India: Volatility Of Perceptions On Moral Rights: India's Approach

Last Updated: 2 August 2019
Article by Harshada Wadkar and Akanksha Badika

The soul is a blissful means of self-identification, embezzling one's soul leaves the body lifeless and makes the thief dubious of his own subsistence.

Moral rights have been associated with jurisprudential theory of property wherein one's property is viewed to be nothing but an extension of his personality. The work one creates is nothing but his soul that jots down its existence on something tangible to express what his mind has thoughtfully created, if somebody takes away such creation, it is robbing off somebody's soul that had articulated itself in the creation and the robber becomes doubtful about his own essence in himself. This is how an artist views stealth of his expression by another as originality is unceasing eloquence of the self.

Introduction

Moral rights have always been heavily emphasized as these are something which even if the Law would not have provided for but would have subsisted by virtue of being a creation by its creator. India has sometimes positively protected author's moral rights and at times been stringent in its approach towards recognizing them. Sec. 57 of the Indian Copyright Act deals with moral rights, wherein authors have been granted the right to attribution/ paternity and the right of integrity. Right of attribution deals with the right to be attributed as the author of a work and prevent others from being associated with such work, whereas right of integrity, as the name suggests, deals with the right to object to distortion, mutilation and modification which may harm the reputation of the author. It is interesting to note how approach differs with person to person, some accentuate it more in order to give Sec. 57 the meaning for which it has been embodied in the Copyright Act whereas some value other rights more. This can be illustrated by the conflicting dictums passed by the Delhi High Court in the judgements of Amarnath Sehgal v. Union of India (117 (2005) DLT 717) and Raj Rewal v. Union of India (CS(COMM) No.3/2018.), which give diametrically opposite views on the concept of moral rights and its value.

Article 6bis of the Berne Convention for Protection of Literary and Artistic Works, which also adds that even after assignment of economic rights in a work wholly/partially moral rights subsist with the first owner or the author of the work, recognizing the importance of such an inalienable right. The Article juxtaposes the importance of moral rights in digital India, where accessibility burgeons with the click of a mouse and highlights how the perceptions differ in view of facts and circumstances of a case with the aid of two conflicting aforesaid judgements.

Who Owns Moral Rights?

Copyrights are owned by the author; hence the author becomes the first owner of the copyright as per Sec. 17 of the Indian Copyright Act, which deals specifically with ownership of Copyrights in a work. The proviso to Sec. 17, however clarifies that such ownership vests with the employer, in case the employee was the one hired for such particular services as a result of which such creation was born. However, the author of any work always has the moral rights associated with such work, which never get disassociated with its author even if he/she totally/partially assign economic rights of the work as was discussed in Mannu Bhandari v. Kala Vikas Pictures (P) Ltd. (AIR 1987 Delhi 13).

If we talk about such concept with regards to architecture, Sec. 17 makes the architect, being the author of the architectural design, the first owner, however if he is hired by an organization to construct the building, then the copyright subsists with the organization as it is the employer. However, moral rights with regards to the right of attribution and integrity subsist with the architect. It is pertinent to note concepts of moral rights and that of its ownership with the illustrations of two conflicting judgements.

Varying Perceptions on Moral Rights

The judgements of Amarnath Sehgal v. Union of India and Raj Rewal v. Union of India are a study in contrast, with varying perceptions on moral rights, though there were material differences in the approach and facts and circumstances, however the way judges perceived the concept of moral rights shows stark contrast. It is pertinent to delve into the facts, issues and the judgement handed down in each case to understand their approach towards moral rights.

In Amarnath Sehgal v. Union of India, Amarnath Sehgal, the plaintiff, was an artist and sculptor of international repute and was called by the Government of India to build a mural in the lobby of Vigyan Bhawan, which otherwise was a soulless center, it was the time wherein India was developing culturally, there were national and international conferences being held in the international convention hall. This embellishment on national architecture became a part of the Indian art heritage. Unfortunately, in 1979, the mural was removed and consigned to the storeroom of the Union without giving any notice or taking any authorization from plaintiff. When plaintiff was apprised of such unauthorized removal, he made representations to the requisite government authorities for restoration of the mural, but none were of any help. As this act of destruction of the mural caused damage to the sculpture. Hence, he filed a petition under Section 57 of the Copyright Act, 1957, which relate to moral rights of an author, in the Delhi High Court and prayed for a public apology from the defendants, a permanent injunction to restrain them from distorting, mutilating or damaging the plaintiff's mural and damages of Rs. 50 lacs. The issue which arose was that of moral rights, whether the plaintiff can claim moral rights over the mural as proviso to Sec. 17 clearly states that the employer would be the first owner of copyright as the plaintiff just acted as an employee of the defendant, however being the author of the design, moral rights should have subsisted in him as discussed by Binny Kalra in his article in the WIPO Magazine.

The court ruled that even though the ownership of copyright in the mural did not vest with the plaintiff, however as he the author of the copyrighted work, moral rights did subsist in him. He termed moral rights to be the soul of author's works and observed,

"The author has a right to preserve, protect and nurture his creations through his moral rights. A creative individual is uniquely invested with the power and mystique of original genius, creating a privileged relationship between a creative author and his work".

