This article has been written by Mehernaz Contractor of Siddharth Law College, Mumbai. This article provides a detailed view of moral rights. It deals with how moral rights are related to a person and his work.
It has been published by Rachit Garg.
Table of Contents
Introduction
A person is bound to perform his duty. In the same way, rights are associated with a human being. They can be natural, legal, or moral. Moral rights build up a relationship with the person and his work. In this digital world, moral rights seem to have been underestimated. Moral rights describe the ethics of work. Moral rights are usually connected with the copyright of the creator’s work. Moral rights are included in the Copyright act of the concerned country. Earlier, no legal actions were taken for the infringement of moral rights, but this scenario has changed now.
What are moral rights
Moral rights are personal rights that show a relationship between the creator and his work. They give control over the creation of work. Moral rights are called “Droit Moral” in French. Moral rights do not derive any direct financial benefit to the author of the work. They help to avoid modification or alteration of the content. Moral rights preserve the integrity of the author’s work. Moral rights are neither the opposite of immoral rights nor of legal rights.
The Origin of moral rights
Moral rights were recognized for the first time in France and Germany. The Human Rights perspective of Moral Rights found in Article 27(2) of the Universal Declaration of Human Rights, 1948 protects the moral rights of the author of the work. These human rights were not documented, so a stricter provision for protecting the moral rights was needed. This gave rise to the International convention for copyright called as Berne Convention, 1886. Moral rights were included in Article 6bis of the Berne Convention.
Types of moral rights
There are three types of moral rights:
The Right of Attribution
It is also called the Right of Paternity or Right to Authorship. This right establishes ownership over the work. Through this right, the public can know about the creator of the work. Right of Attribution states that a person must be named as the author of work if he has created the work. Plagiarism can be avoided through this right. The author’s name must also appear in the reproduction or adaptation of the work. In some countries, the right of attribution must be exercised through assertion. The author must expressly assert that he is the owner of the work. Assertion can be done through a legal contract. An artwork published in an exhibition can be asserted by attaching the name to the frame of the artwork. The assertion of this right is done only once. The assertion of this right should not take too long. This right also allows the author to work under the name of a pseudonym.
Exceptions
The right of attribution cannot be exercised when the artwork is used:
- When current events are to be reported,
- To publish in a newspaper
- In a publication like an encyclopedia or dictionary.
The Right to Integrity
The author of the work will not be subjected to derogatory treatment under this right. Derogatory treatment includes materially distorting the work, destroying the work, or altering the work. This right protects the integrity of both the author and the work. The work should not be altered in a way that the alteration harms the work. This right ensures that the reputation of the author is not destroyed. Negative reviews or comments about work can affect the integrity of the work. The Right to Integrity also has the same exceptions as the Right to Attribution. This right will come into play when there is an adaptation of work from one form to another.
The Right against False Attribution
This right mentions that a person should not falsely represent himself as the owner of a work. This right stops the person from being credited for work when, in fact, he is not the owner of the work.
Additional moral rights include the right to privacy, the right to publish a work, the right to withdraw a published work from sale, the right to withdraw the work, and the right to prevent violation of the author’s character.
Applicability of moral rights
Copyright assigns both moral and economic rights to the author of work. Although a person has transferred his copyright, moral rights remain with the owner of the work. They are included as a provision in the copyright acts of different countries. Moral rights under copyright are conferred to an individual and not to a corporation or an organization.
Issues with moral rights
Moral rights are personal, and they are not concerned with the public interest. Freedom of speech and expression is not exercised as any criticism of the work of the author may be against moral rights. Moral rights also give the author the right to destroy the work. This can also destroy cultural heritage, as the work can be of utmost importance to religion and culture. The interests of the author are only looked upon, ignoring the interests of society. The preservation of the culture is only left to a single person to determine. The author can make changes to his previous work and forget to inform the public about the same. Then people may be tricked into buying misrepresented work and can assume negative views about the author. Such issues with moral rights can be resolved if the laws of various countries are changed to adapt to the changing technology of the world.
