by Minal Sahu
“Every artist dips his brush in his own soul and paints his own nature into his pictures” [i] as this is rightly quoted by James Baldwin. An art for the world may be just a piece of decoration which they own in exchange for money but for an artist, it is a piece of his own soul as he has created it by his thoughts, innovation, and creativity. An artist cannot lose all the rights if he has fully or partially assigned the copyright to someone else. This is supported by Universal Declaration of Human Rights as in Article 27(2) it has been quoted “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”[ii] If you are an artist and you are creating a work no matter who has financed or provided the means to create the work it is you who is applying thoughts and soul for creating it and an artist will be having moral rights over the work as it is a human right no one can take away the right to authorship or your right to Integrity on the work.
CONCEPT OF MORAL RIGHT
The moral right has not been given a direct place in copyright act 1957 of India but it has been provided under section 57 – Special Rights of Author this provision is taken from Bern Convention Article 6bis. Initially, this section covers only literally work but after a landmark judgments the court widened the scope of Article -57 now it includes literary, artistic, musical, dramatic and cinematograph films. Copyright is a form of intellectual property protection granted under Indian law to the creators of original works here original work means a work which has not been copied from someone’s work. The copyright act consists a bundle of exclusive rights to the owner of the copyright. Here copyright act provides protection to the author in two forms – a. Economic right b. Moral right. The author enjoys the economic right under section 14 of the act. As per section 17, First owner of copyright: - Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright.[iii]
WHAT ARE MORAL RIGHTS?
As per section 57, there are two basic moral rights of an author.These are:-
A. Right to Paternity, and
B. Right to integrity
Which has been defined as per the act as - Authors 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 to claim the authorship of the work as well as the right to restrain, or claim damages in respect of, ---
(a) any distortion, mutilation or other modification of the said work; or
(b) any other action in relation to the said work which would be prejudicial to his honor or reputation.
(2) The right conferred upon an author of a work by sub-section (1), other than the right to claim authorship of the work, may be exercised by the legal representative of the author. [iv]
INFRINGEMENT OF MORAL RIGHTS
The court has the discretion to choose remedies for copyright infringement and it varies from country to country like in Australian copyright, if a creator makes a claim for infringement of moral rights, the remedies a Court can grant include –
-Financial compensation (damages)
-An order to prevent or stop a particular activity (an injunction),
-An order that any false attribution of authorship, or derogatory treatment of the work, be reversed or removed. [v]
In India, a case decided not too long ago by the Delhi High Court, Amar Nath Sehgal v. Union of India(2002(2)ARBLR130(Delhi); 2005(30)PTC253(Del)) discusses the issue of moral rights in substantial detail. In this case the author created a mural and it was placed in the Vigyan Bhawan but it was pulled down without the permission of author and hence he filed a suit against the Ministry of Human Resource under section 57 of copyright act 1957 and it was held that though the copyright is vested with the ministry but the author has special rights under the act and it was quoted by Justice Pradeep Nandrajog “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”[vi] In a recent case of Sartaj Singh Pannu v. Gurbani Media Pvt. Ltd. and Ors., 2015, decided by a Single Judge Bench of the Delhi High Court, waivers of moral rights were touched upon. The court stated: "[....] the Court is not prepared to go as far as to deny the right of a Director to waive his right to be credited as such if for any reason he does not want his name to be associated with the film. As long as the waiver is voluntary, it cannot be said to be opposed to public policy."[vii] The biggest question that keeps on following the act since the commencement of act is whether the moral rights can be waived in India but as we can see that the statute is not clear about this question and there are few cases which deal with this the question is still debatable. According to two authors, “Indian law would probably permit waiver of moral rights if it is in writing and meets the “reasonableness” standard
Moral right protects the interest of an author that even after the copyright has been assigned to someone else his moral right cannot be taken by them. The author has the right to integrity and right to paternity in his work till his death and even after his death the legal representative can enjoy this right. The statue needs to be clearer about the concept of moral right and it should clearly define whether it can be waived or not. India also needs to widen the type of moral right as it cannot be summed up in 2 rights an author should be given much more importance.
[i] http://www.creativityatwork.com/2012/01/04/quotations-creative-spirit-in-art-and-livelihood/ as accessed on 18th May,16
[ii] http://www.un.org/en/documents/udhr/ as accessed on 19th May,16
[iii] https://indiankanoon.org/doc/1404402/ as accessed on 20th May,16
[iv] http://www.ircc.iitb.ac.in/webnew/Indian%20Copyright%20Act%201957.html as accessed on 20th May,16
[v] Wadhwa, Dr. B.L., “Law relating to Intellectual Property Rights”, Universal Law Publication Co., Fourth Edition.Pg. no. 303.
[vi] De-Coding Indian Intellectual Property Law
Indian Copyright -Exploring copyright, content and related issues from an Indian perspective.
ART AND INDIAN COPYRIGHT LAW: A STATUTORY READING