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AMAR NATH SEHGAL VS UNION OF INDIA

EQUIVALENT CITATIONS: 117 (2005) DLT 717, 2005(30) PTC 253 Del
INTRODUCTION
Most of the debate on the rights of the author revolves around the economic rights and
consequently, the moral rights have been overshadowed. Under the Indian Copyright law, the
author has a lifelong, exclusive right to (a) claim the authorship of the work (b) to restrain or
claim damages in respect of any distortion, mutilation, modification or other act in relation to the
work which is done before the expiration of the term of copyright, is such distortion etc would be
prejudicial to his honor or reputation. Even after parting away with the economic rights, the
author does not lose the moral rights over the work.
This is one such rare but far reaching case that the Moral rights are seldom a matter of legal
dispute. Copyright is a form of intellectual property protection granted under Indian law to the
creators of original works of authorship such as literary works (including computer programs,
tables and compilations including computer databases which may be expressed in words, codes,
schemes or in any other form, including a machine readable medium), dramatic, musical and
artistic works, cinematographic films and sound recordings. Copyright law protects expressions
of ideas rather than the ideas themselves.

FACT OF THE CASE


Mr. Amar Nath Sehgal is the world-renowned sculpture and has been conferred with
several awards for his beautiful creations and contribution to the Indian heritage. In the year
1957, the Government of India commissioned Mr. Sehgal for the creating bronze mural for the
most prominent International Convention Hall in the Capital of the Country i.e. A building was
conceived to be the hub of international and national conferences 'Vigyan Bhawan''. The Bronze
sculpture of about 140ft. span and 40ft. sweep took five years to complete and was placed on the
wall of the Lobby in the Convention hall. This embellishment on a national architecture became
a part of the Indian art heritage.

In 1979 the Indian government decided to remove the mural from the place where it was
on display. The sculpture was taken to a warehouse. In the process of moving and storage, the
mural was badly damaged and some pieces, including the portion of the work where the name of
the author was inscribed, simply disappeared.
When he became aware of what had happened, Amar Nath Sehgal notified the
government of his objections to the treatment of the sculpture, asking them to deal with it in an
appropriate manner. The government did not respond to this request. Sehgal proceeded to file for
an injunction to prevent the government from causing further harm to the mural.
His claim was based on section 57 of the Indian Copyright Act, setting out the special
rights of authors, generally known in the common-law world as moral rights ie filed a petition
in the Delhi High Court for recognition and enforcement of his rights on the mural.
Instead of filing their written statement, the defendants made an application under
Section 34 of the Arbitration Act, 1940 seeking stay of proceedings in the suit to facilitate
reference of disputes to arbitration for adjudication, in view of arbitration agreement between the
parties and for vacation of ad interim injunction granted on 29th of May, 1992. He seeks an exparte interim order restraining the defendants from causing further loss and injury to the mural.

ISSUES FOR DETERMINATION


The main issues for determination before the Court were
(a) whether the suit was barred by limitation
(b) whether Mr. Sehgal had moral right over the mural even when the copyright vested with the
UOI

(or)

Whether the plaintiff has rights under Section 57 of the Copyright Act, 1957 in the impugned
work although the copyright in the same has been vested to the defendant?

(c) Has UOI infringed moral rights of Mr. Sehgal


(d) whether Mr. Sehgal has suffered any damage and relief

PROVISIONS
Section 57 of the Indian Copyright Act
Section 57 of the Indian Copyright Act provides for the protection of authors moral rights
in India. It is based on the provisions of Article 6 (bis) and meets the basic standards for the
protection of moral rights set out in the Berne Convention.
In conformity with Article 6 (bis), section 57 (1) of the Indian Copyright Act protects authors
rights of attribution. It also provides protection exceeding the basic requirements of the Berne
Convention for authors rights of integrity.

Under section 57 (1)(a), literary and artistic works are protected from any distortion,
mutilation or other modification. The author need not prove that these actions are
prejudicial to his reputation. Rather, any modifications of a work to which the author

objects appear to constitute prima facie affronts to his reputation.


