Moral Rights Under Copyright Laws: A Peep Into Policy – 2

As promised in my previous post, here’s more on moral rights and related policies. To start where I’d stopped, this week we are looking at an interesting survey (albeit a little dated) conducted by the Copyright Office in the US in the mid 90’s to review the waiver provision’s operation to “assure that artists were not coerced by unequal bargaining power to forfeit their moral rights.” The survey “[sought] comments on artists’ bargaining power relative to that of commercial users of artworks, on parties’ awareness of the VARA rights and their inclusion of waiver provisions in contracts …. [etc.]” In my view, the survey provides interesting insights into the policies that ought to inform the interpretation of Section 57 of the Indian Copyright Act.

US Law (VARA – Visual Artists Rights Act) permits waiver of moral rights by a signed, written agreement specifying the work and the precise uses to which a waiver applies. As we’d discussed in the previous post, Indian law is silent on waiver (so is the Berne Convention).

Some interesting findings of the survey, to which more than 1,000 persons from 47 different states in the US filed written responses (of which 955 were visual artists and most were grossing less that $10,000 annually from their artwork), were summarized, as follows (I am selectively quoting from the summary):

1. “About three-fourths of the respondents claimed awareness of moral rights, although many who elaborated in written comments stressed the need for more education of artists.”

The need to educate artists (as well as the general public) is even more in India. As Spicy IP has discussed in numerous posts, the dismal awareness about IPRs is clear from the way the media uses “patents,” “copyrights” and “trademarks” interchangeably! A conference I had attended in Bhopal while I was in law school (this was about 10 years ago now!) was aimed at educating artists. The response was amazing – and all attendees agreed that such educational seminars should be frequently conducted.

2. “Fewer than half knew that moral rights could be waived. Seven percent of those who answered the question said waiver clauses were routinely included in artists’ contracts, but nearly 40 percent said waiver clauses were part of contracts for commissioned works.”

In the Indian context, while many authors may not be aware of “moral rights” as a concept, they would probably expect that they have rights of attribution and rights of integrity, which cannot be taken away. It would be interesting to study contracts (written) between artists and contractors/publishers/broadcasters to determine whether they contain waiver provisions at all! Indeed, I suspect that there wouldn’t be too many waiver clauses – not least because there may be not be any awareness of these rights even amidst large publishing houses or contractors (I also wonder what % of lawyers and judges in India know of Section 57.)

A contract between a bunch of young architects and contractors that I reviewed recently did not contain any waiver clauses. However, the contract did list the parties whose names would be indicated on promotional or professional materials/publications relating to the project; this list did not include the names of the young architects! On being asked if their names could be included, the contractor said that the artists were free to include the drawings in their own portfolios and promotional materials but he could not guarantee that their names would appear on the promotional materials published by the contractors.

3. “Nearly one quarter of artists covered by VARA knew of artists who had been asked to waive their moral rights. Thirteen percent of artists covered by VARA said they had refused contracts because they included waivers and a similar number had insisted that a waiver clause be struck from a contract. These artists were generally those who earned more than $25,000 annually from their art or who were represented by an agent. More than half of those who had rejected a request for waiver said such rejection voided the deal.”

This, in my opinion, is one of the most important issues from a practical point of view. If waiver is permitted, wouldn’t every starving artist feel compelled to waive their rights if the only option would be not have their deal voided?

4. “Many believe that VARA does little (or nothing) to enhance the artist’s inferior bargaining position relative to the buyer” and “Some artists considered the waiver provisions to be an ‘escape clause’ for buyers to avoid honoring moral rights.”

The example of the young architects I quoted above is very real and possibly not uncommon. The most important thing for an upcoming designer, author, architect or artist is for his/her name to “get out there”. The question therefore is – can section 57 be read as requiring prominent display of the names of all artists/authors/architects that create or contribute to the creation of any work – at least in a manner similar to which the names of other (more famous?) authors/contributors is displayed?

Further, can a failure to so display the name of the author, (even in the absent an agreement specifically requiring this) be considered an infringement of moral rights under Section 57? Can this right be waived? Can it be waived orally?

(PS: If anyone is aware of bylaws in architecture that do not permit architects to advertise their names on building sites, please let me know!)

5. “Some decried the limitation of statutory protection against destruction of works to those of ‘recognized stature’ as being too narrow and incapable of definition.”

Indian law doesn’t expressly contain such a limitation. However, it is intriguing that the court in Amar Nath devoted numerous pages of its final decision to demonstrating the fame of the author and the work in question.

6. “One commentator suggested that waivers should be valid only where the purchaser demonstrates a “compelling reason” for requiring one. Most saw the need for the waiver provisions for works incorporated into buildings.“

This does seem fair. As one of our readers (Suchita) commented, it would be coercive to compel anyone to display a work (forever) in the guise of moral rights. Waiver of some moral rights in works displayed in buildings could therefore be necessary. However, the integrity of the work must still be maintained and the contract may provide for the return of the work to the author or other similar means of removal of the work without causing its damage or destruction.

7. “[Many] believed VARA should apply to print or broadcast reproductions of works, thus covering distortions in books, magazines and electronic media.“

In India, moral rights are not limited to visual arts. In this sense, the Indian law is much broader than the law in the US.

8. “However, it was also noted that waivers are rare because artists contracts were rarely written” and “Several comments remarked that the law was unenforceable, largely because enforcement is too costly”

I would be interested in knowing the trend in India – are artists contracts written? The comment on enforcement is very true in India. In addition to costs, there are also delays in the judicial process that act as a deterrent to litigation. (Readers will recall that the Amar Nath case was finally decided about 10 years after it was first filed!). In this scenario, I welcome suggestions from our readers on how artists and authors can enforce moral rights outside of the judicial system.

The above survey was done very soon after the VARA was enacted and the United States Copyright Office did not consider it appropriate to amend the provisions of VARA at the time. The Indian law on moral rights had been in existence now for quite some time. A survey similar to the one conducted more than a decade ago in the US, along with numerous educational seminars for artists and authors may be very appropriate at this time in India. If any of our readers have information on any such seminars, please do let us know.

I have been getting a number of emails with questions and comments relating to moral rights – this is encouraging! Please do keep the comments coming – I plan to post a compilation of comments and questions for everyone’s benefit. Next week – look out for more on Right of Integrity.