The Copyright Act of 1957 also ensures the protection of the moral rights of authors in addition to their economic rights. Moral right emerges the very moment there is a literary or artistic work. They reflect the personality of the author, just like economic rights help keeps his soul and body together.

In the case of Amarnath Sehgal vs UOI, the HC had observed that:

In today’s material world that we are surrounded with, laws have been enacted to ensure protection to equitable standards of remuneration. However, it must be realized that life is beyond material gains. Moral rights are considered the ‘soul’ of the author’s creation. This means he has the inherent right to preserve, protect and nurture his creation, which would be possible when moral rights get their due recognition.

“Droit Moral’ commonly referred to as moral rights have its initial traces under French Law. The Rome Act of 1928 added the droit moral to the Berne Convention of 1886. This right is considered an exception meaning the author shall possess the right to claim his moral right even after he had initially assigned his copyright to the publisher or some other person.

Copyright ensures the protection of both moral as well as economic rights to the author in due recognition of his intellectual property. Even after the author has transferred his copyright to some other person, moral rights continue to remain under absolute ownership by the actual owner. Under the Copyright Act, moral rights are rights that are exclusively conferred on an individual, this means the possibility of any corporation or organization claiming such rights getting ruled out.

The overall existence of moral rights is personal meaning they aren’t concerned with matters affecting the public interest. The constitutional right of freedom of speech and expression isn’t allowed as such criticism would result in being against the author’s moral rights. It becomes important to give utmost importance to the author thereby ignoring the interests of society.

HISTORY AND ORIGIN OF MORAL RIGHTS

Moral rights as a concept developed from German jurisprudence and French case laws. The eminent German philosopher Immanuel Kant proposed the theory of all human beings have some dignity and value by virtue of their very existence, and the same must be respected by society. In accordance with this theory, the idea of moral rights, which are founded on the notion that people have rights that are distinct from and in addition to their legal rights, was developed. The German lawmakers adopted the concept of moral rights into their copyright regime through codified law, and both rights to prohibit the exploitation of the work in a manner harmful to the author’s reputation along with the right to integrity (of the work) were included.

French maxim ‘le droit moral’ can be considered the genesis of moral rights. The French intellectual property rights system protects two bundles of rights- the economic rights of creative works known as ‘droit patrimoniaux’, as well as the bundle protecting other values of the work which are not economic, otherwise known as ‘droits moraux’. Of this, the non-economic rights of an author in creative works are protected under ‘le droit moral’, or the moral rights. It entered codified French law later on in 1957 when the French legislature codified the law on moral rights that had evolved through its judicial decisions for the previous century and a half.[1]

On the international stage, the Berne convention[2] brought in moral rights via Rome Act[3] – “Independently of the author’s economic rights, and even after the transfer of said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action about, the said work, which would be prejudicial to his honor or reputation.”[4] India is a signatory and has adopted this Article into the current copyright act.

The Indian Copyright Act, of 1847[5] introduced by the British in colonial India did not contain a provision for moral rights, but the Indian Copyright Act, of 1957[6] introduced moral rights in line with the Berne convention through its section 57 which provides for some additional rights that constitute moral rights even though the term moral rights are not mentioned in the same.

In its initial form, the Act merely provided temporary protection for economic rights while giving moral rights a continuous term of protection. The Copyright (Amendment) Act of 1994 accepted the Paris Act, of 1971 of the Berne Convention as the model for protecting moral rights, which stated that they should be protected regardless of the author’s economic rights.

Another significant change in Indian moral rights was brought about by the Copyright (Amendment) Act of 2012. By reinstating the notion of eternal moral rights, this act restored a dualistic model of separate regimes for economic rights and moral rights in 2012.

Indian jurisprudence can be said to have mainly been developed by judicial precedents through 2 landmark judgments. Mannu Bhandari case[7] is considered the oldest landmark case involving the moral rights of authors whereas Amar Nath Sehgal v. UoI[8] is referred to as a leading case in respect of the protection of the moral right of authors in India. Meanwhile, the more recent case of Raj Rewal v. UoI[9] provided for conflict between the moral right of the author as opposed to the right to property of the purchaser.

The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)” was the first to incorporate IPR into global markets. It sets up minimum protection for intellectual property rights across borders and enables intellectual property holders to enforce their rights across nations. Using TRIPS, the nations might cut trade expenses by creating exclusions or exceptions to IPR. The agreement does not create rights or obligations in the member countries to protect the moral rights of the author as given under Berne Convention.

