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Moral Rights in Copyright Law
by Anurag K. Agarwal†
& S.S. Sagar Priyatham††
Cite as : (2003) 8 SCC (Jour) 3
Introduction
Moral rights1 are representative of social values concerning authorship, creativity and artistic work. They are based on a belief that artistic creation is something more than an attempt to earn a livelihood. The creative act results in a special relationship between the creator and his work. Both the creative impulse and the work are of value to society; through his work, the artist provides an important service to society. By recognizing these aspects of artistic life, moral rights bring a cultural focus to copyright law. They allow copyright to balance more effectively the diverse and potentially opposing interests involved in creating, publicizing, experiencing and using an artistic work.
In the international drive towards standardization of copyright norms, one aspect of copyright law remains conspicuously exempt. This is the area of droit moral or “moral rights”, which offers legal protection for the personal, “moral” interests of authors and artists in their works. Interestingly, an author’s moral rights have been recognized as especially important for the protection of creativity in the environment of digital technology. However, moral rights have generated persistent international controversy and efforts to harmonize protection have been consistently unsuccessful. International copyright standards have largely been developed through three distinct processes: the TRIPs/WTO system, the World Intellectual Property Organization (WIPO), and the Copyright Harmonization Directives of the European Union, whose international influence far exceeds their regional effects. In all three processes, attempts have been made to include moral rights, but none of them has been able even to generate a proposal for an internationally viable standard.
A continental European concept
Moral rights derive from the continental European or “author’s rights” tradition in intellectual property law, which differs in many ways from the Anglo-American tradition emphasizing the economic function of intellectual property.
The term “moral rights” comes from the French droit moral. These moral rights are:
1. Droit de divulgation: “the right of publication”. It gives the author the right to decide whether to publish or not to publish the work.
2. Droit a la paternite: “the right of paternity”. It gives the author the right to claim authorship of a published or exhibited work.
3. Droit au respect de loeuvre: “the right of integrity”. It gives the author the right to prevent alteration and other actions that may damage the author’s honour or reputation.
In the legislative schemes of French and German law and their many derivatives, moral rights rank as a category at least the equal of economic rights. However, the two schemes differ in the basic assumption — French law renders moral rights perpetual as well as inalienable (in some sense), thus creating a necessary duality between economic and moral rights, whereas German law gives both moral and economic rights the same duration and treats them monastically as branches of the same tree.
Moral rights in the continental tradition are normally thought to be “inalienable”. The Berne Convention speaks of an author retaining such rights even after relinquishing the copyright. Raymond Sarraute2 refers to them as the “inalienable, unbarrable and perpetual nature of the French moral right”.
Anglo-American law
The Anglo-American tradition has manifested certain skepticism towards claims that authors deserve special protection in law. Moral rights have always been quite controversial in the United States. They raise a host of difficult philosophical and implementational questions. The most obvious among them is the issue of the interference of moral rights with the free licensing of works of intellectual property of giving the creator a continual “veto power” over editing and publication. The sanctity of contract has diminished by some degree due to broader notions of fiduciary responsibility. There is a general reluctance on the part of the entrepreneurial lobby to accept the priority given to higher dictates of good faith, propriety and fairness over the bargaining of the marketplace.
In the United States, protection of moral rights has historically been sporadic. The copyright law did not grant any explicit moral rights protection until 1990. Instead, whatever moral rights protection existed resulted from a combination of State statutes and isolated judicial readings of both the federal copyright and trademark statutes.
In 1976, the British comedy group Monty Python sued to prevent ABC from broadcasting edited versions of their television series Monty Python’s Flying Circus.
The Second Circuit held that:3
“… The cuts made constituted an actionable mutilation of Monty Python’s work. This cause of action, which seeks redress for defamation of an artist’s work, finds its roots in the continental concept of droit moral, or moral right, which may generally be summarized as including the right of the artist to have his work attributed to him in the form in which he created it.
