Moral rights

From Justice Definitions Project

What are ‘Moral Rights’?

Moral rights refer to the personal rights a creator is considered to have over their work. They are derived from the French term ‘droit moral’ which literally translates to moral rights. It relies on the connection between an author and their creation. Moral rights provides the creator with personal and reputational value for their work, in addition to economic rights.[1]

There exist two approaches to moral rights: monist and dualist approach. In the former, moral rights are not recognized independently of economic rights and are clubbed together while in the latter, an author is considered to have two distinct rights. The dualist approach has been incorporated in the Berne Convention as well as the World Intellectual Property Organization's Performances and Phonograms Treaty.

In India, the copyright regime provides a bundle of rights which can be classified under two heads: economic rights[2] and moral rights.[3] Moral rights are considered to be the ‘soul’ of the author’s creation.[4] Even after the copyright of the creation has been transferred, the moral rights continue to remain with the author.

Official Definition/ Relevant Legal Provisions

'Moral Rights' as defined in legislation(s)

The moral rights are embedded in Section 57(1)(b) of the Copyright Act, 1957 even though moral rights are not explicitly mentioned in the provision. The moral rights were introduced in compliance with the Berne Convention. The provision protects the work of an author from “any distortion, mutilation, modification or other act in relation to the said work if such distortion, mutilation, modification or other act would be prejudicial to his honor or reputation”.[5]

Section 57 was amended through the Copyright (Amendment) Act, 1994 which introduced the model of protection of moral rights as envisioned under the Final Paris Act, 1971 of the Berne Convention. The statutory provision was further amended under the Copyright (Amendment) Act, 2012.

Duration

The Copyright (Amendment) Act, 1994 changed the duration of moral rights from perpetuity and made it co-terminus with the economic rights of the author. Earlier, India followed the dualist tradition wherein moral rights were perpetual, however, through the amendment India followed the monist tradition wherein there exists an equal term for both economic and moral rights.[6] This underwent a change under the Copyright (Amendment) Act, 2012 which brought back moral rights for perpetuity. In addition, the 2012 Amendment introduced moral rights for performers.[7]

Exceptions

The 1991 amendment introduced certain exceptions to moral rights with respect to the adaptation of computer programs such as reverse engineering. This was done to promote innovation in the IT industry.[8] Further, it explained that failure to display a work to meet the author's expectations does not infringe on moral rights.[9]

The right to integrity of a performer is limited by an exception that states that the mere removal of any portion of a performance for the purpose of editing…or other modifications required for purely technical reasons cannot be deemed to be prejudicial to the reputation of the performer.[10]

Remedies

The Indian moral rights realm protects the author through both civil and criminal remedies. The author has the right to restrain or claim damages in case of violation of the integrity of his works. This protects the right to integrity and the right to paternity of the author. The right against false attribution is protected through the common practice of passing off action.[11] These remedies are independent of remedies in case of infringement of the economic rights of the author.[12]

The act does not explicitly provide for criminal remedies for violation of moral rights. However, the infringement of the general provision of the Act is punishable by imprisonment for a term which shall not be less than 6 months and may extend to 3 years and with a fine. Since moral rights are the special rights of the author, they are covered under the general provisions of criminal remedies of the Act.[13]

'Moral Rights' as defined in case law(s)

In Mannu Bhandari v Kala Vikas Pictures, the court underscored the right of the author to prevent distortion of their creative vision. The moral rights are defined as author’s special rights which promote creative genius of authors by recognizing their efforts and encouraging broader societal interests.[14] The court considers that Section 57 is not limited to merely literary work but rather extends to visual as well as audio manifestation.[15]

In Amarnath Sehgal v Union of India, the court held that Section 57 should be interpreted in its widest sense, including destruction or mutilation of work art, which prejudicially affects the reputation of the author. The court also affirmed the importance of International Conventions and norms for the interpretation of domestic laws.[16]

