India incorporated moral rights into its copyright law framework by way of the Copyright Act 1957. Section 57 of the act specifically addresses authors' special rights, with a clear emphasis on extending such rights beyond purely economic considerations. These moral rights have been given statutory recognition and comprise the right to:
- claim authorship of a work (the so-called 'right to attribution' or 'paternity right'); and
- prevent any distortion, modification or mutilation of a work which would be prejudicial to the author's reputation (the so-called 'integrity right').
These provisions are clearly based on Article 6bis of the Berne Convention, of which India is a signatory. While jurisprudence on moral rights is still relatively limited, there have been a few foundational cases which are emblematic of India's approach to moral rights and the associated legal issues.
The first case pertaining to authors' moral rights – Mannu Bhandari v Kala Vikas Pictures Ltd(1) – came 30 years after the Copyright Act's enactment. In this case, the court examined the substance of the protection granted by the integrity right under Section 57(1)(b) of the act. The case pertained to the adaptation of the plaintiff's novel Aap Ka Bunty into the defendants' film Samay Ki Dhara. The court had to consider whether the adaptation amounted to mutilation or distortion of the author's work. Although the parties eventually reached a settlement among themselves, the court took the opportunity to scrutinise Section 57 and held that the words 'other modification' must be read ejusdem generis with the words 'distortion' and 'mutilation'. The court observed that Section 57 is the statutory recognition of an author's intellectual property and must be protected with special care. Hence, a modification will be found to violate Section 57 if it:
- results in the modified work appearing quite different from the original; or
- amounts to a perversion of the original.
The Delhi High Court's verdict in Amar Nath Sehgal v Union of India (1987) is perhaps the most prominent judgment to deal with the issue of an author exercising their moral rights after assigning copyright.(2) In 1957 the government commissioned Mr Sehgal to create a bronze mural sculpture, which was to be displayed in Vigyan Bhawan. However, in 1979 the government removed the mural and stowed it away without Sehgal's consent. Consequentially, Sehgal filed suit seeking to enforce Section 57 of the act and hold the government liable for its violations of his moral rights. The court was emphatic in its analysis of the author's moral rights and even named them the "soul of his works". Observing that a privileged relationship exists between a creative author and their work, the court stressed the need to protect an author's paternity right and integrity right. These rights cannot be negated or waived by the terms of a contract for assignment. Further, the court:
- interpreted the integrity right broadly enough to encompass the protection of India's cultural heritage; and
- deemed the mural to be an Indian national treasure and thus applied Section 57 of the act.
Thus, the stowing away of an author's work, especially in light of its cultural significance, was declared an extreme form of mutilation which contravened Section 57. As such, the court granted a mandatory injunction directing the government to return the mural and pay Sehgal damages of Rs500,000.
Notably, in 2010 the Delhi High Court rejected the broadening of moral rights to include the right to retraction in Pee Pee Publisher v Neena Khanna.(3) The court rejected the plaintiffs' claims that Amar Nath Sehgal had enlarged the ambit of moral rights to include a retraction right not specifically mentioned in Section 57 of the act, as this would contradict the legislative intent behind the provision. The court observed that the plain and unambiguous wording of Section 57 requires the court to refrain from unnecessarily reframing or enlarging it.
The question of whether moral rights can be waived in India has yet to be substantially addressed. In Amar Nath Sehgal vs Union of India (2002), the Delhi High Court's single judge – while dealing with an application pertaining to Section 34 of the Arbitration Act 1996 which had been filed by the Union of India – held that:
the plaintiff seeks damages, for infringement of his special rights or moral rights, as embodied under section 57 of the Act owing to mutilation or damage to the mural. The plea relating to assignment of copyright bears no relevance to the issues involved. No express or implied assignment or waiver of his special rights/moral rights by the plaintiff, in relation to the mural, in favor of the defendants is pleaded to constitute the subject of the agreement containing the arbitration clause.(4)
The issues involved in the suit were beyond the purview of the agreement and hence were not referred to arbitration.
Another Delhi High Court judgment (Sartaj Singh Pannu v Gurbani Media Pvt Ltd) addressed the issue of the waiver of moral rights.(5) The question at issue was whether film directors can be considered authors and waive their moral rights. The court held as follows:
in response to a query whether a Director can decide to not want his name to be associated with a film which he considers harmful to his reputation, Mr. Rao submitted that such a waiver would be contrary to public policy since the public would have a right to know who the Director of a film was. However, the Court is not prepared to go as far as to deny the right of a Director to waive his right to be credited as such if for any reason he does not want his name to be associated with the film. As long as the waiver is voluntary, it cannot be said to be opposed to public policy. The mandatory declaration of the name of the Director in the application for a censor certificate is sufficient to satisfy the requirement of the right of the public to know who the Director is.
In view of the fact that a film director is not recognised as a dramatis personae akin to a producer (who is recognised as the author of a film), the consequent waiver by a director would not sufficiently answer the question of whether an author can waive their moral right.
As a general rule, parties can contract in derogation of a statute, but not in derogation of fundamental rights or public policy. This rule was articulated by the Supreme Court in Bashesher Nath v CIT, in which the court held that that "save fundamental rights articulated in Chapter III of the Constitution, statutory rights can be waived subject to certain conditions including such waiver not being opposed to public policy".(6)
Similar views were considered by Supreme Court in Shri Lachoo Mal v Shri Radhey Shyam.(7) In its decision, the court considered whether statutory rights can be waived by an individual and ruled that:
the general principle is that everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy.
However, just a few years later, the Supreme Court in Murlidhar Aggarwal v State of Uttar Pradesh disallowed the waiver of a statutory benefit by a tenant against eviction under the Uttar Pradesh (Temporary) Control of Rent and Eviction Act 1947,(8) holding that:
section 3 of the Act is based on public policy. As we said, it is intended to protect a weaker section of the community with a view to ultimately protecting the interest of the community in general by creating equality of bargaining power. Although the section is primarily intended for the protection of tenants only, that protection is based on public policy. The respondent could not have waived the benefit of the provision.
The ambit of 'public policy' was thus broadened to keep it in consonance with the changing judicial expression.
Whether an author's moral rights under Section 57 of the Copyright Act are based on public policy was answered by the division bench of the Delhi High Court in the 2005 case Amar Nath Sehgal v Union of India.(9) In its decision, the court observed that:
authorship is a matter of fact. It is history. Knowledge about authorship not only identifies the creator, it also identifies his contribution to national culture. It also makes possible to understand the course of cultural development in a country. Linked to each other, one flowing out from the other, right of integrity ultimately contributes to the overall integrity of the cultural domain of a nation. Language of Section 57 does not exclude the right of integrity in relation to cultural heritage. The cultural heritage would include the artist whose creativity and ingenuity is amongst the valuable cultural resources of a Nation. Through the telescope of section 57 it is possible to legally protect the cultural heritage of India through the moral rights of the artist.
A reading of Section 57 thus indicates that the remedies provided therein may not be capable of being waived by an author given that the amendment of the Copyright Act in 2012 paved the way for moral rights to subsist even after a copyright has expired. The waiver of moral rights is likely to gain more visibility in the near future.
For further information on this topic please contact Ameet Datta or Tishya Pandey at Saikrishna & Associates by telephone (+91 120 463 3900) or email ([email protected] or [email protected]). The Saikrishna & Associates website can be accessed at www.saikrishnaassociates.com.
(4) 2002 (2) ARBLR 130 Delhi, which was finally decreed in 2005.