Copyright

Mirzapur 2 Controversy: The Right to Integrity and Free Speech


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Recently, the Amazon Prime web series Mirzapur 2 stirred up controversy over the use of a book as a prop alongwith a voiceover that the author claimed misrepresented his book and tarnished his reputation. In this post, I examine the right to integrity under Indian Copyright law to highlight the free speech issues underpinning these rights as well as their interface with fair dealing considerations.

Facts

The second season of Mirzapur includes an episode wherein actor Kulbhushan Kharbanda is shown reading a book titled, Dhabba. Surendra Mohan Pathak, the famous Hindi crime fiction author of the book, has taken strong objection to the use of his book and its accompanying unrelated voiceover which he argues has “mischievously misrepresented” his work. He wrote to the creators of the show, threatening legal action in case the scene was not removed from the series. His letter is reported to have said, “What is being read is sheer porno, the undersigned cannot even dream of writing, supposedly to titillate the viewers. But in the process, the whole sequence is shown as an excerpt from my novel ‘Dhabba’, which amounts to mischievous misrepresentation.” As a consequence, the show’s creators, Excel Entertainment have reportedly apologised to Pathak and changed the scene in the show.

Analysis

Surendra Mohan Pathak’s letter also noted pertinently, “I take very strong exception to this which even is a violation of the copyright act applicable to all printed material and hence I call upon you for your explanation to the above and immediate removal of the sequence from the said episode, failing which I will be forced to initiate legal proceedings against the aforesaid series and its writers, producers and the actor who was instrument to this malicious act.” He is presumably referring to his moral rights in the novel, which is protected as a literary work under the Copyright Act.

Section 57, titled ‘Author’s Special Rights’ in the Copyright Act provides for the right of the author to claim authorship of the work [57(1)(a)] as well the right to restrain or claim damages for the distortion, mutilation, modification of the work if such acts prejudice the author’s reputation [57(1)(b)]. The right to integrity protected under Section 57(1)(b) is material for this case at hand.

Moral rights vest with the author even after transfer or sale of copyright in the work in question and are arguably unwaivable. These rights can also be exercised in perpetuity even after the expiration of the term of copyright as per the 2012 amendment to Section 57(1)(b).

Moral rights are typically justified by personhood theories that emphasise protection of the author’s deep connection with their work, which is regarded as an extension of their personality itself. These theories are used to justify some degree of ongoing control by the author over their work due to their personality and self-actualisation interests involved therein.

However, strong moral rights protection of the kind that we have can cause chilling effects for downstream creators. While the outrage over distorting any original meaning or message relayed by the author can seem to be justified based on a sense of possessive individualism, considering the author as a participant in dialogue would make us believe that others are free to interact with their pre-exisiting works. This is because instead of assuming that those works were created out of nothingness by some paragon of independent creation, the work would be regarded as akin to speech, arising in a context, borrowing from what existed before and meant to elicit a response.

This is particularly important for the development of countercultures that seek to reinterpret or reimagine the existing narratives of dominant culture. Take this example- J.K. Rowling, author of the bestselling Harry Potter series made certain transphobic remarks on social media. If the transgender community as an act of resistance towards this abrasive dismissal of their identities by an author who holds significant sway over a considerable audience wants to reimagine the Harry Potter characters as transgender and create fanfiction around that idea, Ms. Rowling would be able to claim the same right based on the same justifications as those of Mr. Pathak wherein her work would presumably be presented in a context that she deems inappropriate. It is true that prejudice to the author’s reputation is to be adjudged not merely from the point of view of the author but also from the point of view of those who consider the author of high repute and honour. This requires the establishment of a legacy and reputation, which can be exclusionary for marginalised or lesser known creators who may fail to do the same to prevent the appropriation or mutilation of their works. This exclusion is in addition to what Manojna Yeluri’s notes while questioning the rationale of these rights in the first place, “when enforcing them is difficult in an economic culture that exploits grey areas, as much as it turns a blind eye to instances of plagiarising original art and music – instances like those of Shilo Shiv Suleman with Saaho, and Ritviz with T-Series.” Thus, these rights can be used to stifle the speech of downstream creators while their ability to work to the advantage of marginalised creators is seriously suspect in their current facially neutral form when their enforcement is riddled with power imbalances.