The moral rights are retained by the author despite the transfer of the ownership of work. Section 57 presupposes authorship and thereby, only the author can claim the protection of moral rights.[17] The moral rights of the author are neither alienable nor assignable in India.[18] It is construed that the terms of a contract with an author are consistent with moral rights and do not negate them. As a result, the provisions of a contract are to be read in the context of Section 57 and the contractual terms cannot override Section 57.[19]

"Moral Rights' as defined in International Instrument(s)

Berne Convention for the Protection of Literary and Artistic Works

In international law, droit moral made its way to the Berne Convention through the Rome Revision Conference in 1928. These rights are enumerated in Article 6bis of the Berne Convention which provides two forms of moral rights- paternity and integrity. Article 6bis considers moral rights to be an independent category of rights which are distinct from economic rights. It mandates all contracting parties to provide a minimum standard for moral rights consisting of the right of attribution and the right to integrity. Since the method of compliance is left to the discretion of states, some states protect moral rights using tort or contract law.

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

The TRIPS Agreement was amended to exclude Article 6bis of the Berne Convention from its ambit. Article 9.1 of the TRIPS Agreement states that the members have no rights and obligations under Article 6bis due to which the Member States cannot pursue moral rights under the WTO dispute settlement. It was argued that moral rights are non-economic in nature and thus, should be excluded from the trade-related agreement which focuses solely on the economic aspect.

Components of Moral Rights

There are three principal elements which are considered to be a part of moral rights:

Right to Integrity

The right to integrity protects the creation of the author in the same state as it left the mind of the author. Any change or alteration to the work must be made only with the explicit consent of the author regardless of the nature of the change- whether derogatory or not. The right is further extended to the prevention of the presentation of creation in a context wherein it was not anticipated by the author and to protect the piece from destruction.[20]

Right to Paternity

The right of paternity provides the author with proper acknowledgement for his work. It is also known as the right of attribution or the right of authorship. It is required that the identification of the author should be clear and prominent on each copy of the creation as well as publicity of the work. It provides the author with an inherent right to prevent the wrongful use of his name in the works of others.[21]

Right to Divulgation

The right to divulgation allows the author to release the artwork when they deem it complete and it is contingent upon the author to mark its completion.[22]

In addition, a fourth right is considered to be a part of moral rights in addition to the classical doctrine- the right to withdrawal. The right allows the author to take off their work from the market. The right can waived through a written contract wherein a severability clause extinguishes the existence of moral rights. In India, there does not exist a settled jurisprudence on the question if moral rights can be waived or not. However, it was held by the Delhi High Court that a voluntary waiver is valid if it is not against the public policy and voluntariness is ascertained.[23]

International Experience

United States of America

In the United States, moral rights are protected by the Visual Artists Rights Act, 1990 (“VARA”) through 17 U.S.C. §106A. Prior to the codification of moral rights, attempts were made to introduce moral rights through S. 43(a) of the Lanham Act.[24]

VARA is solely restricted to the authors of “works of visual art”, producing a limited number of copies (under 200). It does not cover applied art,[25] work made for hire, site-specific art,[26] or works produced in bulk.

It provides the right of attribution and right of integrity to authors, however, there are certain exceptions to the protection granted by VARA. The exceptions include the passage of time, the inherent nature of materials, conservation, and public presentation. In addition, the USA provides for the right to withdraw under S. 106A(e)(1). It has been argued by scholars that the protection of moral rights solely to visual arts is a breach of the Berne Convention which grants protection to all creative works.

France

Article 121-1 of the French Copyright Code provides moral rights to the creators.[27] France employs a subjective analysis of reputation and honor in ascertaining the moral rights of the author. Instead of the requirement of establishing an objective standard, an author’s subjective evidence establishes the claim asserting prejudice to the creation. In addition, French moral rights are perpetual in nature- they do not extinguish the economic rights of the author. The moral rights guaranteed in France transcend the minimum standard protection given in the Berne Convention.[28]

United Kingdom

The concept of moral rights originated with the Statute of Anne 1710 which emphasized economic considerations over the moral interests of the author. Moral Rights were formally introduced in the Copyright, Designs, and Patents Act, 1988 (“CDPA”).  The CDPA provides an author with the right to object to derogatory treatment, the right to be identified as an author and protection for privacy as well as against false attribution though privacy, and false attribution are not traditionally associated with moral rights.