Specific acts which can damage an authors standing are addressed separately, in section
57 (1)(b). In broad terms which transcend the language of Article 6 (bis) ,this section
provides that an author may seek to restrain, or claim damages in relation to, any other
action. This action need not be expressly derogatory of the authors work, but the
court must determine whether it is prejudicial to his honour or reputation.

Section 57 does not explicitly indicate the duration of moral rights protection.
However, section 57(2) provides for the legal representatives of an author to exercise moral
rights on his behalf. Since the need for moral rights to be asserted by persons other than the
author can only arise in the event of the authors death, the protection of moral rights in Indian
law, by implication, must continue at least until the expiry of the authors economic rights.
Article 6 bis of the Berne Convention enjoins the members of the Berne Union to provide
legal recognition for the moral rights of attribution and integrity in a work in which
copyright exits. Article 6 bis of Berne Convention reads :3

''(1) Independently of the author's economic rights, and even after the transfer of the 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.
(2) The rights granted to the author in accordance with the preceding paragraph shall, after his
death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by
the persons or institutions authorised by the legislation of the country where protection is
claimed.
(3) The means of redress for safeguarding the rights granted by this Article shall be governed by
the legislation of the country where protection is claimed.''
Article 1 and 4 of the Convention read:
''Article 1
For the purposes of this Convention, the term ''cultural property'' means property which, on
religious or secular grounds, is specifically designated by each State as being of importance for
archaeology, prehistory, history, literature, art or science and property of artistic interest, such as

pictures, paintings and drawings produced entirely by hand on any support and in any

material (excluding industrial designs and manufactures articles decorated by hand);


original work of statuary art and sculpture in any material;
original engravings, prints and lithographs;

Article 4
The States Parties to this Convention recognize that for the purpose of the Convention property
which belongs to the following categories forms part of the cultural heritage of each State:
Cultural property created by the individual or collective genius of nationals of the State
concerned, and cultural property of importance to the State concerned created within the territory
of that State by foreign nationals or stateless persons resident within such territory;''
Section 34 of Arbitration Act, 1940 - Application for Setting Aside Arbitral Award

(1) Recourse to a Court against an arbitral award may be made only by an application for setting
aside such award in accordance with sub-section (2) and sub-section (3).
(ii) the arbitral award is in conflict with the public policy of India
(2) An arbitral award may be set aside by the Court only if

The party making the application furnishes proof that a party was under some incapacity
The Court finds that the subject-matter of the dispute is not capable of settlement by
arbitration under the law for the time being in force.

(3) An application for setting aside may not be made after three months have elapsed from the
date on which the party making that application had received the arbitral award or, if a request
had been made under section 33, from the date on which that request had been disposed of by the
arbitral tribunal.
(4) On receipt of an application under sub-section (1), the Court may, where it is appropriate and
it is so request by a party, adjourn the proceedings for a period of time determined by it in order
to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such take
action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral
award.

