Copyright

Moral Rights Under Copyright Laws: A Peep Into Policy – 3


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According to the article, Bharti’s poetry could not be published during his lifetime because of political unrest in India.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.

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7 comments.

  1. AvatarSumathi Chandrashekaran

    Mrinalini: fascinating post, as ever! This piece goaded me into some amateur internet research on moral rights generally. Some observations, as a result: 🙂

    1. Supplementary to the test of reasonableness (when determining infringement of the right of integrity) – which came up in the comments to your first post in this series – I came across the requirement of subjective and/or objective test of an act being “prejudicial to [the author’s] honour or reputation”. Roughly speaking, a subjective test requires the author of the work to establish such infringement; and an objective test would require expert or public opinion to establish such infringement.

    I am not aware of the Indian position in this matter, but international case law does not seem to be agreed upon whether or not these tests are exclusive, or to be applied in a hybrid fashion. At the very least, however, it appears that the subjective test has to be satisfied in order to establish infringement of the moral right to integrity. That is, the author has to claim that the act in question is prejudicial to her/his honour or reputation.

    I have not dwelt upon this too much, but it seems reasonable that at least the author must decide such an infringement, for who else except the author can determine what her/his honour or reputation constitutes.

    Such a test of author-subjectivity would be redundant if moral rights were available in perpetuity. And therefore, it seems justified that they should run parallel with the copyright itself. What do you think?

    2. Interestingly enough, I found some very robust discussion on this issue in Australian law, including on the moral rights of indigenous communities. Perhaps Duncan could be brought in to elucidate on this?

    3. As an aside, and it feeds off a discussion in the comments section of Prashant’s last post (on Creative Commons, and Tempostand.com), it is interesting that while CC has incorporated the moral right of attribution in its Attribution license, the inclusion of the Integrity license has been affected by the lack of harmonisation in international law.

    For a discussion on this, see: http://wiki.creativecommons.org/Version_3#International_Harmonization_.E2.80.93_Moral_Rights

    Reply
  2. AvatarShamnad Basheer

    Excellent post Mrinalini and very incisive query, Sumathi,

    You’re right–the subjective vs objective debate is a raging one in moral rights theory. The unique aspect of the Amarnath case is that for the first time a court (anywhere in the world) held that a moral right includes the right to object to a complete destruction/disappearance of the work from the public eye. As you know, Sehgal’s work was stashed away in a government go-down and he objected. Under an objective theory, he suffers no reputational or other moral harm, as the public cannot see his work at all. Therefore, by recognising his right to object under a moral rights theory, the Indian courts seem to have endorsed a subjective view–where the author was considerably troubled by the disappearance of his work from the public eye!!

    Shamnad

    Reply
  3. AvatarMukundan

    Hi,

    A thinking post. I have a few queries:
    01. Continuing with Sumathi’s comments on australian law having included the moral rights of its indigenous communities, how about in India towards protecting its regional or religion based traditional / cultural methodologies? Do the people who utilise these methodologies for their own purpose go under the cover of application of parody?

    02. The post has the sentence “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.”
    Whether this is applicable in this digital world?
    why should a law be termed beyond a scope of provisions when it can tackle issues that were not foreseen earlier but the possibility of those exists now?

    03. In the above sense, the indian provisions are too ahead of the times or a stroke of luck aligning more with the technological synergies happening?

    -Thanks and Regards

    Reply
  4. AvatarSumathi Chandrashekaran

    Shamnad: Thanks for that interpretation of the Sehgal case. It put the Indian position in perspective, and perhaps only substantiates my belief that moral rights *reasonably*, particularly of integrity, last as long as copyrights do. (Otherwise how would the parties to the rights be identified?) Or at best have some form of de facto preservation of the moral right of integrity.

    Mukundan: I believe there is still debate surrounding the legislation of Indigenous Communal Moral Rights in Australia, but I found an interesting article on IPWatch, which points out some differences between the principles of western copyright law and the protection (or lack of) traditional cultural expression: http://www.ip-watch.org/weblog/index.php?p=475

    Reply
  5. AvatarMrinalini Kochupillai

    Dear Sumathi

    Thanks for your fantastic and well researched comments.

    It does indeed seem reasonable to have the right of integrity last only for so long as the economic rights survive – after all, the author’s soul would probably not feel “hurt” no matter how terrible the mutilation and arguably, the author’s descendants taking over the rights would suffer no loss (atleast not monetarily speaking) if the works of their ancestors are mutilated. This seems particularly so because the wording of “moral rights” even in international texts are linked with the author as an individual.

    However, I was hoping through my post(the first part of Part 3) to discuss not just the legal issues relating to the “reputation” (subjective or objective) of the author but how exactly to ensure the integrity of a classical work even after the economic rights expire. In my view, there is a morality beyond the subjective sentiments of the author or his/her relatives that (should) come into play here. The current condition of C Subramania Bharti’s work as discussed in the article illustrates the point. The country as a whole has an interest in protecting its cultural and literary works way beyond the life of the authors and rights of the author’s descendants.

    This issue becomes more important in the light of traditional cultural expressions and traditional knowledge that do not belong to any one “author,” but there certainly are strong moral and ethical reasons to ensure that the integrity of these works are retained for the interest of the community and the nation as a whole.

    What I am calling out for is a reconsideration of the policy underlying “moral rights” in India and internationally. The pre-1994 position would, I believe, have been better suited to protecting the rights of communities. However, the term “author” would have be read very broadly as including entire communities.

    Please keep the comments coming. I think I really should have one more post on moral rights – possibly incorporating all your wonderful comments.

    Reply
  6. AvatarMrinalini Kochupillai

    Dear Mukundan

    Thanks for your comments.

    First, regarding your question on applicability of the rationale quoted in the article in the digital age, I think you are right. It would be difficult to argue that the work doesnt exist at all. Chances are, the work would continue to exist in some hardware or storage devise or email inbox somewhere in the world. However, if the work is a statue or painting or some other work that cannot be transmitted over the Internet, the argument would probably still stand. (Not that I agree with the rationale!)

    Regarding your second query, if I understand it correctly, laws are first and foremost, interpreted literally. If the language of the law clearly covers an existing situation, it will be appropriately applied, whether or not the situation existed at the time the law was drafted (unless the legislative history shows that the situation was explicitly intended to be excluded by the legislature). However, if the language of the law doesnt cover the situation at hand, we look at the legislative history and surrounding circumstances.

    In my view, Section 57 speaks of specific rights of “authors.” Section 2(d) defines the term “author” in relation to different categories of “works.” If the courts in India so wish, they may interpret the term “author” to include communities. Indeed international laws are not unaware of works of joint authorship. However, issues may still arise not only in terms of specific pieces of work but, more importantly, in relation to particular styles of work. For example, Madhubani paintings. Here, moral rights might overlap with Geographical indications and trademark law. Interestingly, in the US, a decided case under the Lanham Act (Trademark law) was interpreted as introducing the moral right of integrity into the US. The case was subsequently overruled (I think). More on this in a possible Part 4 to the moral rights discussions.

    As for your first question, copyright laws as they stand today do not prevent one from being “inspired” by a style of work. Further, regional or religion based traditional / cultural methodologies are not covered by copyright law. As such, these also cannot be patented. Once this knowledge comes into the public domain (as defined in contemporary terms), these are also not capable of protection under trade secret law. Protection of traditional knowledge, medicines and methodologies is therefore a hot topic of discussion and thought in the international community. I am working on a series of posts on this issue. Please keep your comments coming in!

    Reply

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