DIFFERENT KINDS OF MORAL RIGHTS

The existence of moral rights has been recognized in most countries. The idea of copyright can be broadly divided into three parts:

The Right of Attribution– is also known as the Right of Paternity or Right to Authorship. This right establishes ownership of an author over his copyrighted work. This means the author has the right to claim his due authorship and can also prevent others from making such a claim. It states that he shall be named as the author provided, he is the one who has created the work. Similarly, he can also make demands that his name should appear in all the copies of his work in circulation and at the fitting place. He has the inherent position to prevent others from exercising wrongful use of his name in their works.

However, there are certain exceptions to the right of attribution.

• Wherein current events are to be reported
• To be published in a newspaper
• In a publication like an encyclopedia or dictionary

The Right to Integrity– this right establishes the understanding that an author is the one who has the right to prevent any action including distortion, mutilation, or alteration concerning the work that would otherwise result in being prejudicial to his honor or reputation. Meaning it is the author who gets to prevent any action that otherwise intends to destroy the ‘integrity’ of his created work. The author has two sets of rights. Firstly, it is the author who is capable enough to incorporate the changes if any, meaning it is at his discretion to make the required changes. Secondly, he shall prevent any such changes if made by any other person except him. This right is independent of any economic rights. Such right forms are essential wherein a license or assignment has to be granted to either adapt or alter the available work in a certain form or the other, e.g., wherein a cinematograph producer decides to convert a novel into a film or even a play for that purpose. The author of a work shall not be subjected to derogatory treatment under this right. The term ‘derogatory’ refers to materially distorting the work, destroying the work or even altering the work without the consent of the author. This right protects the integrity of both the author and his work. By alteration, we mean that the made changes shouldn’t intend to cause damage to the original work. This right ensures that there is no harm caused to the reputation of the author. However, the borderline between adaptation and distortion differs from one case to another and ultimately it is on the Courts to decide which case constitutes what.

The Rights against False Attribution- this right establishes the understanding that except the author of the work, no other person shall falsely represent himself as its author meaning the copyright owner can stop any other person from claiming any credit over his copyrighted work.  

Additional moral rights include the right to privacy, the right to be able to publish an original work, to withdraw the work, and to avert any infringement of the author’s reputation or dignity.

How does one acquire moral rights and on which types of work

The author puts his labor and intellect into his creation and claims copyright protection over the same. This means once copyright protection is created on his work, he is automatically entitled to moral rights. There is no requirement for registration to exercise such rights. Generally, moral rights remain during his entire lifetime and up to some years after his death. In certain countries, there are specified requirements that make it necessary for authors to assert their rights to be able to smoothly exercise them. Even the author is not allowed to transfer or assign his moral rights to somebody. However, there is an exception. Only in the case of the author’s death, the rights can be transferred to his legal representatives.

Moral rights are mostly related to:

• Artistic works refer to paintings, sculptures, a drawing (including a diagram, maps, charts, or plans), and architectural work.
• Literary workpieces include computer works, tables, and compilations including computer databases
• Dramatic works including plays and screenplays
• Musical works
• Cinematograph films including documentaries, music videos, commercials, and feature films
• Performances that would include both live and recorded
• However, sound recordings are not assigned moral rights

Waiver of moral rights

In most European countries, it is a common practice that moral rights cannot be waived. As per general practice, such rights are waived through a written contract executed by both parties or an expressed agreement. Moreover, the author can relinquish his rights thereby executing a severability clause in their agreed contract. In the case of employment contracts wherein the employee develops a product for the company thereby agreeing to relinquish his moral right. This means once the work is complete the copyright as well as moral rights shall vest with the company.

Infringement of moral rights

Instances of infringement of moral rights are reported wherein someone makes illegal use of the author’s work without his consent, has failed to acknowledge the author in his work, or uses the available work in such a way that harms the reputation or dignity of the author. Under such circumstances, the author is in a position to file a suit thereby claiming damages for such infringements.

Possible remedies available in infringement of moral rights

1. The Court shall pass an order of injunction to stop the infringement- depending on the circumstances of the case the injunction order can either be permanent or temporary. For the court to pass such an order three things must be proved. Firstly, there must exist a prima facie case, secondly, there must be an inconvenience that has been caused and lastly, the plaintiff must have suffered injury or damage as a result of such an inconvenience.
2. Pecuniary damages being awarded- for any inconvenience that has been caused by the defendant to the plaintiff, in such cases the plaintiff is entitled to claim compensatory damages from the defendant. In case the work had been converted to some other form, the plaintiff shall also be entitled to conversion damages.
3. Anton Piller Order- under this particular order, the court directs the defendant to immediately stop using the plaintiff’s work. If the court finds it necessary it can also direct the plaintiff’s lawyer to search the premises of the defendant.
4. To remove the derogatory treatment- the court shall execute such an order thereby directing the defendant to take away such comments or statements that can harm the author’s reputation.
5. To correct the false attribution- under this order, the court directs the defendant to acknowledge the author and include his name in the right place. The court shall direct the defendant to remove any possible instance of false attribution in the work.

