moral rights of an author

8/4/2019 Moral Rights of an Author

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INTRODUCTION

The rights of an author of a copyrightable work can be broadly classified into: -

(i) Economic rights, and

(ii) Moral rights

Moral rights are those special rights of an author in his work which cannotbetransferred and which will continue to vest in the author for the whole of thecopyright term. These rights which originated in France are recognised by thegeneral law of the land in almost all civilised nations. The generally acceptedmoral rights are:

(i) the right of paternity ( droit a la paternite)

(ii) the right of integrity ( droit au respect de loeuvre)

(iii) the right of disclosure (droit de divulgation)

(iv) the right of non-attribution

Article VI-A of the Berne convention, to which India is a signatory, recognizesmoral rights. Member states have been directed to provide authors the rights:

(i) to claim authorship; and(ii) to object to alterations

In India, the Copyrights Act, 1957 (the Act) gives statutory recognition to thefollowing moral rights :-

(i) Right to claim authorship of the work.

(ii) Right to restrain or claim damages in respect of any distortion, mutilation,modification or other act in relation to the work which is done before theexpiration of the term of copyright, if such distortion, mutilation, etc would beprejudicial to his honour or reputation. (S.57 of the Act.)These moral rights of the author are perpetual, inalienable, and descend to the heirs of theauthor, even after the author transfers the economic rights.


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The Origin of Moral Rights

"Moral rights" is the English translation of the French phrase droit moral. Moral rightsdiffer from copyright. Copyright protects property rights, which entitles authors to

publish and economically benefit from their published works. Moral rights safeguardpersonal and reputational rights, which permit authors to defend both the integrity of theirworks and the use of their names. In countries that legally recognize moral rights, authorshave redress to protect any distortion, misrepresentation, or interference of their worksthat could negatively affect their honor. Moral rights are often described as "inalienable."French law recognizes perpetual moral rights. In Germany, moral rights end when theauthor's copyright expires while in other countries, moral rights terminate with theauthor's death.

For a span of years, various authors and artists have filed law suits regarding the use oftheir works or, in the case of Samuel Clemens, the use of their names on works they did

not authorize. The first legal international treaty to recognize the concept of moral rightswas The Rome Act of 1928. Article 6bis(1) of the current Berne Convention treatyincludes a moral rights clause that protects authors' rights to decide whether and when topublish works, claims of authorship after the work is published, and preservation of theworks' integrity.

Copyright and Moral Rights

Moral rights differ from copyright. Whereas copyright protects property rights, which

entitles authors to economically benefit from the reproduction of their work, moral rightssafeguard personal and reputation rights, which permits authors to defend both theintegrity of their work and the use of their names. Many European countries provide formoral rights in addition to copyright held by an author. While copyright may be bought,sold or licensed, authors generally retain their moral rights, which cannot be transferredto third parties. The author and his/her heirs (in most countries) are the only ones whocan be holders of the moral rights originally bestowed to the author. In the UnitedKingdom, Ireland, Holland, United States and Canada the author can, under certainconditions, waive his/her moral rights.4

Economic Rights and MoralRights

Independently of the author's economic rights, and even after the transfer of the saidrights, the author shall have the right to claim authorship of the work and to object to anydistortion, mutilation or other modification of, or other derogatory action in relation to,


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the said work, which would be prejudicial to his honor or reputation. Moral rights arenon-economic rights, as they do not directly confer a financial return on copyrightcreators or owners. They may not be traded, sold or bequeathed in a will, although whenthe creator dies the rights may be exercised by his or her legal personal representatives.5

Who has moral rights?Individual creators have moral rights in relation to their work. Examples of such creatorsare:

the writer of a novel;

the writer of a screenplay;

the architect of a building;

the composer of a song melody and the writer of the lyrics;

the painter of a picture;

the choreographer of a ballet.

In the case of films the following people have moral rights:

the principal director;

the principal producer (provided the producer is a natural person and not acompany); and

the principal screen writer.6

It is noteworthy that in light of above only individuals (natural persons) have moralrights; therefore, Corporations/juristic persons do not have any moral rights.

Moral Rights in InternationalLaw

Although the protection of moral rights is chiefly a matter of national law, a brief reviewof the international basis of national moral rights statutes is helpful in understanding thecommon core of transnational moral rights law. The primary international reference formoral rights is the Berne Convention for the Protection of Literary and Artistic Works(Berne Convention)7, which has contained a moral rights provision since 1928. Article

6bis(1) of Berne Convention, which is universally understood as codifying the moralrights of attribution and integrity, reads:

Independently of the author's economic rights, and even after the transfer of thesaid rights, the author shall have the right to claim authorship of the work and toobject to any distortion, mutilation or other modification of, or other derogatory


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action in relation to, the said work, which would be prejudicial to his honor orreputation.

