Moral Rights – as a vein of Copyright – are, essentially, personal rights vested in the author of original work and are inalienable. These rights are regarded as quintessential as they are known to fiercely protect authors. However, Moral Rights have always garnered a ground for debate for how much of scope they should be allowed in law, and subsequently in their application.
History is replete with cases, wherein authors or artists have invoked these rights to protect themselves from misrepresentation or wrongful attributions. For instance, recently the Mirzapur 2 creators came under siege for using a book titled, Dhabba as a prop along with a voiceover in a scene. The author of the book, Surendra Mohan Pathak, alleged misrepresentation of his work.
In a similar instance, a controversy stirred up when Javed Akhtar objected to him being attributed as the lyricist of the song 'Ishwar Allah' in the movie, PM Narendra Modi. Javed Akhtar was quick to condemn this attribution on Twitter and distanced himself from any contributions to the movie and the song.
Another famous case of moral rights infringement is the 2017 "Charging Bull against the Fearless Girl" controversy. In the instant case, a statue of 'the Fearless Girl' was installed in front of the 'Charging Bull'. The placement was such that it altered the meaning of the 'Charging Bull' to a representation of gender-based oppression. The artist of the 'Charging Bull' took objection to this alteration of context as his intent for the aforementioned statute was to show the resilience of the American Economy.
The cases illustrated above draw light on the importance of Moral Rights for the artists. In fact, it can be argued that these are important for they protect artists' 'freedom of expression', i.e., their art. However, this argument puts moral rights in a unique position of conflict between Copyrights and freedom of expression (particularly, free speech).
The blog herein will discuss at length on the concept of moral rights. Further, the author will put forth the doctrine of freedom of expression in the context of moral rights and the underlying conflict therein. The author herein will attempt to put forth certain proposals for resolving the said conflicts.
Moral Rights – Concept
Moral Rights derive their origin from the person hood theory. The theory postulates that the art or intellectual property is but an extension of its author's personality. This is to say that the author's personality is intricately threaded into the fabric of their artwork. This intimate connection of the artist with their art demands to be legally protected.
Furthermore, when dealing with moral rights, the term "art" and "artist" are both of profound importance for the nexus between the two hugely impacts the value of the intellectual property. This is to say that, it is important that the creation of the artwork is correctly attributed to its creator to ensure its authenticity and its value. This unique connection between the artist and their artwork creates an interest in protecting the integrity of the artist's work. Since moral rights maintain that artists are intimately bound to their artwork, and artists' reputation depends on their art and the art's value, on their artists.
This interest is widely accepted in most countries, and hence, Berne Convention through article 6 bis (1) makes it imperative for all its members to provide moral rights to artists. Since, India is a signatory of Berne Convention, Section 57 of the Copyright Act, 1957 broadly protects the moral rights of the artist. The rights guaranteed under this section can be broadly divided into (1) Right to integrity and (2) Right to attribution. The rights are perpetual and extend even after the termination of the copyright term vested with the author.
Additionally, moral rights are of huge significance to the authors because, as mentioned above, they are inalienable. Oftentimes, authors and artists because of their lack of legal awareness or financial constraints are highly susceptible to entering into contracts which might strip them off of their rights or might leave them with a shorter end of a bargain. Moral Rights ensure that artists are given the power to negotiate on terms which are fair to them.
Moral Rights of Integrity and the Artist's Freedom of Expression
It is a noteworthy argument that an artist's art is their instrument towards self-expression. Therefore, several scholars have put forth arguments stating that the right to integrity serves the purpose of protecting free speech or freedom of expression by giving the author autonomy.
Scholars like Spence put forth that moral rights are in consistency with free speech because it provides speakers with autonomy from participating in a public debate or from having their speech be distorted. While scholars like Huge define integrity as the ability of the public to identify the artist with their art.
Netanel argues that copyright ensures that the authors are adequately incentivised for their work by providing them with autonomy, encouraging new creation of art and inventions while enabling a "robust" democracy.
Therefore, any modification, mutilation or distortion of the original artwork amounts to infringement of the author's self-expression or free speech. This requires the presence of laws such as the right to integrity to ensure that the authors enjoy their rights to the full extent.
However, a very stringent interpretation of this law has the potential to threaten the very principles of freedom of expression that it attempts to protect. The conflict between copyright and free speech is discussed at length in the next section.
As has been established earlier the right to integrity and freedom of expression resolve into interplay with each other. Hence, it is pertinent that an author's integrity is protected.
However, this position soon warps and runs into conflict with itself. This is to say that while moral rights (especially, right to integrity) claim to protect freedom of expression, it also threatens it. If the scope of this right is left unchecked and stretched to no bounds it might create a space for creators which will fail to provide them with autonomy, discourage new creations, and hinder a democratic society. The right to integrity argument can be made from both the sides of the claim. This is the inherent and perpetual conflict that moral right runs into.
It is inarguably important that the artists must be given autonomy over their work, however, unchecked autonomy and exclusive control over one's work can warp the democratic values copyright claims to protect. Stringent, moral rights will make it difficult for subsequent creators to create new art. It would also be exceptionally difficult to critique any art, in such a scenario.
A strict interpretation of the right to integrity has the potential to create an environment which excludes downstream creators from engaging and creating in art, especially marginalised creators. Moreover, it will make the art widely inaccessible to a large number of people, which goes in direct conflict with the cultural theory.
The potential exploitation of marginalised downstream artists and restraining their free speech is especially idiosyncratic and relevant to how the Indian market works. The market is infamous for providing selective protection to a handful of established artists while stifling the free speech of the marginalised ones.
Therefore, it is pertinent that there be a balance between an artist's right to integrity and modifier's free speech.
Leslie Kim Treiger-Bar-Am elucidates ways in which this balance can be achieved. Treiger argues that the right to integrity should not be used to stifle excessive criticism. Another limitation introduced on the right to integrity is that the original or "primary" work should be allowed to be used if it is in a public forum. Moreover, the doctrine of freedom of expression must be applied from within the framework of the copyright law as opposed to from outside sources.
Moral Rights are profoundly important for primary artists as they ensure incentives and provide vulnerable artists with bargaining power while entering into contracts and markets. These rights are especially important for their flow with the theory of personhood. Moral Rights are important for they are consistent with the doctrine of freedom of expression. However, the right to integrity soon runs into a conflict for the freedom of expression can be made from both sides of the claim. Moreover, a stringent interpretation of the same runs in direct conflict with free speech. Therefore, there must be a balance between the right to the integrity of authors and free speech of modifiers.
Originally Published by Khurana & Khurana, December 2020
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