How does one acquire moral rights and on which types of work
Moral rights are created on work as soon as a copyright is created on a work. No registration is necessary to exercise moral rights at work. Generally, moral rights remain during the lifetime of the author and up to some years after the death of the author. Some countries require that the author must assert his moral rights to exercise them. Moral rights cannot be transferred or assigned to a person. However, moral rights can be transferred to legal representatives of the author upon his death.
Moral rights are related to:
- Artistic works such as photographs, sketches, paintings, craftworks, murals, maps, and plans
- Literary works such as written material and computer programs
- Dramatic works such as plays and screenplays
- Musical works
- Films which include documentaries, music videos, commercials, and feature films
- Performances both live and recorded
However, moral rights are not assigned in works related to sound recordings.
Waiver of moral rights
In European countries, moral rights cannot be waived. Generally, moral rights are waived through a written contract or agreement. The author can relinquish his moral rights through a severability clause in the contract. This usually happens in employment contracts where the employee develops a product for the company, and the copyright as well as moral rights vest with the company.
Infringement of moral rights
Infringement of moral rights can happen if someone has used work and the author has not been named in the work, or if someone has used work in a way that could harm the reputation of the author. The author can file a suit for such an infringement of moral rights.
Remedy for infringement of moral rights
Depending upon the circumstances of the case and the nature of the infringement, the court can provide various remedies as a course of discretion, as stated below:
- Order to stop the infringement (injunction) – The injunction can be permanent or temporary depending on the circumstances of the case. Three things must be proved to obtain an injunction from the court: prima facie case, inconvenience caused, and injury or damage caused to the plaintiff.
- Pecuniary damages – The plaintiff can seek compensatory damages from the defendant. He can also claim conversion damages if the work has been converted to some other form.
- Anton Piller Order – Under this order, the defendant must stop using the plaintiff’s work. The court can also direct the plaintiff’s lawyer to search the premises of the defendant.
- Imprisonment – Depending upon the amount of infringement, the court can also prescribe a fine and punishment to the defendant.
- Public apology – The court can also direct the defendant to issue a public statement seeking an apology from the plaintiff about the misuse of his work.
- Order to reverse or remove the derogatory treatment – Under this order, the defendant must remove any comments or statements that could harm the author’s reputation.
- Order to correct the false attribution – The court can direct the defendant to include the name of the original author on the work and remove any false attribution on the work.
Defences for infringement of moral rights
A person can escape the consequences of infringement of moral rights if he can show that the infringement was reasonable in the circumstances. The court, while considering this defense, will look for various factors such as:
- Nature of the work.
- Purpose and the manner in which the work was used.
- Views of the author on the infringement.
- Relevant industry practices.
- Whether the work was created in the course of employment or not.
The defense of reasonableness cannot be used for breach of moral right against false attribution. There is no infringement of moral rights if the author has consented to the particular act or omission of the act. A person can also use the defense that he was using the work for a research or he was using the work for a judicial proceeding.
The concept of moral rights in various countries
Different countries have different provisions and acts regarding moral rights. Such provisions are stated below:
- Canada – The term moral right protection is the same as that of copyright. The term will be during the author’s lifetime plus fifty years after his death. Moral rights are included in Section 14.1 of the Copyright Act, 1985. The moral rights cannot be transferred or assigned but can be waived under a contract.
- Europe – Assertion of moral rights is required to enforce moral rights in Europe. Moral rights cannot be transferred or waived because it is believed that rights in property cannot be transferred; it can only be given on a license.
- China – Article 20 of the Copyright Law of the People’s Republic of China, 1990 provides an unlimited term of protection of moral rights. The moral rights cannot be transferred or assigned but can be waived under a contract.
