By Priya Adlakha and Tanvi Bhatnagar
Moral Rights of Author- “Copyright is one of the three main branches of the traditional law of intellectual property, along with patent law and trade mark law. Overshadowed historically by the economic worth of patents and trade marks, the plaintiff who believes that there can be no beauty without a soul, has brought the present action, hoping that the soul (copyright) is given its due place and recognition in the history of law” Hon’ble Mr. Justice Pradeep Nandrajog.
The Indian Copyright Act, 1957 provides protection of rights to an author of literary, dramatic, musical, artistic, cinematographic film, or sound recordings. In simple terms, it provides protection to people who creates an original work and gives them certain rights and privileges.
The Definition of an Author is provided under Section 2(d) of the Act. An Author means and includes the following:
(i) in relation to a literary or dramatic work, the author of the work;
(ii) in relation to a musical work, the composer;
(iii) in relation to an artistic work other than a photograph, the artist;
(iv) in relation to a photograph, the person taking the photograph;
(v) in relation to a cinematograph film or sound recording, the producer; and
(vi) in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created.
An Author of the Copyright is always the first owner of its work, thereafter the author can by permissible means assign his copyrights to another individual/entity and allow the same to use its original work. The Copyrights Act talks about two kinds of rights of an author that are its ‘economic or exclusive rights’ and its ‘moral rights’ with respect to its original work. This article aims to discuss about the ‘Moral/Special Rights’ of an Author under the Indian Copyright Act as well as conventions/treaties to which India is a signatory.
The Berne Convention
The Berne Convention was adopted in 1886 and provides protection to work and rights of authors of literacy and artistic works. Article 6bis of the Berne Convention enjoins the members of the Berne Union to provide legal recognition for the moral rights of attribution and integrity in a work in which copyright exits. India is a signatory to the Berne Convention and the Article 6bis of the convention has been a driven force for India to include these Moral Rights within its Copyright Act, 1957.
Copyright Act, 1957
Section 57 of the Copyright Act, 1957 provides for authors ‘special rights’. An author even after assignment either wholly or partially of its copyrighted work shall enjoy these special rights. These special rights include:
- The right to claim authorship of the work also known as the Right of paternity;
- To restrain or claim damages in respect of any distortion, mutilation, modification, or other act in relation to the authors work if such distortion, mutilation, modification is prejudicial to the authors honour or reputation, also known as the Right of integrity.
Cases on Moral Rights of Author
- Mannu Bhandhari Vs. Kala Vikas Pictures Pvt. Ltd., AIR 1987 Del 13:
Ms. Mannu Bhandari, the author of a published novel ‘Aap Ka Bunty’ sold the filming rights of the same to the Respondents who made the film ‘Samay Ki Dhara’. In the end of the novel, it was shown that the child is admitted to the hospital by his father however in the movie, it was shown that the child dies of starvation. The author felt that the ending was against her integrity and honour, and filed a suit in the District Court, Delhi, seeking permanent injunction against the screening of the film on the ground that the same was mutilated and distorted the author’s work. The District Court refused to grant an ad-interim restraint order in her favour. The Appellant approached the Hon’ble Delhi High Court in appeal which was decided in terms of a compromise. But, the Hon’ble High Court made certain observations with respect to Moral Rights of an author, which are reproduced below:
- Section 57 of the Copyright Act, 1957 confers additional rights on the author of a literary work as compared to the owner of a general copyright. The special protection of the intellectual property is emphasised by the fact that the remedies of a restraint order of damages can be claimed “even after the assignment either wholly or partially of the said copyright.” Section 57 thus clearly over-rides the terms of the contract of assignment of the copyright i.e. the contract of assignment shall be read subject to the provisions of Section 57. The assignee of a copyright cannot claim any rights or immunities based on the contract which are inconsistent with the provisions of Section 57.
- Section 57 protests social interest in art and culture and not merely the interest of the author.
- Sub-clause (a) of Clause (1) of Section 57 prohibits any distortion or mutilation of the author’s work. The words “other modification” appearing in the sub-clause (a) will have to be read ejusdem generis with the words “distortion” and “mutilation”. The modification should not be so serious that the modified form of the work looks quite different work from the original. “Modification” in the sense of the perversion of the original, may amount to distortion or mutilation. Sub-clause (a) thus provides inviolability to an intellectual work. Sub-clause (b) provides for remedies for protection of honour and reputation of the author.
- In an enquiry under Section 57, the Court does not sit as a super-censor. It’s only function is to see whether there, are “mutilations” or “distortions”.
- Amar Nath Sehgal Vs. Union of India, 2005 SCC OnLine Del 209:
This is one of the landmark judgements wherein, moral/special rights of an author were discussed. The issue here was that the Plaintiff Mr. Amar Nath Sehgal produced a piece of art (a bronze mural sculpture) for the lobby of the Vigyan Bhawan, Delhi on the request of Union of India/Respondent vide communication dated June 16, 1957. The mural was pulled down the mural and consigned to the store room in the year 1979 without the permissions, consent or authorization of the Plaintiff. The Plaintiff thereafter filed a suit for declaration, injunction and damages in respect of the mural against the Union of India. The Respondent pleaded ownership of the mural and right to consign same to the store room.
The Delhi High Court herein observed 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.”