Defenses for infringement of moral rights

Any person who has infringed on the rights established by the author can escape the liability of the resultant consequences provided he can establish that the infringement was reasonable. While determining whether or not the defense was reasonable, the court would take into account many different factors, including:

• The nature of a particular work
• The intended purpose and manner in which the work was put into use
• Personal views of the author relating to the infringement
• If the work was constituted in due course of employment

False attribution of moral right shall not be justified by the defense of reasonableness. However, there are some exceptions. There shall be no infringement of moral rights provided the author had himself consented to that particular act or omission of the act. A person can also state that the work he used was solely for research purposes or judicial proceedings.

MORAL RIGHTS IN INDIA

INDIAN CASES:

Mannu Bhandari vs. Kala Vikas Pictures Ltd. And Anr.[10]”

Facts- Mannu Bhandari, a famed Hindi author, signed a contract with the defendant company assigning them her film-making rights for her famous novel ‘Aap Ka Bunty’ which allowed the defendants to consult with her to make changes for the movie to perform well. After the production of the movie, Mannu Bhandari brought a suit for a permanent injunction against the defendants barring them from screening the movie since according to her, the modifications made by the filmmakers to the story would affect her image as well as the reputation of her novel.

Issue-

Scope of section 57 of the Copyright Act which governs moral rights.

Held-

The scope of section 57 concerning the contract of the assignment was heavily deliberated upon in this judgment. Section 57 confers upon the author of a literary work additional moral rights as opposed to a random copyright holder. The right of the author to enforce restraint or to pursue damages for the mutilation of the work persists even after the rights have been assigned either partially or wholly to another, conferred by the copyright act. In this case, the attempt of the respondents to claim immunity using the provisions of the contract is void since section 57 takes precedence over contractual rights.

The Court held that although to adapt a book into a movie some changes are necessary and hence considered permissible, changes that either mutilate, distort, or go so far as to fully alter the original theme as well as characters of the novel should not be allowed.

Meanwhile, the parties came to a settlement to the extent that Mannu Bhandari’s name or that of her novel wouldn’t be displayed in the credits.

Amar Nath Sehgal vs Union Of India[11]

Facts- The Indian government hired renowned sculptor Amarnath Sehgal to create a mural for the Vigyan Bhavan. The mural was made over the course of five years and unveiled in 1962. Due to ongoing renovations, the government chose to remove the murals that were mounted on the walls of Vigyan Bhavan and keep them in a storage area of the building without consulting Amarnath or getting his permission. The mural was also somewhat harmed as a result of carelessness and improper handling. Amarnath filed a lawsuit against the government, alleging that it had violated his moral rights by mistreating his artwork.

Issues-

The moral right of the author pertaining to the display of their work after having sold the work.

Held-

The government contended that after the transaction was finalized and the proper compensation had been given, it had the right to use the artwork in any way it saw fit, including deciding to take it down from public display. The Court, regardless of the ownership of the work, rejected this claim and highlighted the mural’s partial destruction and mutilation. As a result, the author received compensation in the amount of Rs. 5,00,000 and a court order directing the delivery of the mural’s remnants to Amarnath for repair and eventual sale.

The Court reaffirmed that moral rights cannot be snatched away from the author regardless of whether the work is sold. It was held that the moral rights of the author were violated due to the destruction or alteration of their work.

This case thus also set the unique precedent for the return of the author’s work in case of violation of moral rights.

Raj Rewal v. Union of India[12]

Facts- In this case, the moral rights of the creator of the Hall of Nations were in danger. The plaintiff was asked to create the same so that India’s 25th Independence Day may be commemorated by recognizing cultural progress. The roof and surrounding anchoring walls of the Hall of Nations were constructed using concrete, which also served as the space frame framework. It is a location with cultural heritage status. To make way for a new complex, the Hall of Nations was, unfortunately, razed in 2017. Sehgal sent the government several petitions and submissions, all in vain. After having his work destroyed, the plaintiff filed a lawsuit against the defendants in the Delhi High Court seeking damages.

Issue- If the author’s moral rights clash with the copyright holder’s property rights, which should take precedence? If the author had moral rights even though the defendant was the genuine owner of the structure?