In 1996 that moral rights again became the object of international regulation, when

Article 6bis of the Berne Convention was incorporated by reference into the WorldIntellectual Property Organization (WIPO) Copyright Treaty (WCT) and expandedto apply to performing artists by the WIPO Performances and Phonograms Treaty(WPPT), with a slight, but significant, modification. Article 5(1) of the WPPT reads:

"Independently of a performer's economic rights, and even after the transfer of thoserights, the performer shall, as regards his live aural performances or performances fixedin phonograms, have the right to claim to be identified as the performer of his performances, except where omission is dictated by the manner of the use of theperformance, and to object to any distortion, mutilation or other modification of hisperformances that would be prejudicial to his reputation."

Currently, Article 5 of the WPPT and Article 6bis of the Berne Convention are the onlyrelevant moral rights provisions on the international level.

Unfortunately, The Berne Convention is silent on the question on whether moral rightscan be waived or alienated. It is for this reason some member countries allow the moralrights waiver.

Moral Rights; Indian

PerspectiveThe Copyright Act, 1957 recognizes the moral rights of an author as enunciated in BerneConvention and WPPT, Section 57 reads as follows:

Author's special rights:-

[ (1) Independently of the author's copyright and even after the assignment eitherwholly or partially of the said copyright, the author of a work shall have the right

(a) to claim the 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 theexpiration of the term of copyright if such distortion , mutiliationor other actwould be prejudicial to his honor or reputation:

Provided that the author shall not have any right to restrain or claim damages in respectof nay adaptation of a computer programme to which clause (aa) of sub-section (1) ofsection 52 applies.


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Explanation-failure to display a work or to display it to the satisfaction of the author shallnot be deemed to be an infringement of the rights confer by this section.]

(2) The right conferred upon an author of a work by sub-section (1), other than the rightto claim authorship of the work, may be exercised by the legal representative of the

author.

Section 57 falls in Chapter XII of the Act concerning civil remedies. It is astatutory recognition of the special care with which the intellectual property isprotected.

The proviso to section 57 states that the author will not have the right to restrainof claim damages in respect of any adaptation of a computer programme by alawful possessor of a copy of a computer programme, to utilise the computerprogramme for which it was supplied and to make backup copies as a temporaryprotection against loss. By the proviso, this section also confers the special rightson the authors of computer programmes. A computer programme is defined tomean a setof instructions expressed in words, codes, scheme, or in any other form including amachine, or recordable medium capable of causing a computer to perform aparticular task or achieve a particular result.

Under section 57, the author has a right to restrain infringement or claim damagesfor infringement of the copyright. This section provides an exception to the rulethat after an author has parted with his rights in favour of a publisher or otherperson, the latter alone is entitled to sue in respect of infringement. These rights

are independent of the authors copyright and the remedies open to the authorunder section 55 (relating to infringement of a copyright).

Section 57 clearly overrides the terms of the contract of assignment of thecopyright. The contract of assignment would be read subject to the provisions ofsection 57 and the terms of contract cannot negate the special rights and remediesguaranteed by section 57.

The assignee of a copyright cannot claim any rights or immunities based on thecontract, which are inconsistent with the provisions of section 57.

This section prohibits any distortion, mutilation or other modification of theauthors work. The words other modification are ejusdem generis with the worddistortion and mutilation. The modification should not be so serious that themodified form of the work looks quite different work from the original.Modification in the sense of the perversion of the original, will amount todistortion or mutilation.


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Judicial Precedents by Indian

courts on Moral RightThe courts in India have been very cautious and sensitive as far as the cases on violationof moral rights are concerned. Time and time again they have proved that they areresponsive to protecting the moral rights of an author.

In Phoolan Devi v. Shekar Kapoor, (1995-PTC Del), the plaintiff

claimed that the basis of the film, being a novel dictated by the illiterate plaintiffherself had been considerably mutilated by the film producer. The plaintiff soughta restraint order against the defendant, from exhibiting publicly or privately,selling, entering into film festivals, promoting, advertising, producing in anyformat or medium, wholly or partially, the film Bandit Queen in India or elsewhere. Granting an injunction Vijendra, Jain J. held, that the defendant had noright to exhibit the film as produced violating the privacy of plaintiffs body andperson. The balanceof convenience is also in favour of restraining the defendants from exhibiting thefilm any further as it would cause further injury to the plaintiff. No amount ofmoney can compensate the indignities, torture, and feeling of guilt and shamewhich has been ascribed to the plaintiff in the film. Therefore, the defendants wererefrained from exhibiting the film in its censored version till the final decision ofthe suit.

High Court of Delhi in its judgment in CS(OS) 2074/1992, Amar Nath Sehgal vs.

Union of India decided on 21.02.2005 by Hon'ble Mr.Justice Pradeep Nandrajog

have acknowledged the moral rights of plaintiff (author) even after transfer of economicrights.

