moral rights in copyright

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MORAL RIGHTS IN COPYRIGHT

Anju Srinivasan



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INTRODUCTION Copyright is a right granted to creators of literary,

dramatic, musical, computer and artistic works, and producers of cinematography films and sound recordings. It ensures safeguards of the author’s rights over their creations thereby protecting and rewarding creativity.

Human beings have fundamental rights that cannot be taken away from an individual’s decision. Moral rights are an embodiment of the natural rights of the artist over his creation. Moral rights of a person are the soul of his work, and that person has the right to preserve, protect and nurture his creations through moral rights.



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They are the rights that the creator is automatically

empowered with, the moment he creates it. The moral rights of a work can even remain with the creator after his death.

Moral rights should be viewed comprehensively. They represent vital social interests as they are primarily vested in authors. The creative impulse and work are of value to the society, through his work the artist provides an important service to the society.



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INSTANCE

C Subramania Bharati, a renowned Indian poet once

quoted a story where a poet went out for a walk and heard a local blacksmith sing a familiar song. The former recognized that it was his own composition, but not as he had written it. Strange words took the place of words he had written and the rhythm was distorted. Then the poet went into the blacksmiths store and rearranged all his tools On being questioned by the blacksmith as to why he was acting crazy, the poet stated; “I am doing to your property what you were doing to mine.” He confirmed that poetry was to him, what the property was to the blacksmith.



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IN LEGAL PARLANCE

Since 1928, the moral rights of attribution and integrity have been included in the most important international agreement of CR matters, ‘THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS’.

Article 27(2) of the Universal Declaration on Human rights provides that: ‘Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic protection of which he is the Author.’



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INDIAN COPYRIGHT ACT, 1957

Section 17 of the Copyright Act clearly states that

the author or creator of the work is the first owner of copyright. An exception to this rule is that the employer becomes the owner of the copyright where the employee creates a work in the course of and scope of employment.Section 57 of the Copyright Act provides for Author’s Special Rights. The language of section 57 is of wide aptitude and includes not just literary works but also visual and audio manifestations.



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KINDS OF MORAL RIGHTS

The moral rights are as follows:

1.PATERNITY RIGHT (Right to claim authorship of the work)

2. INTEGRITY RIGHT (Right to protect his honor and reputation)

3.GENERAL RIGHTS (Not to have a work falsely attributed to him)



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PATERNITY RIGHT(THE RIGHT OF ATTRIBUTION) The right of attribution refered to as the right of

paternity is the right of authors to claim authorship of their works, It aims to determine whether and how the author’s name shall be affixed to the work. It establishes three separate but related protections.

First, that it is an author’s right to be made known to the public as the creator of the work. If the author so desires, his or her name must appear on all copies as well as advertising and other publicity for the work.

Second, that an author can prevent others from usurping his work by naming another person as the author. This allows the author to prevent plagiarism of the work.



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PATERNITY RIGHT CONTD.

Finally, an author can prevent others from wrongly attributing to him a work he has not written. This prevents the author from false attribution of authorship and from being named as the author of a work that has been mutilated.

The right of paternity refers to the right of an author to claim authorship of a work and a right to prevent all others from claiming authorship of his work.



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THE RIGHT OF

INTEGRITY The notion of right of integrity is that since the work of

art is an expression of the artist’s personality, distortion, dismemberment or misrepresentation of the work mistreats an expression of the artist’s personality, affects his artistic identity, personality and honor, and thus impairs a legally protected personality interest.

Right of integrity empowers the author to prevent distortion, mutilation or other alterations of his work or any other action in relation to the said work which would be prejudicial to his honor and reputation.



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RIGHT OF INTEGRITY CONTD.

The right provides authors with a right to prohibit

modifications of their works without their consent regardless of whether the modification would negatively impact or objectively improve the work. This right provides the artist with general protection against any substantial modification.