The Hon’ble Mr. Justice P. Nandrajog, Delhi High Court further made following observations with respect to moral rights of an author:
- When an author creates a work of art or a literary work, it is possible to conceive of many rights which may flow. The first and foremost right which comes to one’s mind is the “Paternity Right” in the work, i.e. the right to have his name on the work. It may also be called the ‘identification right’ or ‘attribution right’. The second right which one thinks of is the right to disseminate his work i.e. the ‘divulgation or dissemination right’. It would embrace the economic right to sell the work or valuable consideration. Linked to the paternity right, a third right, being the right to maintain purity in the work can be thought of. There can be no purity without integrity. It may be a matter of opinion, but certainly, treatment of a work which is derogatory to the reputation of the author, or in some way degrades the work as conceived by the author can be objected to by the author. This would be the moral right of “integrity”. Lastly, one can conceive of a right to withdraw from publication ones work, if author feels that due to passage of time and changed opinion it is advisable to withdraw the work. This would be the authors right to “retraction”.
- Except for the ‘divulgation or dissemination right’ which perhaps is guided by commercial considerations, the other three rights originate from the fact that the creative individual is uniquely invested with the power and mystique of original genius, creating a privileged relationship between a creative author and his work. As I understand, this is the source of the last three rights noted in above and, therefore, could be captioned under the banner “The Authors Moral Rights”.
- Under Article 6bis of the Berne Convention, the moral right of integrity enables the author to seek appropriate legal remedies if the moral right of attribution and integrity in his work is violated. The moral rights set out in the Berne Convention are significant because they continue to be vested in the author even after he has parted with his economic rights in his work.
- There would therefore be urgent need to interpret Section 57 of the Copyright Act, 1957 in its wider amplitude to include destruction of a work of art, being the extreme form of mutilation, since by reducing the volume of the authors creative corpus it affects his reputation prejudicially as being actionable under said section. Further, in relation to the work of an author, subject to the work attaining the status of a modern national treasure, the right would include an action to protect the integrity of the work in relation to the cultural heritage of the nation.
The suit was decreed by the Hon’ble Delhi High Court in favour of the Plaintiff holding that all rights in the mural vests with him and that the Plaintiff has absolute right to recreate the same at any place and sell it too. Further, compensation worth INR 5 Lakhs was awarded to the Plaintiff.
- Wiley Eastern Ltd. & Anr. . Indian Institute of Management, 1995 SCC OnLine Del 100:
The Plaintiff No. 2, Professor U.K. Shrivastava along with the Plaintiff No. 1, a printing and publishing house sued the Defendant IIM Ahmedabad (Gujrat). Plaintiff No. 2 is co-author of a book titled ‘Quantitative Techniques for Managerial Decisions and ex-employee of the Defendant Institute.
The Defendant later found Plaintiff No. 2 guilty of plagiarism, his book had references from a lot of authors and due credit was not given to them. According to the Plaintiffs all this has seriously affected the said book commercially and in its marketability. The intellectual property rights of the Plaintiffs have been intervened and infringed providing a cause of action to them.
The suit was dismissed due to lack of territorial jurisdiction however, the Hon’ble Delhi High Court made observation that Section 57 of the Copyright Act talks about author’s special rights and such rights does not extend upon publishers of authors works.
- Fox Star Studios Vs. Aparna Bhat & Ors, 2020 SCC OnLine Del 36:
This is an interesting case filed by a practising advocate seeking challenge to the movie‘Chhapaak’, which is a story of Ms. Laxmi Agarwal, a survivor of acid attack. The Plaintiff Ms. Aparna Bhat claimed that she is practising in the area of women’s rights, children’s rights and rights of other underprivileged sections of society. She claimed that she was the lawyer representing acid attack survivor Ms. Laxmi Agarwal and was approached by Ms. Megha Gulazar (director of the movie) for her assistance in the making of the film. Ms. Bhat claims she was involved in the making of the film by giving her inputs, providing documents, explaining the legal nuances in the entire journey, editing the script etc. She claimed that in 2018, when the script was being discussed, it was agreed that Ms. Bhat’s role in film would be acknowledged by giving her certain credits in the film. Ms. Bhatt after finding out that her role has not been acknowledged in the movie filed the suit for injunction before the Delhi District Court. The Court granted an ex-parte ad-interim injunction in her favour and the said order was challenged by Fox Star Studios before the Hon’ble Delhi High Court. The Hon’ble Ms. Justice Pratibha M. Singh, upholding the injunction order passed by the Delhi District Court, made the following observations: :
- It is also the well-settled position in law that in order for any person’s paternity rights in any work to be recognised, a written contract is not required. The right of paternity is an integral part of the moral rights of a person who makes any contribution. Delving into the moral rights of an author, a learned Single Judge of this Court in Neha Bhasin v. Anand Raaj Anand, (2006) 132 DLT 196 recognized the right of the singer therein to be credited as the lead female singer as against just a singer.
- What would be the nature of acknowledgement / recognition that the Plaintiff would deserve? The Plaintiff is not the author of the script or the screenplay, however she has given inputs in the same. The said inputs could be considered to be those of an expert/a professional having expert knowledge, both in the legal journey of the victim, as also in general. For whatever reason, she had clearly altered her position based on the representations made by the Defendants and had not insisted on a written contract, maybe owing to the fact that she considered this to be a social cause and in view of the stature of Defendant No. 1.
The contribution of the Advocate was recognized by the Hon’ble Court and Fox Star Studios was restrained for releasing the movie ‘Chhappak’ without acknowledging the name of Ms. Aparna Bhat in the opening credits.
Therefore, the Moral Rights of an Author are recognized by the Copyright Act, 1957 as well as by the Indian Judiciary. These rights try to ensure that the essence or ethics of the authors’ work are not taken away by purchaser or assignees of copyright or anyone else. The authors therefore, can enforce these moral rights by filing a suit for permanent injunction, seeking declaration of author’s special rights under Section 57 of the Copyrights Act, 1957, its recognition as well as damages, in a competent court of law.
Moral Rights of Owner in Copyright Law of India – A Paradigm Shift