Held- It was determined by the court concerning the building being a possession of the Union and that ITPO’s property rights guaranteed by the constitution conflict with the moral rights of the author. The moral rights of Raj Rewal are protected because they come into existence by the fact that he is an author of a copyrighted work. Yet it is impossible to compare the Copyright Act or any other piece of legislation to the Indian Constitution, which is the basis of all laws in India. Therefore, moral rights are incompatible with the defendant’s constitutionally guaranteed property rights.

Waiver of Moral Rights

Moral rights, by their very existence,are unassailable due to the existence of the works as reflections of or containing the author’s soul. Indian courts have taken a relatively strong stand in protecting the moral rights of the author as seen in the landmark cases of Mannu Bhandari and Amarnath Sehgal but the same attitude does not persist in other jurisdictions. The Copyright, Designs, and Patents Act 1988, which is United Kingdom’s primary Copyright legislation, through its section 79[13] places certain restrictions on the right to be identified, especially when the moral rights are clashing with the Crown’s copyright. Similarly, section 81[14] of the Act places restrictions on the “right to object to derogatory treatment of work.” Most importantly, section 87[15] allows the author to assign away all their rights, including moral rights, in clear contravention of the Berne convention[16].

Right to Integrity

The right to integrity is contained in section 80 of CDPA “as the Right to object to distortion or mutilation.” This has been through judicial pronouncements such as Confetti Records v Warner Music UK Ltd[17] been held to a test of objective reasonableness, that is to say, that the author’s opinion that the offending work is prejudicial to their honor or reputation is not enough and must be concluded by the Court through the standards of reasonability.

UK CASES:

Confetti Records v Warner Music UK Ltd”

Facts- Claimant company Confetti Records purchased the copyright to the song ‘Burning’ from the author which was licensed to the defendant Warner Music UK Ltd. The defendants produced a mix tape where the claimant’s song was used as a background over which the defendant’s rappers sang. The song contained lyrics suggestive of violence and drug use according to the claimant, hence they sued for derogative treatment of their work since such songs were not in line with the brand of songs the company usually released.

Issues- Whether the lyrics were suggestive of drug use or violence?

Whether the distortion of music amounts to an infringement of moral right?

Held- It was decided the words used in the song were either not related to drug use or violence or were in a foreign language that was not explained by competent experts. In any case, the moral rights belong to the author alone hence the moral right of the company cannot be violated. Additionally, it was held that mere distortion does not amount to mutilation unless it is prejudicial to the author’s reputation or honor.

HIRING A “GHOST-WRITER IN INDIA, PLAGIARISM AND THE QUESTION OF COPYRIGHT

What is meant by ‘ghost-writing’, can be described as either one of the following practices that have been mentioned below: –

• Despite having qualified for authorship, the author has failed to list himself
• Failure to acknowledge proper writing support
• Plagiarism
• Certain practices such as undisclosed authorship or undisclosed funding to establish writing support

In most cases, ghostwriting is established under a contractual arrangement, and the same is constituted voluntarily by both parties. Under such contracts, the writer is mostly hired for a specified purpose and once the work is complete, he is paid for his productive labor and time with the understanding that once the work is done, the buyer shall claim and make use of it as his own.

The fact that ghostwriting falls inside a grey area makes it intriguing. It is a form of plagiarism, the real difference being that the practice takes place with the accord of its rightful author. This rightful author is termed the ghostwriter. However, a dilemma arises in the understanding that whether such consent makes it morally acceptable. There is still an unclear explanation in the question that does the consent make it acceptable for the ostensible author (the one who commissions the work) to appropriate authorship of the work.

Ghostwriters are present in different settings including an organization, perchance as an assistant of a researcher, or some other analogous lower-rung position in comparison to the ostensible author. Focussing on the major reasons behind which ghost-writing contracts are mostly executed, a general rule has been affirmed that the socio-economic standing of the ghost-writer is usually lower than that of the ostensible author. Now, whether the given consent is true consent stands debatable. There are still many people who consider ghost-writing contracts unethical despite being legally recognized.

Relevant provisions of law

The Copyright Act of 1957 ensures copyright protection for the “original literary works” of the author. One example of such a work includes the content of a book. The author of a copyrighted work enjoys exclusive rights. The exclusive right is commonly referred to as economic rights. Also, the Copyright Act protects joint authorship wherein a work has been prepared by more than one author in collaboration. The Act entitles the author as the foremost title-holder of the work. In a parallel sense, the author has the absolute right to reproduce the work, publish the original work, display the same, or create “derivative works” from its primary work. Section 57 provides that the author has moral rights that attribute him as the owner of his created work even after the assignment, either wholly or partially of the said copyright.

