“Moral Rights” under Copyright Law: An Oxymoron?

The concept of moral rights under the law of copyright refers to certain moral entitlements an author possesses over his work apart from the economic rights. We know that economic rights like right to adaptation, translation, publication etc. are attached to the author until he transfers those rights through assignment or licensing. However, moral right stays with the author irrespective of economic rights, until the expiry of the copyright, even after his death.

• Jurisprudence of Moral Rights

In the United States, the jurisprudence of moral rights rested on either natural law theory or instrumentalist theory. According to the natural law theory, the author is considered to be the true owner of his work and no other person is entitled to take away the identity of the author attached to the work by misappropriation. However, the instrumentalists argue that since the state bestows “intellectual property rights” upon the author, the object of dissemination of information has to be achieved. Thus, the author may not restrict other individuals from free-riding over the idea and information discussed by the author through his work. [1]

The concept of moral rights in the European Intellectual Property law system, however, was influenced by Kant and Hegel (Jurists), who believed that mere possession of a work would not allow any individual to decide on the form of usage of that work. They suggested that the work of the author is the embodiment of his talent, attainment, erudition, etc. Hence, even if the author transfers certain rights, he may not wholly transfer certain “inalienable rights”. [2]

In practice, the concept of moral rights was recognized formerly under the French Law as “Droit Moral”. German and French courts identified the right of disclosure, right to correct or withdraw works previously disclosed to the public, right of attribution and the right to respect of the work, usually translated as the right of integrity. It was in the nineties, the American Courts embraced the concept of moral right in works of authorship. [3]

• International Recognition of Moral Rights

The Universal Declaration of Human Rights (proclaimed by the United Nations General Assembly in Paris on 10 December 1948) under Article 27 mentions as below:

“Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

Article 27 of the Universal Declaration of Human Rights prescribes the enjoyment of cultural rights; it insists, that is, that everyone has the right to participate in all forms of cultural life. As such, the article reflects one of the most important purposes and principles of the United Nations as described in the UN Charter Article 1(3). The exegesis of the second paragraph involves two ways of looking at intellectual property. One way makes this right look, to some extent, like a human right.[4]

Further, the Berne Convention for the Protection of Literary and Artistic Works (Paris Text 1971), under Article 6bis (1) mentions as below:

“Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the 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 honor or reputation.”

We can observe that the kind of right conferred under UDHR is positive in nature which allows everyone to protect their moral interest arising out of any literary works. However, the right conferred under the Berne Convention is mostly negative rights that and allows him to stop others from distorting, mutilating, or modifying his work.

• Moral Rights in India

India has been the Member of Berne Convention since 28th April, 1928. Thus, after the recognition of moral rights in 1971 at the international level, the concept of moral rights was adopted under section 57 of the Copyrights Act. According to section 57 of the Act:

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 if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation:

Provided that the author shall not have any right to restrain or claim damages in respect of any adaptation of a computer programme to which clause (aa) of sub-section (1) of section 52 applies.

Explanation.— Failure to display a work or to display it to the satisfaction of the author shall not be deemed to be an infringement of the rights conferred by this section.

(2) The right conferred upon an author of a work by sub-section (1), may be exercised by the legal representatives of the author.

The rights mentioned under Section 57(1) (a) which allows the author to claim authorship of his work may be referred to as “Paternity Rights” or “Rights of Attribution”. The Rights conferred under section 51(1) (b) may be termed as “Right of Integrity”.

Moral Rights have been upheld by Indian Courts in various instances and the landmark judgment of Amarnath Sehgal v. Union of India[5] by the Delhi High Court has emphasised the importance of right of integrity. Mr. Amarnath Sehgal had sculpted a mural for placing at the Vigyan Bhawan on the wall of the Lobby in the Convention hall at Delhi. But the government pulled down the sculpture from the walls of ‘Vigyan Bhawan’ and dumped it in the storeroom. Aggrieved by this, he approached the Delhi High Court. The Court emphasised that mural whatever be its form today is too precious to be reduced to scrap and languish in the warehouse of the Government of India. Further, the court also stated that it is only Mr. Sehgal who had the right to recreate his work and therefore has the right to receive the broken down mural. He was also compensated for the loss of reputation, honour and mental injury due to the offending acts of the government.

However, in another case of Raj Rewal v. Union of India[6], Raj Rewal 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 Delhi High Court took a different approach in the instant case and 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.

• Conclusion

The major concern that arises out of the application of moral rights is the “subjectivity” that is attached to the term “morality”. The scale of measuring the level of damage caused to the author is based on the judge’s opinion in different cases. “Rights” is an objective term that defines certain claims an individual can make. “Legal Rights” are those rights that are recognized by the legislature of any state and secured by individuals as an entitlement. However, moral rights or natural rights are those which the society defines and depends on what the society thinks to be appropriate at different times. By adopting “moral rights” under legislatures like copyright law, it easily allows individuals to approach courts. But again what may be appropriate to a few authors may not be for a few others. Few authors may ever waive their moral rights along with their economic rights which form another major topic of discussion.

However, another thought which arises today is the changing dynamics of law of copyrights in a capitalistic market set-up. Copyrights rather than achieving the object of dissemination of ideas and information, has shifted towards monetary approach. Does “moral rights” fit into today’s capitalistic world? Can the author, after obtaining the monetary benefits, dictate the “proper” usage of his work? If not for Amarnath Sehgal, who was a world famous sculptor, would the Delhi High Court take the same stance of returning the work back to the author? Is “Moral Right” an oxymoron under Copyright law?

[1] Neil Weinstock Netanel, Copyright and a Democratic Civil Society, 106 Yale L.J. 283, 308- 11 (1996)

[2] G.W.F. Hegel, Philosophy of Right ss 44, 50, 51-58 (T.M. Knox trans., Oxford Univ. Press 1952) (1821); Immanuel Kant, The Philosophy of Law 81-84 (W. Hastie trans., Augustus M. Kelley Publishers 1974) (1796)

[3] Pragmatism, Economics, And The Droit Moral Thomas F. Cotter, 76 N.C. L. Rev. 1, North Carolina Law Review, November, 1997 Available at: https://cyber.harvard.edu/metaschool/fisher/integrity/Links/Articles/cotter.html#anchor1659143 [4] Goran Melander in Asbjorn Eide et al, Eds., The Universal Declaration of Human Rights: A Commentary (1992) 429-30.

[5] Amar Nath Sehgal vs Union Of India [17 (2005) DLT 717, 2005 (30) PTC 253 Del]

[6] CS(COMM) 3/2018, with IA Nos. 90 and 92 of 2018