As promised, here’s more on the right of integrity under Copyright law. I start the discussion from a slightly dated article referred to in the first post in this series. Mira T Sundara Rajan discusses the right of integrity 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. The article discusses the dilemma faced by the Indian government when it realized the importance of the work of Tamil poet C Subramania Bharti and decided “to promote the publication, reading, and study of Bharati’s works….”
According to the article, Bharti’s poetry could not be published during his lifetime because of political unrest in India. After his death, the copyright in the works passed from his wife, to a publishing company and later to the government of Madras. The works of Bharti were made public in 1954.
In the period following 1954, Bharti’s works suffered a great deal of what can easily be termed as “mutilation” and “modification” of the nature that would, during the life of the poet, have brought him substantial disrepute. The article notes that:
“the expansion of public access to Bharati’s works has been matched by a decline in the quality of publication, from both technical and critical points of view.
The problems that have accumulated over the years in the publication of Bharati’s works include careless printing that incorporates both typographical and interpretative errors into the final texts; false attribution of the works of other poets to Bharati; inaccurate and inappropriate translations; misleading representations of the poet’s personality; and erroneous statements about his life and works…. In the area of translations, there is one instance in which a phrase meaning, “to walk with the majesty of a bull” is rendered into English by a hapless translator with imperfect knowledge of Tamil as, “to walk like a plough.”
The article discusses various provisions of copyright law, including moral rights and the right of integrity in search of a means to fulfill the dual goals of widespread dissemination without loss of the work’s integrity and quality and suggests that the pre-1994 policy in relation to protection of the right of integrity should not have been changed. Prior to 1994, the copyright act provided for perpetual protection of the right to integrity similar to the perpetual protection currently granted to the right of attribution. Further, the right of integrity was not tied to the reputation of the author. The article states:
“Moreover, given that interest in the works of important authors often develops long after their death, it seems unnecessarily restrictive to limit the protection of their moral rights to the duration of their economic rights. In the case of cultural works of outstanding importance, the perpetual protection of moral rights would provide a valuable means of supervising the treatment of these works to ensure that their integrity is maintained on an ongoing basis.”
The original section 57 did not connect changes to the work with the reputation of the author. As a result, it was possible for section 57 to have effects which considerably exceeded the level of protection in the Berne Convention. For example, the Indian provisions could protect a work of art from outright destruction, something that is generally believed to be beyond the scope of the Berne provisions on moral rights. The international rationale for limiting the integrity right in this way is that an author’s reputation cannot be damaged by the condition of a work that is no longer in existence. However, it is apparent that the destruction of a work could have negative consequences for an author’s reputation, at the very least, because it would reduce the overall size, and possibly quality, of his artistic corpus.“
It also suggests that a committee be set up to ensure continued integrity and authenticity of works that are of cultural and literary importance.
Right of Integrity and Defamation actions:
Section 57(1)(b) 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:
As noted above, while there are no limitations or conditions precedent to claiming one’s attribution rights, the right of integrity is available only till the expiration of the term of copyright in the work (and only if the such distortion/mutilation/modification is prejudicial to the author’s honour or reputation). Does this mean that an author does not have a right to prevent distortion of his work after the expiry of the term of copyright even if such distortion causes harm to the author’s reputation/honour? Can this section then be used as a defense, say in a defamation action by the author (where the author is claiming damages and maybe seeking an injunction) against a person who distorts his work such that it harms the author’s reputation? (For those who are wondering, it is true that a defamation action does not survive the death of the person defamed. However, not all copyright terms are “life of author + 60 years”, some copyright terms under Indian law are 50 or 60 years; for example performers rights.)
Consider for example, a case where “X” a famous musician and poet performs at Siri Fort auditorium (New Delhi) on Jan 1 2000. “Y,” a person in the audience records the performance and after the expiry of the 50 year performer’s right period, makes the work available to the public. Now presume that “Z”, for reasons best known to her, mutilates and distorts the recording in a manner that harms the reputation of X. In these facts and in the light of Section 57, does X not have a right to prevent this mutilation or claim damages (presuming X is still alive)? If X is deceased at the time of the mutilation, don’t his successors have a right to seek an injunction and claim damages?
It must be noted here that the Berne Convention does permit member countries to provide a longer and even a perpetual period of protection for moral rights. Are the 1994 amendments to the Copyright Act justified? What, if any, were the commercial or other considerations that propelled this amendment? Did the Indian parliament take into account the unequal bargaining power of most authors while making these amendments?
Another issue that the government should address is the moral rights of communities that preserve traditional cultural expressions – do communities have a right to prevent their works (arts, crafts, songs, dances etc.) from being mutilated or distorted? What would constitute mutilation/distortion? What would be the parameter to determine whether such mutilation/distortion has brought disrepute to the community?
There are no decided Indian cases that I am aware of dealing with these issues. However, we would be most interested in our readers comments on how this section would and should be interpreted or amended.