In this case the plaintiff was a renowned artist who was chosen to create a mural todecorate the wall of the lobby of Vigyan Bhawan. The artist, after extensive research andhard work of over half a decade, created a mural which was soon recognised as animportant part of Indian cultural heritage. However, unfortunately the mural was

removed from its place and was kept in a warehouse. This resulted in extreme anxiety forthe artist and he brought an action seeking:

Return of the work; declaration that all rights in mural vest in favour of author;declaration that the author (Mr Seghal) will have absolute right to recreate the muralat any place and sell the work; and damages and costs of the suit.


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The Court noted that the work was too precious to be reduced to scrap and languish in awarehouse. It thus granted all of the above relieves in favour of the author. In fact, theCourt went a step further and not only provided an injunction but also awarded damagesof Rs. 500,000/- (US$11,000 approximately) to the artist, holding that he not only lost hisreputation but also his peace of mind due to mutilation of the mural. The Court also held

that all the rights in the mural vested in the plaintiff and he has absolute right to recreatethe mural at any place and to sell the same.

The Court rejected contentions raised by the Union of India, which mostly revolvedround the assignment of the copyright and the contractual terms that were agreed by bothparties, holding that moral rights are independent of author's copyright. They exist evenafter the assignment either wholly or partially.

In Mannu Bhandari vs. Kala Vikas Pictures (Pvt) Ltd, The plaintiff had

an objection to screening of the motion picture on the grounds that the picture was adistorted version of her novel that would undermine her reputation before students,

research scholars and the literary world if it was allowed to be presented in its presentform. The author objected to the change in name, modifications/ alterations in characterand dialogues, and the climax of the movie which according to the plaintiff was changed.Providing due respect to the moral rights of the author (even after economic rights wereduly assigned), the Court held that the dialogues which had been deleted from the filmcould not be described as necessary variations for the change in the medium ie, fromliterary to audio-visual. Additionally, the Court agreed that the novel's name should find aplace in the title of the film.

In doing so the Court upheld the moral rights of the author. The decision also vindicatedthe view that a film producer cannot make such alterations/ modifications in the original

work of the author which will result in distortion of original work without the author'sconsent.

In K.P.M. Sundhram vs. Rattan Prakashan Mandir the plaintiff, with his

co-authors, licensed the economic rights in their works to the defendant to print and publish their works. However, after the sole and exclusive license was created, theplaintiff found that the defendant had been publishing their works in a modified formwhich mutilated and distorted the original works. Aggrieved by such modifications, theplaintiffs revoked the agreement to license the works to the defendant. The defendantsstill continued publishing the works and the dispute reached the court.

Once again upholding the moral rights of an author even after licensing the economicrights, the Court held that after the revocation of agreement by the plaintiffs no right wasleft with the defendants to continue publishing and selling their works.

It is worth mentioning here that the Indian Copyright Act, 1957 does not provide anymechanism of transfer of moral right rather it clearly distinguishes the rights underSection 57 from author's copyright.


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Alienation of moral Rights

Moral rights are inalienable in the sense that they can be neither transferred to thirdparties nor relinquished altogether. They are personal to the author. To the extent that

moral rights extend beyond the life of the author, they are passed on to the author's heirsupon the author's death in accordance with the applicable local rules. However, this doesnot mean that the author cannot authorize a third party to bring a moral rights claim in theauthor's name. More specifically, in addition to prohibiting an outright transfer of moralrights, it also sets a number of limits to the legally permissible content of copyrightcontracts.11

Can moral rights be sold ortransferred?

No. Unlike copyright, moral rights cannot be transferred or sold. Berne Convention andWPPT clearly states Independently of the author's economic rights which shows thatmoral rights are different from copyright, which consists of economic rights (such asthe right to reproduce the work), which can be assigned or licensed. Creators cannotassign, transfer or sell their moral rights. Creators can give consent for their work to beused in specific ways, but cannot assign the right to grant such consent. Where moralrights continue after the creator's death, they would be administered by the creator's legalpersonal representative.

Concluding RemarksIt is quiet clear from the above discussion that 'Moral Rights' noticeably diverse form the'economic rights' of a creator(an author) and the 'Moral Rights' have not been given anymonetary value these are "right of attribution" and "right of integrity" which can not becalculated in 'economic terms'. 'Economic rights' of an author vests in his/her copyrightand copyright laws clearly provides different apparatus to transfer the copyright throughassignment or license. Sale of author's 'Moral Rights' can not possible due to its cleardistinction from 'economic rights' and 'sale' is purely an economic notion. Relying on theabove judgments of Indian courts, it is note worthy that the 'moral rights' sustains even

after the author transfers the economic rights. Therefore, it may not be possible for a'buyer of moral rights' to claim "right of attribution and "right of integrity" as theserights perpetually vest in author only.

moral rights of an author

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