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Moral Rights under Copyright Laws: A Peep into Policy – Part 1


In the material world, laws are geared to protect the right to equitable remuneration. But life is beyond the material. It is temporal as well. Many of us believe in the soul. Moral Rights of the author are the soul of his works. The author has a right to preserve, protect and nurture his creations through his moral rights” (Justice Pradeep Nandrajog Amar Nath Singh v. Union of India (2005))

Section 57 of the Copyright Act, 1957 provides for what are termed as “Author’s Special Rights,” better known as “Moral Rights.” Founded on Article 6bis of the Berne Convention, moral rights have two key prongs (1) Right to claim authorship of the work (sometimes referred to as Rights of Attribution/Paternity Rights) and (2) Right against distortion, modification or mutilation of one’s work if such distortion or mutilation would be prejudicial to the author’s honour or reputation (or “Integrity Rights”).

A number of statutes and case law (in India and abroad) deal with moral rights. In the coming few weeks, I plan to devote at least 2-3 posts to “Author’s special rights” to discuss a number of issues relating to moral rights in India and internationally. As always, I welcome reader participation to enrich the debate and to bring out all perspectives. Lets warm up with the issue of Waiver, which is one of the most hotly discussed issues in relation to moral rights.

Relevant provisions of Indian Law

Section 57 reads in relevant part:

57. Author’s special rights. (1) Independently of the author’s copyright and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right-

(a) to claim authorship of the work; and

(b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation:

Is Waiver Possible under India Law?

A case decided not too long ago by the Delhi High Court, Amar Nath Seghal v. Union of India (2002(2)ARBLR130(Delhi); 2005(30)PTC253(Del)) discusses the issue of moral rights in substantial detail. In this case, the plaintiff/author assigned his copyright in a bronze mural, to the Union of India. The mural was placed in Vigyan Bhavan, but was later pulled down and dumped. The author, Amar Nath Seghal, sued for violation of his moral rights.

The case was filed in the early 90’s and an interim injunction was passed in favour of the Plaintiff. In response, the defendants made an application under the Arbitration Act, 1940 seeking stay of proceedings in the suit claiming that the dispute ought to be referred to arbitration in the light of a term in the assignment requiring arbitration of all disputes.

The defendants further argued that “the plaintiff had assigned his copyrights to the defendants and having purchased the same, the defendants are under no fetters while dealing with the mural in question.

The interim application was decided in 2002 and the case itself was finally decided in 2005. The court dismissed the claim under the Arbitration Act and further observed: “These [moral] rights are independent of the author’s copyright. They exist even after the assignment of the copyright, either wholly or partially.” The court quoted from Smt. Mannu Bhandari v. Kala Vikash Pictures Pvt. Ltd. and Anr. (1986)

Section 57 confers additional rights on the author of a literary work as compared to the owner of a general copyright. The special protection of the intellectual property is emphasised by the fact that the remedies of a restraint order or damages can be claimed “even after the assignment either wholly or partially of the said copyright..” Section 57 thus clearly overrides the terms of the Contract of assignment of the copyright. To put it differently, the contract of assignment would be read subject to the provisions of Section 57 and the terms of contract cannot negate the special rights and remedies guaranteed by Section 57. The Contract of Assignment will have to be so construed as to be consistent with Section 57. The assignee of a copyright cannot claim any rights or immunities based on the contract which are inconsistent with the provisions of Section 57.

From the above wording, it could be argued that “moral rights” are akin to the Fundamental Rights guaranteed under the Constitution, in that they cannot be waived. Interestingly, Article 27 (2) of the Universal Declaration of Human Rights provides:

(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Under the case Vishaka v. State of Rajasthan (1996), the Supreme Court held that provisions of international conventions can be read into the Constitution where there is no contrary domestic law in the field.(This case was also quoted by the Delhi High Court in Amar Nath – albeit in a different context – more on this soon to come!).

In the United States on the other hand, the Visual Artists Rights Act (VARA)of 1990, expressly provides for waiver of moral rights, but only by a signed, written agreement specifying the work and the precise uses to which a waiver applies. See here.

According to at least two authors, “Indian law would probably permit waiver of moral rights if it is in writing and meets the “reasonableness” standard. For example, a waiver is more likely to be upheld if it is revocable and applies to specific alterations or modifications of copyrighted work rather than an irrevocable blanket waiver, particularly if the author had no bargaining power when the waiver is granted.” See Sonia Baldia Intellectual Property in Global Sourcing: The Art of Transfer” 38 Georgetown Journal of International Law 499, Spring 2007 (Footnote 79) and Mira T Sundara Rajan Moral Rights in the Public Domain: Copyright Matters in the Works of Indian National Poet C Subramania Bharati 2001 SING. J. LEGAL STUD. 161, 175 (2001)

This raises a number of other issues – particularly, why permit (or not permit) waiver, and how does a provision of law such as under the VARA in the US affect the rights of young upcoming artists/authors? These issues and many others will be discussed in Part 2. In the mean time, we look forward to your questions and comments!

7 comments.