American copyright law, as presently written does not recognize moral rights or provide a cause of action for their violation, since the law seeks to vindicate the economic rather than the personal rights of authors. Nevertheless, the economic incentive for artistic and intellectual creation that serves as the foundation for American copyright law cannot be reconciled with the inability of artist to obtain relief for mutilation or misrepresentation of their work to the public….”
In 1990, the United States recognized, for the first time, a limited set of moral rights for a limited class of works. These were set out in the “Visual Artists Rights Act” of 1990, and are now embodied in Section 106-A of the American Copyright Act of 1976.4 However, there are significant limitations on these rights, which make them a much more limited right than that exists in Europe. For example, a classic “moral rights” case involved Picasso’s painting Trois Femmes. The painting was cut into one-inch squares by two art investors and sold as “Original Picassos”. Because Picasso was dead when this occurred, Section 106-A would not prohibit it.5
Section 106-A does not extend to a host of works such as films that are protected under European moral rights regime. A French court decided to bar showing of “colourised” version of a film made in black and white by director John Huston.6
Huston decision6 is considered a triumph for moral rights doctrine. Huston’s film, Asphalt Jungle, was subject to American contractual arrangements allowing the addition of colour. However, so fundamental was the moral right adjudged that the colourisation of this black and white film was actionable by the director’s personal representatives. Such an action would not have been and is not possible in the US.
In 1977, the Whitford Committee drawing attention to the Dutch law as a model accepted that moral rights should be translated into British legislation7 to a reasonable extent. The task was to attain a fine balance between due respect for freedom and sanctity of contract and the moral rights of artists. It took 11 years to get these rights into the 1988 Act, which defines four distinct moral rights, the first two of which are in fulfilment of the Berne Convention obligation:
(1) the right of paternity;
(2) the right of integrity;
(3) the right against false attribution of a work;
(4) the right to privacy in private photographs and film.
Moral rights and the ambiguity in TRIPS
Since 1886, the author’s rights have been the subject of the Berne Convention for the Protection of Literary and Artistic Works. It is one of the remarkable conventions as regards copyrights. To a lesser extent, these rights are also subject to the Universal Copyright Convention of 1952 (UCC). The so-called “neighbouring” or “related” rights are partly covered by the Rome Convention for the Protection of Performers, Phonograms and Broadcasting Organizations of 1961.
Considerable concessions for developing countries were moulded into a Protocol to the Berne Convention at the Stockholm Revision in 1967. These proved more than the traditional publishing States — mostly developed countries — could take. As it became clear that the Stockholm version would not be supported, a further revision conference was called in 1971 in Paris. It toned down the special concessions provided earlier in the Stockholm Revision.
At present, Article 6bis(1) of the Berne Convention provides:
“Independently of the author’s economic rights, and even after the transfer of 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 honour or reputation.”
The British incorporated the provision of Article 6bis(1) through the Copyright, Design and Patents Act, 1988 (British Act).
Upon ratifying the Berne Convention, the American Congress concluded that the existing Federal and State protections satisfied Article 6bis obligations, however, some of these rights were for the first time recognized in 1990.8
Article 9(1) of the TRIPS Agreement provides:
“Members shall comply with Articles 1-21 and the Appendix of the Berne Convention (1971). However, members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom.”
(emphasis supplied)
Three main considerations may provide an answer for the non-inclusion of “moral rights” in the TRIPS Agreement:
First, although most common law countries have adopted the moral rights provision, the tensions between copyright and author’s rights system have not disappeared. The persistence of conceptual differences about the appropriate form of copyright law is apparent in the incomplete and unsatisfactory codification of moral rights in the common law system.
Secondly, the reason for legislation about moral rights has been a degree of concern about their economic effects. Here, the common law countries have been most fearful about the practical consequences of introducing protection for moral rights into systems that traditionally emphasize economic rights.
Finally, the exclusion of moral rights from international harmonization efforts may have to do with a fundamental incompatibility between the philosophy of moral rights and the commercial thrust of the international copyright regime.