- The United States – Moral rights are not fully protected in the U. S. Only works of visual arts are provided moral rights under the Visual Artists Rights Act (VARA) of 1990. The moral rights cannot be transferred or assigned but can be waived under a contract. The term protection of moral rights will persist till the lifetime of the author. VARA protects the right to integrity and the right to attribution of artists. Moral rights were added to this country when it joined the Berne Convention.
Moral rights in India
Moral rights are recognized under Section 57 of the Copyright Act, 1957. The right of paternity, right of dissemination, right of integrity, and right to retraction are available under this section. Waiver of moral rights is permitted if it is against public policy. The duration of moral rights will be during the author’s lifetime plus seventy years after his death. Earlier, moral rights were only limited to literary works, but the court in Mannu Bhandari v. Kala Vikas Pictures Pvt. Ltd and Ors held that moral rights should also be applied to visual and audio works. Moral rights also apply to computer programs.
Landmark judgements on moral rights in India
Amarnath Sehgal v. Union of India
Facts
In this case, the petitioner was appointed by the Ministry of Works, Housing, and Supplies to prepare a mural for India’s first convention center Vigyan Bhavan. The mural attracted visitors from around the world. After some years, Vigyan Bhavan underwent a renovation, and the mural had to be pulled down. When the plaintiff came to know about this, he claimed damages from the government. The mural was damaged due to the negligent behaviour of the government so the plaintiff sued the government under section 57 of the Copyright Act, 1957.
Issues
- Whether the petitioner’s rights have been violated by the act of the respondent under Section 57 of the Copyright Act, 1957?
- Whether the plaintiff suffered damages due to the acts of the respondent?
- Whether the plaintiff has a better position than the defendants
Judgement
The defendant had argued that the plaintiff had no position to claim damages as he had transferred his copyright and economic rights to them. They also had the right to destroy the work. The court held that even though the plaintiff had transferred copyrights to the defendant, he possessed special rights to claim damages. The court held that protection of artistic expression is necessary even though the artist does not have economic rights with him. It also stated that it is only the plaintiff who has the right to recreate his work and so has the right to be compensated for the loss of reputation, honour, and mental injury due to the acts of the respondent.
Mannu Bhandari v. Kala Vikas Pictures Ltd.
Facts
In this case, the plaintiff, a Hindu writer, had assigned rights over her novel “Aap ka Bunty” to the defendants for producing a movie. The defendants produced a movie called “Samay ki Dhara” based on the novel. The plaintiff argued that the movie and the novel were based on different plots, which harmed her reputation as a writer and filed a suit for permanent injunction in the court.
Issues
- Whether the appellant can be restricted to those contractual terms which are contrary to Section 57?
Judgement
The court held that even though the plaintiff had transferred all her rights to the defendant, she still had moral rights over the work. Moral rights are not only in literary works but also apply to films and documentaries. It also held that some modifications while transforming a novel into a movie are permissible but should not harm the reputation of the author. Concerning the contract between the parties, the court stated that the provisions in the contract should not be in contravention of section 57 of the Copyright Act, 1957. Finally, it was agreed by the defendants that the name of the plaintiff and her novel’s name should be removed from the film. The plaintiff will not have any rights over the film.
Conclusion
Moral rights protect the author’s reputation and provide him with the right to modify or remove the work. They are assigned automatically as soon as the work is created. Moral rights maintain the relationship of the author with the work without providing any economic benefits to the author. As moral rights are closely connected with the author’s personality, they should not be ignored. Such rights give creative control to the author so that his expressions or ideas are preserved.
Frequently Asked Questions (FAQs)
Can moral rights be transferred, assigned, or licensed?
Answer. Moral rights cannot be transferred, assigned, or licensed as it is the fundamental right of every human being to protect his reputation and honour. Moral rights are considered individual rights, and one individual cannot give his right to another.
Why are moral rights needed?
Answer. Moral rights help to protect the creativity of the work. Moral rights are non-economic rights that help the author to preserve the integrity of the work. It helps to protect the reputation of the author.
References
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