  1. AvatarSneha

    Dear Mrinalini,

    I agree with the two authors you have quoted and would like to add that with the “reasonablenss” test, maybe something simlar to the doctrine of basic structure/feature as applicable to the Constitution of India may be applied to copyright law thereby ensuring that a person may benefit by an author waiving his moral rights provided the ageement waiving such a right does not render ineffective the basic purpose with which this provision was legislated i.e. to protect the author’s honour or reputation.

    However, I do not understand the example that Sonia Baldia gives, I quote – a waiver is more likely to be upheld if it is revocable and applies to specific alterations or modifications of copyrighted work rather than an irrevocable blanket waiver, particularly if the author had no bargaining power when the waiver is granted. If a waiver is revocable, then what is the purpose of such a waiver? Will not the whole concept of a waiver be negated by such a revocable waiver?

    Sneha

    Reply
  2. AvatarMrinalini Kochupillai

    Dear Sneha

    Absolutely – however, you probably are referring to the principles of statutory interpretation that allow courts to look at legislative intent when the literal language is unclear. “Basic structure” is a term that is usually used while determining whether an amendment to the Constitution is in keeping with the key principles of the Constitution which include the federal form of the Constitution, parliamentary form of government, fundamental rights etc.

    Your comment on revocable waiver does seem appropriate. However, there may be situations where the author waives his moral rights for the time being (which in my opinion is not possible under Indian Copyright laws at least in the light of the Amar Nath Decision) but retains his right to recall the waiver if the waiver is being misused. This would negate the concept to an extent, but would probably protect the rights of an author better than a blanket denial of the ability to waive such rights.

    Reply
  3. AvatarMrinalini Kochupillai

    I have been getting a number of emails with comments on the “moral rights” post – it is exciting to see the interest in the topic. In addition to posting the comments here, I plan to compile the comments for a separate post. So please do keep the comments coming!

    On December 7 (sorry for the late post!), Suchita wrote
    “I am a fourth year student of NLSIU, Bangalore, in response to your email on Moral rights under Copyright Law, I would like to add that unlike the position of law in India, in America section 106 A of the American Copyright Act provides for waiver of moral rights. It is also pertinent to note that the concept of moral rights is restricted by the Visual Artists Rights Act (VARA)of 1990 and the Copyright Act to Visual artists only. thus, the scope of moral rights in America is far more restricted.

    Also, according to me the decision in Amar Nath Seghal’s case is slightly skewed.. the decision also spoke about protection of cultural heritage of the country which could be found in the mural. Hence, the authority of moral rights as stemming from that case is slightly problematic because the judges also bring in the unrelated and irrelevant cultural heritage aspect to justify the right of display.. (how that comes into moral rights is another question altogether,as in to compel someone to display your work under the guise of moral right is down right coercion.)

    Lastly, I was wondering if something like moral rights or similar to the concept could be used to protect traditional cultural expressions. In the sense that recognize the moral authority of the community over the traditional work and under this regime prevent any unauthorized exploitation of the same.”

    Reply
  4. AvatarMrinalini Kochupillai

    Suchita is completely right about the US laws on moral rights being much more restricted. The scope was considered as enlarged to an extent because of certain decisions under the US Lanham Act but this did not last too long (more details in the upcoming posts. In the mean time, if you would like to do some more reading on this – read the Dastar and Monty Python cases.)

    As for your comment on cultural heritage and right of display, one certainly cannot compel the display of one’s work under the guise of “moral rights”. However, once a work is assigned and displayed in a prominent public place, a removal from such place, that too in an un-respectful manner that mutilates the work is certainly a violation of one’s moral right.

    In my view, the court in Amar Nath discussed the cultural heritage of the country in relation to the mural and having established the importance of the work and the author’s international reputation, went ahead to give the order that it did. Had the fame of the author and the work not been established, there would be no question at all of reinstating the work. In fact, the question therefore is, would the court have upheld the moral rights of an author who was not as reputed as Amar Nath? This is an issue I will discuss in the upcoming posts.

    Reply
  5. AvatarMrinalini Kochupillai

    On December 6, Ritesh Singh wrote:

    “I read your blog on Sec 57 and i thank you for enlighting me on its provision. However, I think that Sec 57 does not give complete protection to moral rights of authors. My concern here is on the false attribution of authorship where pirate [might] try to piggy ride on the name and fame of famous authors and their famous title[s].

    What I am trying to say is that in india there is no protection for false attribution of authorship whereas it is in UK and USA.”

    Reply
  6. AvatarMrinalini Kochupillai

    Hi Ritesh

    You are right that there is no express provision under Section 57 allowing authors to disclaim authorship. However, according to many, the right to claim authorship also includes the right to disclaim authorship. If not directly under Section 57, the author can sue for defamation if such false attribution tarnishes his/her reputation.

    However, in most cases, the right to sue for defamation does not exist after the death of the author. In case of copyrights, it may be appropriate to permit the rights of attribution and integrity to survive the life of the author, or even the term of copyrights in some cases. A good case for this has been made by Mira T Sundara Rajan in her article “Moral Rights in the Public Domain: Copyright Matters in the Works of Indian National Poet C Subramania Bharati” 2001 SING. J. LEGAL STUD. 161, 175.

    Reply

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