This is a setback to the recognition of moral rights across the globe. It had been after a great deal of intense debates throughout the world that the representative voices of authors insisting that all systems should have a structured set of rules on moral rights in place, the moral rights had found a place in the British and American legislations. Ironically, this provision of TRIPS negates the moral rights and pushes them on the back seat. This trend is quite disturbing because economic rights without being accompanied by moral rights are just like a body without a soul.
Position in India
The copyright law in India9 is quite old and the Indian judiciary, in spite of many challenges, had always strived for protecting the rights of authors. Some of the abovementioned moral rights have statutory recognition in India under Section 57 of the Indian Copyright Act, 1957. This section provides an exception to the rule that after an author has parted with his rights in favour of a publisher or other person, the latter alone is entitled to sue in respect of infringement. The author retains the special rights even after the assignment of the copyright. The principle underlying this section is that damage to the reputation of an author is something apart from infringement of the work itself.
A few illustrious cases are:
(1) Mannu Bhandari v. Kala Vikas Pictures (P) Ltd.10
The defendant had produced the motion picture Samay Ki Dhara under assignment of filming rights of the plaintiff’s novel Aap Ka Bunty. The plaintiff claimed a special reputation for her novel Aap Ka Bunty and submitted that her image would be lowered down before the students, research scholars and the literary world if the distorted version of her novel would be allowed to be presented through the film and thus, sought permanent injunction against its screening and exhibition.
The author’s objections were:
(1) there was a change of title;
(2) some characters and dialogues had been changed/modified which were not present in the novel; and
(3) the end of the film was different from that of the novel.
The Court held:
(It) does not sit as a sentinel of public morals. It cannot impose its views on sex or its depictions in the works of art. Some dialogues have to be deleted from the film as they distorted the characters and thus cannot be described as necessary changes for the change in the medium i.e. from literary to audio-visual. Another change had to be made in the end of the film. Regarding title, the name Aap Ka Bunty should find a place in the title of the film.
Thus, the Court upheld the moral rights of the author and the decision of the Court vindicated the view that the film producer cannot make any unnecessary changes in the original work of the author without his or her permission.
(2) K.P.M. Sundhram v. Rattan Prakashan Mandir11
The plaintiff and his co-authors entered into an agreement with the defendant giving them sole and exclusive licence to print and publish their works. The plaintiffs claimed that the defendants mutilated and distorted the original works by publishing various books in modified form. The defendants admitted the modifications made. The plaintiffs revoked the agreement.
The Court held:
With the revocation of agreement by the plaintiffs, no right was left with the defendants to continue to publish and sell the works. Interim injunction is also granted.
Therefore, the moral rights remain with the author and are enforceable even if all the economic rights have been licensed/assigned.
Similarly, there is a catena of case-law in support of the author’s moral rights. The Indian courts have been sensitive towards the moral rights of authors and the abovementioned cases buttress this fact.
Conclusion
A consideration of moral rights on the international scene reveals a pervasive dilemma. On one hand, awareness of the author’s moral interests, particularly in the environment of new technologies, appears to be growing. On the other hand, international negotiators seem to have reached a stalemate in their efforts to develop a harmonization programme for moral rights. The controversy over the author’s moral interests runs deep. Classification of this aspect of intellectual property rights at the international level requires the resolution of complex and fundamental conflicts — divergent legal traditions, the appropriate social role of creative authorship and the very logic of internationalization itself.
On balance, it seems that the maintenance of a separate regime for the protection of moral rights, independent of the global trends towards copyright harmonization may produce more negative than positive results. When moral rights do not enjoy a status equal to that of economic rights of authorship, important cultural values fall under attack. Internationalizing moral rights would allow them to keep pace with other aspects of copyright. Their presence in international copyright law could also bring a renewed cultural focus to a sphere of regulation that has become almost exclusively commercial and commodity-driven. Lastly, spreading awareness about copyright issues amongst the legal fraternity will surely go a long way in providing proper and adequate recognition to the moral rights of authors.
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