Moral Rights in the United Kingdom are provided on an objective analysis of evidence claiming prejudice to a reasonable author.[29] The scope of moral rights is narrow under the CDPA. The position of the author with weak bargaining is further aggravated in a commercial setting due to provisions like waivers and exceptions limiting the enforceability of moral rights.

References

  1. ↑ Betsy Rosenblatt, Moral Rights Basics, Mar 1998, Available at:https://cyber.harvard.edu/property/library/moralprimer.html
  2. ↑ The Copyright Act, 1957, Section 14
  3. ↑ The Copyrights Act, 1957, Section 57(1)(b)
  4. ↑ Amarnath Sehgal v. Union of India, 117 (2005) DLT 717.
  5. ↑ The Copyright Act, 1957, Section 57
  6. ↑ GR Raghavender, The origin and development of a moral rights regime in India, 14(4) Journal of Intellectual Property Law & Practice (2019), DOI:https://doi.org/10.1093/jiplp/jpz006
  7. ↑ The Copyright Act, 1957, Section 38B
  8. ↑ The Copyright Act, 1957, Section 57(1), Section 52(1)(aa)
  9. ↑ ibid.
  10. ↑ The Copyright Act, 1957, Section 38B
  11. ↑ GR Raghavender, The origin and development of a moral rights regime in India, 14(4) Journal of Intellectual Property Law & Practice (2019), DOI:https://doi.org/10.1093/jiplp/jpz006
  12. ↑ AS Ahluwalia v General Manager, Delhi, 29 (1986) DLT 143
  13. ↑ The Copyright Act, Section 63A
  14. ↑ Mannu Bhandari v. Kala Vikas Pictures, AIR 1978 DELHI 13.
  15. ↑ Garapati Prasad Rao v Parmand Saroja, AIR 1992 AP 230
  16. ↑ Amarnath Sehgal v. Union of India, 117 (2005) DLT 717
  17. ↑ Satraj Singh Pannu v Gurbani Media Pvt Ltd, 220 (2015) DLT 527.
  18. ↑ Mannu Bhandari v Kala Vikas Pictures, AIR 1987 DELHI 13
  19. ↑ ibid.
  20. ↑ Henris Balliu and Jona Bardhi, Analysis to what extent moral rights protect the author in the entertainment business, Dec 2017, Available at:https://www.mcser.org/ashess-conference/images/poster2017/Ejona%20Bardhi%20ICHSS7%202017.pdf
  21. ↑ Anurag K. Agarwal and SS Sagar Priyatham, Moral Rights in Copyright Law, 2003, Available at:https://www.ebc-india.com/lawyer/articles/2003v8a3.htm
  22. ↑ ibid.
  23. ↑ Sartaj Singh Pannu v Gurbani Pvt Ltd, 220 (2015) DLT 527.
  24. ↑ Gilliam v American Broadcasting Cos Inc., 538 F.2d 14 (1976)
  25. ↑ Cheffins v Stewart, 825 F.3d 588 (2016)
  26. ↑ Tobin v Trinity, 17 Civ. 2622.
  27. ↑ France Intellectual Property Code, Article 121-1
  28. ↑ Henris Balliu and Jona Bardhi, Analysis to what extent moral rights protect the author in the entertainment business, Dec 2017, Available at:https://www.mcser.org/ashess-conference/images/poster2017/Ejona%20Bardhi%20ICHSS7%202017.pdf
  29. ↑ Confetti Records v WarnerMusic UK Ltd., [2003] EWHC 1274
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