This article is written by Sanyam Mishra, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.com. Here he discusses “Moral Rights of a Singer in a song.”
Table of Contents
Introduction
Music is one of the most protected works when talking about the concept of copyright. There are various aspects of a song, that is, lyrics, music, etc. These aspects can either be protected separately or collectively.
For instance, the lyrics of a song can be protected under the Copyright Act as a literary work while the copy of music can be restricted by treating it as a musical work. It can also be protected collectively. In the first case, the copyright exists with the lyricist, in the second case, it is with the composer. However, when these are protected as a recording collectively, the copyright rests with the producer.
Similarly, the singer of the song has some rights vested in him, that is, the performer’s right and moral rights.
What are Moral Rights?
The phrase ‘moral rights’ is derived from the French term ‘ droid moral’ meaning non-economic or personal rights. The Copyright Act defines Moral Rights as: “The performer of a performance shall, independently of his right after assignment, either wholly or partially of his right, have the right–
- to claim to be identified as the performer of his performance except where omission is dictated by the manner of the use of the performance; and
- to restrain or claim damage in respect of any distortion, mutilation or other modification of his performance that would be prejudicial to his reputation.”
An explanation has also been provided to this section that, the mere removal of a part of the performance would not amount to any infringement of the moral rights as long as the modification was made for technical reasons of editing and reducing the time of the recording due to any such limitation.
Difference Between Moral Rights and Performer Rights
A performer is entitled to both performers right as well as the moral right. Both these rights work to prevent any infringement of the copyright of the work. However, the thin line of difference between these two is the bundle of rights it provides to the artist.
Moral rights provide a person with the right of attribution and thus bar any alteration, distortion or mutilation of the performer’s work which hinders his reputation.
On the other hand, the performers right provide a singer with the authority to perform an act and any person wishing to perform the same is required to take permission from the singer.
Need of Moral Rights
The essence of moral rights lies in the protection of the reputation and integrity of the artist/singer. This right provides the singer with the authority to object to any offensive use of his piece of work that acts as a threat to his reputation.
In India, the need for having a separate provision for preserving the moral rights was felt and due to this, an amendment was made in 2012 which provided for the concept of moral rights.
Moral Rights In India
The concept of Moral Rights owes its origin to the countries of France and Germany. However, the first attempt to codify these rights was made through the Berne Convention for the Protection of Literary and Artistic Works back in 1886. Two rights were recognized under this convention, i.e.-
- Paternity rights
- Integrity Rights
India became a party to this convention in 1928. To incorporate its provisions India has two sections dealing with moral rights under its Indian Copyright Act, 1957. Firstly, Section 38B which was introduced after the amendment in 2012 to define these rights. Secondly, Section 57 where an author’s special rights are discussed. Here, two kinds of rights are provided through Section 57:
- Right to claim authorship of the work.
- Right to claim damages in case of any derogatory treatment of the artist’s work.
However, there’s an exception to it that mere use of work which is not up to the satisfaction of the author does not amount to derogatory treatment and would not be considered a violation of moral rights. Moral Rights cannot be assigned, unlike the performers’ rights. However, they can be waived off by the author.
The Indian Singers’ Rights Association operates in India to make sure that the economic rights and moral rights of the performers are not being violated. In the landmark case of Amarnath Sehgal v. Union of India, the court held that copyright includes a bundle of rights which are meant for the author. These may either be economic rights or moral rights. Here the Delhi HC encouraged the creative intellect of an author and recognised the privileged relationship between an author and his work. This was the first case where the moral right of an author was upheld under the Indian Copyright Act and thus, serves as a landmark. The Court awarded Mr Amarnath Sehgal with Rs. 5,00,000 and also ruled out that he has an absolute right over the mural in question and he can re-create in anytime.
Similarly, in the case of Mannu Bhandari v. Kala Vikas Pictures Ltd., an author’s moral rights were recognized even when the defendant had the performers’ right assigned to it. Here, the defendant changed the end of the petitioner’s novel while portraying it in its movie. It was held that this was a distortion or mutilation of the petitioner’s work and thus amounted to a violation of his moral rights.
Position Of Moral Rights In Other Countries
USA
Copyright Law of the United States has always focused on the protection of economic rights over moral rights. The USA, however, a party to the Berne Convention has never had a full codified law for moral rights. The Visual Artists Rights Act was passed with a motive to give effect to the moral rights. However, this particular act only protects visual contents like paintings, drawings, prints, sculptures and still photographic images produced for exhibition and existing as single copies or in limited editions of 200 or less.
The USA Government has given the argument that for rest of the categories of works sufficient laws exist through the Copyrights Act, Trademarks Act, etc. However, in truth, these legislations neglect the importance of moral rights of other forms of arts, for example, the moral rights of a singer and other non-visual artists. For example, Connie Francis, a singer, filed a suit in 2002 alleging that her music was being used to portray sexual content in the movies and this was in a way a derogatory treatment of her songs. However, the suit was dismissed, and her moral right was not recognized.
UK
The Copyright, Designs and Patents Act of 1988 provides for Moral Rights in the United Kingdom. These rights provide a person with the identity of being the author of a work. These rights are attached to the author and thus, cannot be transferred, unlike the economic rights which are attached to the work. However, the law of the UK allows a singer to waive off his moral right.
There are four rights observed under this:
- Right to identification
- Right to object to derogatory treatment
- Right to object to false attribution
- Right to Privacy
These rights do not comply fully with the Berne Convention due to the narrow approach towards the right to object to derogatory treatment and thus are criticized for the same.
Australia
Australia had a late response to the Berne Convention. It introduced the concept of moral rights through the Copyright Amendment (Moral Rights) Act, 2000. The rights provided through the Copyright Act, 1968 in the form of moral rights are:
- Right to attribution.
- Right of integrity of authorship to protect the attributable act from any derogatory treatment.
Moral Rights cannot be assigned or waived off completely in Australia. In the case of Fernandez v Perez, the respondent was awarded $10,000 for the breach of moral rights as his work was being subjected to derogatory treatment.
Canada
Canada Copyrights Act provides for the concept of Moral Rights. This law also provides for the succession of Moral rights in case of the death of the author. Section 34.2 of the Act also provides for the penalty to be awarded in case of infringement of the moral rights.
In Canada, moral rights cannot be assigned. However, these can be waived off contractually either in whole or in part. The transfer of moral rights is not possible in the lifetime of the author.
Conclusion
Economic rights can be licensed but this is not the case with moral rights. Several countries have recognized the concept of moral rights, some with a restrictive approach and some with a wider approach. In India’s case, the courts have from time to time adopted a wide approach towards these rights even when the statute only addresses limited rights.
A singer is also entitled to such rights so as to keep in check that his work is not being derogated. Moral rights are personal rights of the author which is owed to them as a result of their intellectual creativity and thus need to be protected in all scenarios so as to promote creativity.
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