MORAL RIGHTS OF AN AUTHOR
Moral rights stand for what are termed as “Author’s Special Rights”. Founded on Article 6bis of the Berne,,moral rights protect attribution and integrity, stating:
“Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation.”
The legislation of different countries varies on author’s power to waive his moral rights. At one end, there are some countries, like France, that impose a virtually absolute bar on transfer or the waiver of such rights. At the other end there are common law countries which freely allow the waiver of moral rights.
INDIAN PRESPECTIVE
Section 57 of the Indian Copyright Act, 1957 provides for moral rights-
Author’s 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-
a. To claim authorship of the work; and
b. to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation.
Amar Nath Seghal v. Union of Indiadiscusses the issue of moral rights in substantial detail. In this case, the plaintiff/author assigned his copyright in a bronze mural, to the Union of India. The mural was placed in Vigyan Bhavan, but was later pulled down and dumped. The author, Amar Nath Seghal, sued for violation of his moral rights.
The case was filed in the early 90’s and an interim injunction was passed in favour of the Plaintiff. In response, the defendants made an application under the Arbitration Act, 1940 seeking stay of proceedings in the suit claiming that the dispute ought to be referred to arbitration in the light of a term in the assignment requiring arbitration of all disputes.
The defendants further argued that “the plaintiff had assigned his copyrights to the defendants and having purchased the same, the defendants are under no fetters while dealing with the mural in question.”
The defendants further argued that “the plaintiff had assigned his copyrights to the defendants and having purchased the same, the defendants are under no fetters while dealing with the mural in question.”
The interim application was decided in 2002 and the case itself was finally decided in 2005. The court dismissed the claim under the Arbitration Act and further observed: “These [moral] rights are independent of the author's copyright. They exist even after the assignment of the copyright, either wholly or partially.”
Smt. Mannu Bhandari v. Kala Vikash Pictures Pvt. Ltd. and Anr. (1986)
“Section 57 confers additional rights on the author of a literary work as compared to the owner of a general copyright. The special protection of the intellectual property is emphasised by the fact that the remedies of a restraint order or damages can be claimed "even after the assignment either wholly or partially of the said copyright...” Section 57 thus clearly overrides the terms of the Contract of assignment of the copyright. To put it differently, the contract of assignment would be read subject to the provisions of Section 57 and the terms of contract cannot negate the special rights and remedies guaranteed by Section 57. The Contract of Assignment will have to be so construed as to be consistent with Section 57. The assignee of a copyright cannot claim any rights or immunities based on the contract which are inconsistent with the provisions of Section 57.”
“Section 57 confers additional rights on the author of a literary work as compared to the owner of a general copyright. The special protection of the intellectual property is emphasised by the fact that the remedies of a restraint order or damages can be claimed "even after the assignment either wholly or partially of the said copyright...” Section 57 thus clearly overrides the terms of the Contract of assignment of the copyright. To put it differently, the contract of assignment would be read subject to the provisions of Section 57 and the terms of contract cannot negate the special rights and remedies guaranteed by Section 57. The Contract of Assignment will have to be so construed as to be consistent with Section 57. The assignee of a copyright cannot claim any rights or immunities based on the contract which are inconsistent with the provisions of Section 57.”
The 3 idiots controversy
on the current controversy over the credits for the movie "3 Idiots".the author, in this instance, a fairly well known and popular author Mr. Chetan Bhagat, contract away his "moral rights" specifically, and not through the mode of assignment of copyrights of the work? Nothing in our Copyright Law (Section 57 or otherwise) prevents an author from specifically agreeing not to enforce the applicable "moral rights" over a particular work - what can legally be termed as a waiver. In the interests of "IP safety", is it not feasible to have a contract with the author, to the effect, accepting that there are similarities and precluding the author from interfering with the commercial exploitation of a story that is otherwise original and independent of the published work. Of course, it is a separate issue, to be conclusively settled through litigation, as to whether the similarities are so substantial as to constitute a violation of the copyrights of the author
It is indeed more in societal and public interest that "moral rights" have been evolved into legally enforceable format, otherwise, people with economic power suffocate creative individuals under the might of copyrights. Therefore, in pursuance of the terminology employed, "moral rights" are historically justified as bearing an independent existence in contrast to the economic value of copyrights. However, what we perhaps need to realize is that the legal recognition of "moral rights" is still not sufficiently immune from individual author's freedom to contract. Ironically, the concept of "moral rights" in the world of IPR enforcement is today considered as an idiosyncracy- adding more value to the tale of "3 Idiots".