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GENERAL RIGHTS

The right to create a work, the right to publish a work, the right to withdraw a public work from sale, the right to prevent excessive criticism of a work, and the right to prevent any other violation of an author’s personality are the additional moral rights that exist in some circumstances. Free consent, privacy, conscience, free speech, due process, life and safety are some of the rights that attribute to an individual’s moral rights.



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CASE LAW

BEFORE THE DELHI HIGH COURT

Amar Nath Seghal v. Union of India (2002(2) ARBLR130 (Delhi) - 2005(30) PTC253 (Del)



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FACTS AND RULING

This case discusses the issue of moral rights in substantial detail. In this the plaintiff is a sculptor that was commissioned by the Government of India to create a bronze mural, and in turn assigned his Copyright in the mural to the Government. The mural was placed on display as a prominent part of the Country’s national heritage, but was later pulled down and dumped. The plaintiff Amar Nath Seghal sued for violation of his rights. This case was filed in the 90’s and an interim injunction was passed in favor of the Plaintiff. The defendants argued that the plaintiff had assigned his copyrights to them and having purchased the same, the defendants could deal with the mural in question in a way they chose to.



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In 2005, the Court dismissed the case and observed that the moral rights are independent of the author’s copyright. They exist even after the assignment of the copyright, wholly or partially.

It can be inferred from the present case that the Court was of the view that once a work is assigned and displayed in a prominent place, a removal from such place in a disrespectful manner that mutilates the work is a violation of one’s moral right.



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COMMENTS I hold an opinion in variance to what has been held. The

decision also spoke of protection of cultural heritage of the country which could be found in the mural. The authority of rights stemming from the case seems slightly problematic as the judges also bring in the unrelated irrelevant cultural heritage aspect to justify the right of display. I fail to understand how this attributes to form a moral right as it is unfair to compel someone to display your work under the guise of moral right, which actually amounts to coercion.



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AMERICAN COPYRIGHT

Unlike the position of law in India, in America Section 106 A of the American Copyright provides for waiver of moral rights. It is also pertinent to note that the concept of moral rights is restricted by Visual Artists Rights Act (VARA) of 1990 and the Copyright Act to Visual Artists only. Thus the scope of moral rights in America is far more restricted.



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VISHAKA V. STATE OF RAJASTHAN SUPREME COURT (1996)

The Court stated that provisions of International Conventions can be read into the Constitution where there is no contrary domestic law in the field.



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CONCLUSION New technology is like a river that has burst its banks. In each

country where moral rights are protected, the nuances of interpretation reflect the unique qualities of its culture.

We have seen that moral rights comprise of the right of paternity and the right of integrity .The author of any work has the right to claim authorship over the work. He also has the right to restrain the distortion or mutilation of his work or to claim damages for the distortion even after assigning the copyright. If the assignee distorts the original work as a result of which the author’s right is harmed, then the author can sue for restraining such distortion and for damages.



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



Bangalore - 560 001.Tel: +91 - 80 - 6546 2400


Coimbatore – 641018.Tel: +91 - 422 - 6552921



Hyderabad - 500034. Tel: +91 - 40 - 6050 6009

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CONCLUSION It can be argued that Moral rights are akin to

fundamental rights granted by the constitution of India, in that they cannot be waived.

Enforcement of moral rights depends on educating the public. When it comes to moral rights, a new law without credibility in the public mind would be profoundly disappointing. Spreading awareness about the copyright issues among the legal fraternity would surely go a long way in providing proper and adequate recognition to the moral rights of creators.



Chennai - 600 004.Tel: +91 - 44 - 2498 4821



Bangalore - 560 001.Tel: +91 - 80 - 6546 2400


Coimbatore – 641018.Tel: +91 - 422 - 6552921



Hyderabad - 500034. Tel: +91 - 40 - 6050 6009

[email protected]


THANK YOU



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Bangalore - 560 001.Tel: +91 - 80 - 6546 2400


Coimbatore – 641018.Tel: +91 - 422 - 6552921



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DISCLAIMER

Any copyrighted material in this presentation is used in fair use for the purpose of study, review or critical analysis only, and will be removed at the request of the copyright owner(s).

moral rights in copyright

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