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When Property Rights and Moral Rights Collide

Comparing intellectual property rights against property rights

The term “property” denotes anything that can be owned. Public goods like clean air, drinking water, and roadways cannot be owned. However, private goods like land, and tangible objects like houses and cars, due to their excludable and rivalrous nature, can be owned. Property rights provide an owner of a property with rights, including the right to buy, sell, use, destroy, merely possess the property in question, or exclude others from it.

Now, specific questions may arise in readers’ minds: What about Intellectual Property (IP)? It is not excludable or rivalrous. How can something that possesses a “public goods character” be owned? To address this problem, it must be remembered that ideas and innovation cannot inherently receive protection. They are, of course, important steps to put an invention on the market, but expressions or manifestations of ideas and innovation are typically the subject matter of IP protection.

For all we know, Edison’s scientific equipment (tangible property) may not even have been his own when he invented his improvement in electric lamps. However, he owned its patent (intangible/ intellectual property). Property rights and IP rights are thus clearly distinct from each other in terms of subject matter, type, and duration of protection. A murky area of conflict between the two lies in architectural works.

How are architectural works protected under the Copyright Act, 1957?

An amendment to the Berne Convention in 1908 mandates member states to provide copyright protection to architectural works in the category of “literary and artistic works” [Article 2(1)]. As a signatory to the Convention, India affords protection to architectural works under Sections 2(b) and 2(c)(ii) read with Sections 13(2)(ii) and 13(2)(iii) of the Copyright Act, 1957 (“the Act”). According to section 13(1)(a) of the Act, copyright subsists in these original works with the architect irrespective of the medium (including, in this case, land belonging to another).

Two kinds of rights accrue from a copyright; namely, economic rights and moral rights. By virtue of architectural works’ ability to be copyrighted, they too have a moral rights aspect, which means that despite the surrender of economic rights, an author can enforce her moral rights. Moral rights arise out of the fact that an author is the very creator of her work. Moral rights encompass i) the right of paternity, which mandates an artist’s attribution to her work when her work is reproduced or disseminated, and ii) the right of integrity, which seeks to protect an author’s reputation in penalising mutilation, distortion, and derogatory modification of her work.

Courts across the world have ruled on the debate between moral rights and property rights in architectural works. Two such judgements have briefly been analysed to help readers understand their intriguing perspectives.

Understanding judiciaries’ perspectives on the moral rights of architects

In May 2019, the Delhi High Court through Raj Rewal v. Union of India CS (COMM) 3/2018 addressed whether an architect can restrain the destruction of his copyrighted work (buildings and construction) built on a piece of land of which he is not the owner. Answering in the negative, the Court held that the plaintiff could not allege a violation of his moral rights under Section 57 of the Act when it concerned the demolition of the Hall of Nations in New Delhi because the acts of demolition, or not displaying a work could constitute a moral right violation.

The Court noted that the right to property is a constitutional and human right, whereas moral rights are statutory, implying that the former would always prevail. The Court also cited Section 52(1)(x) of the Act, which states that reconstruction (especially urban planning and technical or economic reasons for modification and demolition) would not constitute copyright infringement, due to which the plaintiff was denied an interim injunction to restore the building.

Like the US’ Visual Artists Rights Act (VARA), Australia uses an innovative approach to counterbalance the supremacy of the right to property while protecting an architect’s right to integrity. It persuades building owners, through the law, that they are not compelled to consult the architect regarding demolition and modification.

5Pointz, AKA the “Mecca” or the “United Nations” of graffiti art, was a defunct factory building known for its murals. The owner of the building, Mr. Wolkoff, in the 1990s, agreed to allow the building to be used to showcase the work of local graffiti artists. Dubbed “5Pointz” in 2002 by its de facto curator, Meres One, it turned into a world-famous “aerosol art centre”. A year prior to when Mr. Wolkoff authorised the murals’ whitewashing in 2014, artists attempted to restrain the same, culminating in Cohen and Ors v. G&M Realty LP and Ors (5Pointz Case) [Unreported, EDNY 2018] .

However, the court refused to grant an injunction. Interestingly, not only had Mr. Wolkoff approved of the art, he was also profiting off of it (its value grew from merely $40 million before its landmark status, to $200 before the artwork was destroyed). Twenty-one artists whose work was destroyed instituted a suit claiming violations under VARA. VARA allows visual artists to sue on the basis of moral rights infringement and against the destruction of “works of recognised stature”. VARA preserves these rights between artists and their work, regardless of the owner's identity or who owns the medium on which the work is fixed.

Having been tried before an advisory civil jury in 2017, which unanimously favoured the artists, it was conceded by both parties that the judge’s decision would be final. In a 100-page decision that Mr. Wolkoff had willfully and illegally destroyed the art in failing to fulfil the 90 days’ notice (or make a bona fide attempt to do so) requirement before demolition, Judge Block made some interesting observations. Faced with several subjective decisions to be made, the judge held that 45 graffiti works on the building were of recognised stature, and that Wolkoff would have to pay the affected artists the highest statutory damages of $6.75 million due to the wilful nature of the VARA infringement. Had Mr. Wolkoff given the 90 days’ notice, he would have been able to handle his property as he would have willed.

In 2020, Mr. Wolkoff passed away. His real-estate company, G&M Realty, replaced him in the suit, which filed an appeal to the US Supreme Court to reconsider the above decision. The appeal was denied without being given any justifications..

What do these decisions mean for stakeholders?

In illustrating contrasting positions on the debate between moral and property rights, Raj Rewal and 5Pointz tell the stories of two iconic works of art from their inceptions in rather unconventional media – the former as architecture, and the latter as graffiti on the walls of a private-owned, derelict factory building. India’s stance on moral rights at first glance, may attract criticism – nevertheless, it is important to understand its jurisprudence. The right to property may not be a fundamental right in India, possesses a valuable constitutional right nature, as reiterated in B. K. Ravichandra v. Union Of India (Civil Appeal No. 1460/2010). Tracking the Indian Supreme Court’s judgements reveals a pattern of property rights shielded by the rule of law.

An implication of the 5Pointz decision may be real estate owners’ possible fear of displaying certain forms of art, thereby affecting artists’ market for sales and resulting in a huge blow to the process of cultural enrichment. The US copyright laws and VARA form a cooperative bond that fosters creativity.

Some argue that architect-designed works are accompanied by hassling moral rights issues that waste time and money – at what point precisely can moral rights holders enforce their rights? Is the only form of attribution the kind that the US and Australia employ? In a situation where a team of architects is involved, would their individual consent be required? Can we replace copyright mechanisms with contractual clauses that set out liabilities as a solution? If so, what would the effects of such an arrangement be? These are some questions whose answers require precedent to reveal where moral rights jurisprudence is heading, and India has successfully taken a step closer to the answer through Raj Rewal.












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