CONTENTIONS BY THE APPELLANTS


1. Whether the suit was barred by limitation
Since suit was one for violation of his moral rights which would last for his lifetime and having
not waived the same, suit could not be said to be barred by limitation his moral rights subsist
throughout his life. All through the interposing period of 13 years, he was seeking administrative
relief. Further, after the mural was removed, he approached various functionaries of the
Government of India for redressed and at no stage the government of India unequivocally
refused the claim of the plaintiff of having moral rights in the integrity of the mural. It was nonredressed which led to the filing of the suit. So the suit was not barred by limitation.
2. whether Mr. Sehgal had moral right over the mural even when the copyright vested with
the UOI
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The evidence on record is that the mural sculpture was authored by the plaintiff was not denied
by the defendants. His work has been displayed internationally in over 20 countries. He is the
recipient of Lalit Kala Academy Award and the President of India Award for excellence in Art
and Culture. The international eminence of the plaintiff could be gauged by the fact that the
Government of India commissioned him to install the mural on the walls of Vigyan Bhavan for
the reason that International Conferences were and are continued to be held in Vigyan Bhavan.
3. Has UOI infringed moral rights of Mr. Sehgal
The right to integrity is violated; the remedy is not limited to injunction or damages. The author
has the right to preserve the mutilated work as well. UOI has infringed moral rights of Mr.
Sehgal. He maintains that having discharged his contractual obligation and the mural having
admittedly remained displayed for nearly 18/20 years at Vigyan Bhavan before the same was
pulled down, the defendants cannot seeks to invoke the arbitration clause.
4. Whether Mr. Sehgal has suffered any damage
The mural created by him was a part of the national heritage and hence was valuable not only for
him but for the entire country. The mutilation of the work was prejudicial to his reputation as it
reduced the volume of the corpus of his work. The defendants did not even attempt to urge that
the destruction and damage to the mural was debatable.
Thus the present suit was filed praying for declaration that the plaintiff's special rights under
Section 57 of the Copyright Act, 1957 were violated by the defendants, for which the defendants
should tender an apology. A permanent injunction was prayed for to restrain the defendants from
further distorting, mutilating or damaging the plaintiff's mural. Damages in the sum of Rs.50 lacs
towards compensation for humiliation, injury, insult and loss of plaintiff's reputation were prayed
for. Lastly, decree for delivery-up directing the defendants to return to the plaintiff the mural for
restoration at the cost of defendants was sought.

CONTENTIONS BY THE DEFENDANT


1. Whether the suit was barred by limitation

That cause of action accrued to the plaintiff to file the suit in the year 1979. Being filed in the
year 1992, after a period of 13 years from the date when cause of action arose. So the suit was
barred by limitation since period of limitation was three years under Limitation Act.
2. Whether Mr. Sehgal had moral right over the mural even when the copyright vested with
the UOI
Mr. Sehgal cannot be the owner of the mural as it was owned by them and had a right to consign
the same to a store room and further contended that the plaintiff was paid for the work. The
plaintiff had assigned his copyrights to the UOI and having purchased the same, the defendants
are under no fetters while dealing with the mural in question.
3. Has UOI infringed moral rights of Mr. Sehgal
No infringement has risen as the points being agitated in the suit constitute disputes referable to
arbitration and in the given situation; the plaintiff cannot be allowed to continue with the suit as
the proceedings are liable to be stayed to enable the parties to seek resolution of disputes
between them by arbitration.

4. Whether Mr. Sehgal has suffered any damage


Assignment of his copyright in favor of the defendant in admitted by the plaintiff. Further
assignment of his copy right, his moral rights comprising, 'right of paternity' and 'right of
integrity', which are independent of copyright, continue to vest in his as there was no express or
implied assignment or waiver thereof in the said agreement. The assertion is that the mural was
damaged in a fire in the Vigyan Bhavan. It is declaration made that the plaintiff would have no
right to recreate the mural at any other place anywhere in the world including the right to sell the
same.

INTERPRETATION
In the case of Vishaka and Ors. V. State of Rajasthan and Ors, the Supreme Court read
international conventions not being inconsistent with our laws to interpret the guarantee of

gender equality under our constitution and in the absence of domestic law occupying the field,
formulated guidelines.
It has to be noted that as originally enacted, Section 57 of the Copyright Act, 1957 was very
widely worded because of the fact that the words ''would be prejudicial to his honour or
reputation'' which found mention in sub Clause (b) of sub Section (1) of Section 57 were not
qualifying sub Clause (a) of sub Section (1) of Section 57. Further, the words ''any other action''
which found mention in sub Clause (b) implied that the action could be other than a claim for
damages or a claim for injunction.

