 – Requirement that right be asserted

(1)A person does not infringe the right conferred by section 77 (right to be identified as author or director) by doing any of the acts mentioned in that section unless the right has been asserted in accordance with the following provisions so as to bind him in relation to that act.

(2)The right may be asserted generally, or in relation to any specified act or description of acts—

(a)on an assignment of copyright in the work, by including in the instrument effecting the assignment a statement that the author or director asserts in relation to that work his right to be identified, or

(b)by instrument in writing signed by the author or director.

(3)The right may also be asserted in relation to the public exhibition of an artistic work—

(a)by securing that when the author or other first owner of copyright parts with possession of the original, or of a copy made by him or under his direction or control, the author is identified on the original or copy, or on a frame, mount or other thing to which it is attached, or

(b)by including in a licence by which the author or other first owner of copyright authorises the making of copies of the work a statement signed by or on behalf of the person granting the licence that the author asserts his right to be identified in the event of the public exhibition of a copy made in pursuance of the licence.

(4)The persons bound by an assertion of the right under subsection (2) or (3) are—

(a)in the case of an assertion under subsection (2)(a), the assignee and anyone claiming through him, whether or not he has notice of the assertion;

(b)in the case of an assertion under subsection (2)(b), anyone to whose notice the assertion is brought;

(c)in the case of an assertion under subsection (3)(a), anyone into whose hands that original or copy comes, whether or not the identification is still present or visible;

(d)in the case of an assertion under subsection (3)(b), the licensee and anyone into whose hands a copy made in pursuance of the licence comes, whether or not he has notice of the assertion.

(5)In an action for infringement of the right the court shall, in considering remedies, take into account any delay in asserting the right.

Definitions used in section 78 9

author

(1) In this Part “author”, in relation to a work, means the person who creates it.

Defined in s.9(1) · see it in the full Act

“author”, in relation to a design, has the meaning given by section 2(3) and (4);

Defined in Sch.4 para.38 · see it in the full Act

(3) In this Act the “author” of a design means the person who creates it.

Defined in Sch.4 para.38 · see it in the full Act

written

“writing” includes any form of notation or code, whether by hand or otherwise and regardless of the method by which, or medium in or on which, it is recorded, and “written” shall be construed accordingly

Defined in s.178 · see it in the full Act

writing

Defined in s.178 · see it in the full Act

artistic work

(1) In this Part “artistic work” means—

(a)a graphic work, photograph, sculpture or collage, irrespective of artistic quality,

(b)a work of architecture being a building or a model for a building, or

(c)a work of artistic craftsmanship.

Defined in s.4(1) · see it in the full Act

“artistic work” has the same meaning as in Part I of the Copyright, Designs and Patents Act 1988 ;

Defined in Sch.4 para.38 · see it in the full Act

copy

(1)The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies shall be construed as follows.

Defined in s.17(1) · see it in the full Act

made

(2)Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise; and references in this Part to the time at which such a work is made are to the time at which it is so recorded.

Defined in s.3(2) · see it in the full Act

on behalf of

(6) References in this Part to anything being done “on behalf of” an educational establishment are to its being done for the purposes of that establishment by any person.

Defined in s.174(6) · see it in the full Act

assignee

“assignee” includes the personal representative of a deceased assignee, and references to the assignee of any person include references to the assignee of the personal representative or assignee of that person;

Defined in Sch.4 para.38 · see it in the full Act

the court

27 (1) In this Act “the court” means—

(a)in England and Wales, the High Court or any patents county court having jurisdiction by virtue of an order under section 287 of the Copyright, Designs and Patents Act 1988,

(b)in Scotland, the Court of Session, and

(c)in Northern Ireland, the High Court.

Defined in Sch.4 para.38 · see it in the full Act

“the court” shall be construed in accordance with section 27 of this Act ;

Defined in Sch.4 para.38 · see it in the full Act

Cases considering section 78 3

Al-Hasani v Nettler & Ors

[2019] EWHC 640 (Ch) · 21 March 2019Limits

Limits infringement of the section 77 right by requiring assertion of the right in the prescribed manner. The pleading contained no allegation satisfying this requirement (see paras [88], [93.10]).

Sawkins v Hyperion Records Ltd

[2004] EWHC 1530 (Ch) · 1 July 2004

Applies the assertion requirement for the right to be identified, treating the claimant’s letter as specifying the required form of identification. (see para [84])

Shantell Martin & Anor v Bodegas San Huberto SA & Ors

[2025] EWHC 1827 (IPEC) · 24 July 2025

Applies the assertion requirement by treating the signature on the Work and Ms Martin’s communication of authorship as sufficient assertion for the proposed section 77 claim. The conclusion was provisional because the moral-rights issue was not within the List of Issues (see paras [113]-[116]).

What each judgment says about section 78 is in the case-law panel in the full Act.