Conclusion

This also makes it imperative for fair dealing exemptions to be broadened, and to be applicable to moral rights. In their current statutory formulation, fair dealing in section 52 exempts only copyright infringement and is silent on its applicability to moral rights. As Nikhil has noted in his recent post, permitted uses or fair dealing of works should not be confined to exhaustive purposes in a listicle but embrace a more inclusive fair use model that allows for creativity to flourish. Given the nature of copyright and its rootedness in and ramifications on public interest, it is also imperative that any speech restrictive actions such as those facilitated by the right to integrity can be constitutionally and not just statutorily justified. Mutilation or distortion of narratives by minorities, particularly autobiographical speech or expressive works that draw on familial history by the gaze of those otherizing, erasing or whitewashing narratives may be presumed to be speech whose “history is discriminatory in origin” (Anthony Griffin, The First Amendment and the Art of Storytelling, page 267)

Further, the  constitutional recognition of liberty and autonomy of persons with diverse identities inextricably subsumes within it the ability to preserve and mould those identities while interacting with others. However, in this regard, affirmative free speech safeguards that protect against discriminatory speech or hate speech based on the vulnerabilities of some groups may be more useful politically than the right to integrity, which can have exclusive and silencing ramifications for downstream creators seeking to challenge dominant narratives. My aim here is not to propose the precise mechanics of how this could work, but to highlight the issues of constitutional concern that a strong right to integrity can lead to. As the Copyright Act is sought to be amended, this should be considered within a larger project to not look at copyright law or its fair dealing exemptions as a silo of private law impervious to constitutional scrutiny. By restricting the scope of private monopolies in favour of positively delineated rights that citizens have in using protected works, fair dealing ensures that impediments in access to information, and over free expression are justifiable. It is important to reconcile our strong moral rights regime, with further research on whose and what kinds of work they can be potentially used to silence, and who gets to enforce and deploy these rights, in order to align their scope and operation with any meaningful guarantee of free speech and equality.

4 comments.

  1. AvatarAnonymous

    Why do you think there is necessity of enlarging scope of section 52 when it already allows fair use for purpose of criticism ? Don’t you think any work ised for criticism/ review is fair dealing under 51(1)(a)(ii)

    Reply
  2. AvatarAnonymous

    Why do you think there is necessity of enlarging scope of section 52 when it already allows fair use for purpose of criticism ? Don’t you think any work used for criticism/ review is fair dealing under 51(1)(a)(ii). Hence how can we say current fair dealing provisions are inadequate for fostering free speech

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    1. AvatarAnupriya Dhonchak Post author

      From the text of the statute, fair dealing exempts only copyright and not moral rights infringement, hence harms to reputation can silence downstream creators. For more detailed arguments on the inadequacy of criticism and review in allowing for transformative use of works, please refer to Nikhil’s post linked in the piece.

      Reply
  3. AvatarAnonymous

    correct. That prompts me ask whether there can be instances where the works /acts mutilating works of author harming reputation of the author can be saved under because of right to free speech. Since the very object of moral right will be destroyed if individuals are allowed to do violate the right to integrity in guise of free speech do you think it will be fair to allow that under fair dealing provisions . A fair criticism is never prohibited and the moral right prohibition only pertains to works mutilating authors creations which may cause harm to reputation of author. In my opinion there is need to draw a boundary between works violating right to integrity and works involving fair criticism rather than including them in fair dealing provisions. The need for the same is reflected in your article too. I seek your response on this . you may also read the below blog post written by Advocate J. Sai Deepak explaining how drawing connection between moral rights and fair dealing provisions is mismatched https://thedemandingmistress.blogspot.com/2013/04/moral-rights-and-fair-use-mismatched.html

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