JUDGMENT
On the question as to whether the suit was barred by limitation, the Court ruled that the
correspondence between UOI and Mr. Sehgal contain the acknowledgement by the former of the
right of the latter over the mural and therefore the suit is not barred by limitation. The Court
examined at length the national and the international framework for protection of the moral
rights of the Author. The Court was of the opinion that it is a narrow view the derogatory
treatment of the creative work would mean deletion to, distortion, mutilation or modification to,
or the use of the work in setting which is entirely inappropriate. The broad view is that mutilation
is nothing but the destruction of the work as to render it imperfect and is therefore prejudicial to
the reputation of the author.
Recognizing the moral rights of the Mr. Sehgal over the Mural, ruled:
"Mural whatever be its form today is too precious to be reduced to scrap and languish in the
warehouse of the Government of India. It is only Mr. Sehgal who has the right to recreate his
work and therefore has the right to receive the broken down mural. He also has the right to be
compensated for the loss of reputation, honor and mental injury due to the offending acts of
UOI".
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. The issues involved in the suit are, thus, beyond the
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purview of the agreement, and, therefore, cannot be held to arise out of or in any way connected
with the contract. As the issues involved in the suit travel beyond the scope of the agreement, the
same are held not referable to arbitration. The application under Section 34 of the Arbitration Act
is dismissed.
The Court passed mandatory injunction against the UOI directing it to return the mural to Mr.
Sehgal within two weeks from the date of judgment. Court passed a declaration transferring all
the rights over the mural from UOI to Mr. Sehgal and an absolute right to recreate the mural and
sell the same. The Court also granted damages to the tune of Rs.5 lacs and cost of suit to Mr.
Sehgal against UOI.

CASES REFERRED
In KPM Sobharam v/s M/s Rattan Prakashan Mandir, AIR 1983 Del. 461 (468, 469),
The plaintiff, an author of certain books instituted the suit against the defendants for injunction,
restraining them from printing, publishing and selling the specified books, rendition of accounts
for the illegal gains made by the defendants for all unauthorized publications, and, for damages
under the provisions of sections 55 and 57 of the Act. The plaintiff claimed that the defendants
mutilated and distorted the original works of the plaintiff by publishing various books in
modified form in gross violation of the plaintiffs copyright. The plaintiff alleged that the
defendants had changed the original works title and made a distortion and mutilation of the
plaintiffs work prejudicial to the plaintiffs reputation. The plaintiff claimed that he never gave
any authority to the defendants to print and publish the books in that manner. The court granted
injunction restraining the defendants from printing, publishing and selling the goods written by
the plaintiff till final disposal of the suit.
In Smt. Mannu Bhandari, Appellant v. Kala Vikas Pictures Pvt. Ltd. and another, AIR
1987 Delhi,
The court observed that section 57 lifts the authors status beyond the material gains of
copyright and gives it a special status. An authors right to restrain distortion etc. of his work is
not limited to a case of literary reproduction of his work. The restraint order in the nature of
injunction under section 57 can be passed even in cases where a film is produced based on the
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authors novel. The language of section 57 is of the widest amplitude and cannot be restricted to
literary expression only. Visual and audio manifestations are directly covered. The court
observed that by reading the contract with section 57, it is obvious that modifications, which are
permissible, are such modifications, which do not convert the film into an entirely new version
from the original novel. The modifications should also not distort or mutilate the original novel.
The fact that Mannu Bhandari is the author of the story will be published in all the credits. This
is for giving due recognition to the authors reputation. The court therefore, directed certain
modifications and deletions to the film before screening it.
In Phoolan Devi v. Shekar Kapoor, (1995-PTC Del),
The plaintiff claimed that the basis of the film, being a novel dictated by the illiterate plaintiff
herself had been considerably mutilated by the film producer. The plaintiff sought a restraint
order against the defendant, from exhibiting publicly or privately, selling, entering into film
festivals, promoting, advertising, producing in any format or medium, wholly or partially, the
film Bandit Queen in India or elsewhere. Granting an injunction Vijendra, Jain J. held, that
the defendant had no right to exhibit the film as produced violating the privacy of plaintiffs
body and person. The balance of convenience is also in favour of restraining the defendants from
exhibiting the film any further as it would cause further injury to the plaintiff. No amount of
money can compensate the indignities, torture, and feeling of guilt and shame which has been
ascribed to the plaintiff in the film. Therefore, the defendants were refrained from exhibiting the
film in its censored version till the final decision of the suit.

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