Further, the language of Section 57 relating to moral rights of an author, entitles the author to legally protect the cultural heritage of India through the moral rights of the artist. Elucidating upon the nexus between intellectual property and knowledge, the court observed:

"Intellectual property and knowledge are interconnected. Intellectual property embodies traditional thought and knowledge with value addition. Thus, physical destruction or loss of intellectual property has far reaching social consequence. Knowledge which has grown with it is also lost."

The Court ruled that moral rights in the work of art acquire the status of the cultural heritage of the nation and India being a signatory to many conventions, it would be the compulsion and the responsibility of the state to protect such work. The defendant has not only violated moral rights of the author but had trampled the cultural spirit of the nation. Hence, the plaintiff was granted damages of 5 lacs and a permanent injunction and the right to restore the mural.

In yet another judgement of Raj Rewal v. Union of India, which is a recent judgement delivered by J. End law of Delhi HC, moral rights of the author of Hall of Nations, a building in Pragati Maidan, Delhi were at stake. The plaintiff was called upon by the Indian Trade Promotion Organization (ITPO), the defendant in 1979 to build the Hall of Nations to mark cultural progression on 25th Independence Day of India. The Hall of Nations was built using the space frame structure, not only for the roof but also for adjacent anchoring walls, using concrete, it was also recognized as a site for cultural heritage. However, in 2017, the Hall of Nations was demolished in order to build another complex. The plaintiff made various representations to the Government and had filed various petitioner but all in vain. The plaintiff had then approached the Delhi High Court to claim damages from the defendants as demolishing his work caused harm to his reputation. The issues at hand was, whether any moral rights subsisted with the plaintiff as ITPO was the owner of the Hall of Nations and whether moral rights are a hindrance to right to property, which is a constitutional right enshrined in Art. 300A of the Constitution and in that case, which prevails.

The court ruled that the Hall of Nations was a property owned by ITPO and the moral rights of the plaintiff are in direct conflict with the defendant's right to property, which is a constitutional right. Moral rights did subsist in the plaintiff as these are the rights granted by virtue of being the author of a work. However, the Copyright Act or any legislation can never be supreme to the Constitution as it is the source of every law in this country. Hence moral rights cannot hinder the right to property of the defendant, which is constitutional right.

The court accordingly observed,

The implementation / transformation into a building of the work of architecture is governed by other laws viz. The laws relating to town planning, building byelaws, environmental laws and laws protecting the rights of owners of adjoining buildings. It is thus not necessary that the building or the structure constructed is always a true reflection of the drawings or the designs authored by the architect. Though the architects are expected to provide the drawings and designs in compliance of such laws but in a given case, it may not be so and the modifications, which the owners are required to make in complying with other laws or for other valid reasons, cannot, in my view, be objected to by the architect.

Analysis

Both these judgements are a stark study in contrast as the interpretation of the word 'mutilation' was literal in Rewal's judgement and all the more liberal in Sehgal's case. Both these judgements had different approaches to moral rights based on the facts and rights affected of the parties. In Sehgal's case, the court observed,

Should right to assert authorship in a work, include a right to object to distortion, mutilation or modification in a work? Why not, if it is prejudicial to the honour or reputation of the author. The contours, the hue and the colours of the original work, if tinkered, may distort the ethos of the work. Distorted and displayed, the viewer may form a poor impression of the author. A good name is worth more than good riches. (Shakespear's Othello, act-ii, scene III, pp.167):-
good name in man and woman, dear my lord is the immediate jewel of their souls;
who steals my purse, steals trash;
its something nothing;
t'was mine, t'is, and has been slave to thousands;
but he that filches from me my good name, robs me of that which not enriches him and makes me poor indeed.

The approach to moral rights had differed significantly as in this case, no right to property angle was ever scrutinized, not even considered that moral rights have become a hindrance to right to property, however Rewal's judgement clearly points out that right to property, being a constitutional rights stands on a higher pedestal than rights granted by the copyright Act, 1957. J. Endlaw in Rewal's case had clearly mentioned that Sehgal's case would be inappropriate to cite as a mural is very different from an architectural design like a building, however one should not forget they come under the same category of copyright protection, namely 'Artistic Work'.

Conclusion

Moral rights have always been a bone of contention and very subjective, however they are truly an extension of one's personality as they remain the most basic right and remain with the author even after assignment of economic right partially/ wholly which vest in the copyright owner. The judgement in Sehgal's case and Rewal's case have just depicted how subjective moral rights can be, one of them recognizing it, the other giving it a lower a pedestal as compared to other rights which subsist with the owner of a property.

It has become significant to recognize in this era where information disseminates at the click of a mouse, where it is a challenge to protect one's moral rights as distortion or modification is easy to make as there is widespread accessibility of any author's content on the web. India has taken a way to recognize moral rights but to also preserve other rights which are vested in one by the constitution, in order to not make Sec. 57 nugatory, a harmonious construction of interpreting various rights needs to be looked into otherwise there would remain no ways to reconcile varying perceptions on moral rights in India.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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