A. P. LEGAL SERVICES PVT. LTD.
Legal Empowerment through Professional Excellence

SHIVA PATEL

4TH  year, NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL

Introduction:

Moral Rights:

Moral rights are rights of the author even after he has transferred his copyrights for business purposes.

They allow an author to claim damages in case of distortion of facts, modification, mutilation of his work or any disrepute or dishonour.

Moral rights can be exercised when one observes gross violation of the literary work. It varies across countries. India empowers authors by providing the moral rights

Origin:

Moral rights are widely considered to originate in the culture of Western Europe. This creates a privileged relationship in law between a creative author and his work.  Moral rights provide legal protections for a number of key elements in this relationship, including a right to be identified as the author of one’s own work, protection from the association of another author with one’s work, and the prevention of unauthorized distortions of one’s work.

While moral rights have traditionally been associated with the Western Europe, the doctrine has proven to be surprisingly popular in many other countries like India, Russia, and Mali.

The legislative and judicial approaches to moral rights in these jurisdictions are often highly innovative. Their experiences suggest that moral rights need not be limited in their application to the relationship between an author and a work which falls within established categories of Western art.  In particular, the flexibility of moral rights doctrine has interesting implications for cultural patrimony, suggesting that moral rights can make an important contribution to the preservation and protection of cultural heritage throughout the world

Relevant provisions of Indian Law

Section 57 of the Indian Copyright Act, 1957 provides for moral rights-

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

Position in India

The inclusion of waiver in moral rights provisions should largely be based on how moral rights have come to be seen in that country. It has been suggested that in countries which interpret right of integrity to extend to any alteration whatsoever of the work, making the right unwaivable may well prevent many potentially efficient transactions[1]. Such transactions may be the production of a motion picture or a sound recording out of a book, as such production will necessarily alter the work to some extent, or in case of ghost-writing contracts. Forbidding the author to waive his moral rights may, in such bona fide cases be counter-productive for the society. [2]

Reference to Amar Nath Sehgal Case:

Coming to the Indian position, the Courts have on more than one occasion, upheld the piousness of moral rights in India.[3]

The case of Amar Nath Sehgal’s mural throws into relief the importance of the Section 57 provision of the Indian Copyright Act, and of the weight it has been accorded by courts in India. It also gives reason to thank the wisdom of those who resolved, all those years ago, that there should be a higher law to protect the soul and essence of artistic expression as much as – or more than – the physical or tangible form of that expression.[4]

The Court observed in the case of Amar Nath Sehgal v. Union of India & Anr [5] that “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.” In a country where moral rights are considered so sacrosanct, the Court is likely to struck down any alteration whatsoever of the author’s work. Waiver, in a limited sense, might thus be beneficial for a country like India.

Waiver must therefore be legislatively recognized by India. To safeguard artists’ rights, such waiver must be in writing, signed and specifying both the part of the work to which waiver applies, and its intended uses. Such waiver should not be transferable from one owner to another. The requirement of writing, and the provision of non-transferability while effectively allowing waivers, will restrict its actual use only to situations where the conversion of work desperately demands so, and it is not prejudicial to the author’s interest. [6]

The Indian author, however, has always been seen as a party with a weak bargaining power. The big business entities- usually corporate- have raked millions out of the creative works of the authors, whereas such authors have got minimal returns for the same.[7] Waiver may pose similar problems for authors, if it is used for purposes different from those stipulated in the contract. Courts may not be the best resort for such budding authors. Help may be taken from the waiver provisions of the ‘California State Moral Rights Code’. Section 987[8] provides protection of moral rights similar to what has been proposed above. Most importantly for this discussion is Section 989[9] which provides that a ‘public interest corporation’ may enforce the artist’s moral rights as granted in Section 987. On the similar lines is the ‘Massachusetts State Moral Rights Code’. Chapter 23 Section 85s while providing for moral rights and its waiver, also permits ‘State Attorney General’ to bring a posthumous claim “with respect of any work of art which is in public view”[10]

A similar protection is desirable for Indian authors. Various societies, including the Indian Performing Rights Society (IPRS) should be allowed to bring action for enforcement of moral rights of individual authors or for breach of contract of waiver. The collective bargaining power of such societies will ensure that the authors get a fair representation, and that their rights are adequately safeguarded against corporate entities.[11]

Conclusion

Towards the conclusion, it can safely be said that waiver should not be seen as an evil. Waivers for legitimate purposes may actually be beneficial for both authors and the holder of economic rights. We should also underline that the characteristics of non-waiver sometimes harm the authors, who are paid less for their works if publishers do not acquire moral rights[12] In such a situation, allowing waivers in a limited manner might be advantageous for the society. Further, the Courts should also adjudge an issue involving waiver on the touchstone of reasonableness and rationality.

The model as proposed above could result in an increase in contracts having a waiver clause, but will provide safeguards for the rights of the authors. Such a provision might fare better than the existing situation, as it will curb the prevalence of blanket waivers and will also reinforce the interests of the authors.

Also, according to me the decision in Amar Nath Seghal's[13] 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 downright coercion.)

Lastly, 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.

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?  

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.

Bibliography

Case Laws:

·         Amarnath Sehgal v. Union of India & anr. 2005 (30) PTC 253

·         Mannu Bhandari v. Kala Vikas Pictures Pvt. Ltd. AIR 1987 Delhi 13

Articles:

·         H. Hansmann, M. Santilli, Authors’ and Artists’ Moral Rights: A Comparative Legal and Economic Analysis, The Journal of Legal Studies

·         Vinay Ganesh Sitapati, Conferring 'Moral Rights' on Actors, Economic and Political Weekly

[8] Cal. Civ. Code § 987(a)