A question always persists whether the rightful author or the contractual ghost-writer shall get their due recognition of their work. Recognition implies that the author shall be constituted as the author of the work. However, it is still not quite clear whether the author can waive off the right to attribution as contemplated. Recalling the 2006 judgment wherein the SC upheld that even the right to attribution can be waived only if agreed voluntarily by the author.

However, the above judgment doesn’t stand applicable in matters involving copyright, much less to Section 57. It is often argued that moral rights can simply be waived by the author meaning any purported waiver results in being ‘invalid’. As such the Indian courts haven’t specifically determined whether or not a such waiver is permitted as the statute itself has remained silent on the issue. It has been a common observation that the possibility of waiver exists especially in the extremely grey area of copyright law. Thus, it would be justified to presume that moral rights cannot be waived under any circumstance.

Lastly, shifting our focus to Section 18 it becomes clear that the section allows assignment by a prospective owner, i.e., a person shall not be recognized as the first owner. The term ‘first owner’ has been defined under Section 17. The provision makes it clear that parties entering into such agreements for assigning copyright in any future works, but such an assignment shall only take place once the work comes into existence and not before that.

COPYRIGHT PROTECTION IN PSEUDONYMOUS WORKS

As humans, we tend to closely associate names with literature, but most often we forget that these aren’t after all the author’s real names. This means they pen down their creative pieces without actually disclosing their real identity. These undisclosed names are what we refer to as ‘pseudonyms’ or ‘pen names’. These names are mostly used by their owners. However, the real motivation or the intent behind adopting such a pseudonym isn’t known. Irrespective of the specified reason, the need to ensure copyright protection in such works is slightly different than conventional copyright protection.

Section 54(b) of the Act states that in pseudonymous or unidentified works the publisher of the work shall be considered the default owner of the copyright. Such a default position remains intact until the real identity of the pseudonymous author has been disclosed publicly either by the author himself and the publisher or to the satisfaction of the Copyright Board by the author or his legal representatives.

There is still a grey area meaning the law hasn’t clarified what it means to divulge the identity of the author to the satisfaction of the authority.

According to Section 54(b) of the Act, only the publisher of the work will be granted copyright protection if the declaration identifying the real author hasn’t been made. Parallel to these lines, the Madras HC ruled in Brooke Bond India Ltd vs. Balaji Tea (India) Pvt. Ltd, 1993.

Once the identity of the pseudonymous author gets declared, the same shall have certain implications on the duration of copyright protection. Section 23 has expressly stated that when a particular work has been published anonymously meaning the real identity of the author isn’t known, copyright protection shall be ensured for 60 years. The actual count starts from the first day of the following calendar year after the work has been published.

CONCLUSION

The existence of moral rights inherently protects the author’s reputation. This reflects that the author has the sole right to modify or remove the work. The moment an author creates an original work the above right gets assigned. Moral rights strongly uphold the relationship of the author with the work. These rights are closely connected with his personality which means they shall not be ignored. Hence, the rights provide creative control to the author with due recognition of his original expressions.

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[1] Susan P. Liemer, “On the Origins of le Droit Moral: How Non-Economic Rights Came to be Protected in French IP Law” (2011) 19(1) J. Intell. Prop. L. 65.

[2] Berne Convention, 1886.

[3] Rome Act, 1928

[4] Berne Convention, 1886, art 6bis (1).

[5] The Indian Copyright Act, 1847.

[6] Indian Copyright Act, 1957.

[7] Mannu Bhandari v. Kala Vikas Pictures Pvt. Ltd. and Ors (1987) 7 PTC 87 (Del).

[8] Amar Nath Sehgal v. Union of India (2005) 30 PTC 253 (Del).

[9] Raj Rewal v. Union of India [CS(COMM) 3/2018, with IA Nos. 90 and 92 of 2018].

[10] Mannu Bhandari v. Kala Vikas Pictures Pvt. Ltd. and Ors (1987) 7 PTC 87 (Del).

[11] Amar Nath Sehgal v. Union of India (2005) 30 PTC 253 (Del).

[12] Raj Rewal v. Union of India [CS(COMM) 3/2018, with IA Nos. 90 and 92 of 2018].

[13] The Copyright, Designs and Patents Act, 1988, s79.

[14] Ibid, s 81.

[15] Ibid, s 87.

[16] Berne Convention, 1886.

[17] Confetti Records v Warner Music UK Ltd [2003] EWHC (Ch) 1274.

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Authors: Priyadarshini Goenka and Krishna Nair

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