Law

Intellectual Property
Economic and Moral Rights

Role Name Affiliation

Principal Investigator Professor (Dr.) Ranbir Singh Vice Chancellor, National

Law University, Delhi
Paper Coordinator Mr. Yogesh Pai Assistant Professor of
Law, National Law
University, Delhi
Content Writer (CW) Dr. Raman Mittal Associate Professor,
Campus Law Centre,
Faculty of Law, Delhi
University
Content Reviewer (CR) Mr. Yogesh Pai Assistant Professor of
Law, National Law
University, Delhi

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 Module Detail
Subject name Law

Paper name Intellectual Property

Module name/ Title Economic and Moral Rights

Module Id Law/IP/#25

Pre- requisites Basic knowledge about copyright law, theories of copyright,

personality theory, economics of copyright, inalienable rights
Objectives To get a fundamental understanding about how economic rights
and moral rights of authors of copyright and to provide a
narrative of contemporary issues through cases decided by
different courts in India
Key words Copyright, economic rights, section 14, Section 57, authors
special right, resale royalties

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 Structure of Module

Sub Topic
Topic

Introduction

1. Economic Rights 1.1 The Right of Reproduction

1.2 The Right of Distribution

1.3 Rental Right

1.4 The Right of Public Performance

1.5 Right to Communicate the Work to Public

1.6 Right of Adaptation and Translation

2. Moral Rights 2.1 Right of Paternity/Attribution

2.2 Right of Integrity

3. Resale Share Right in Original

Copies of Works

4. General Character of Rights within

Copyright

Summary

Self Check Exercises

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Introduction

Copyright is a bundle of rights which could be grouped under two major heads: Economic
rights; and Moral rights. The term ‘copyright’ as used in the Copyright Act is limited to the
economic rights which have been exhaustively defined under section 14 of the Copyright Act.
Moral rights are those rights which belong only to the author of a work and they cannot be
licensed or assigned. This module seeks to highlight all the rights that come within this
bundle together with some of the important and interesting cases decided by various courts on
the aspects of these rights.

Learning Outcome: The outcome is to let the reader know what all rights are available to an
author or owner of copyright in respect of different kinds of protected works.

1. Economic Rights

Economic rights belong to the owner of copyright. As these rights give the owner an
opportunity to make commercial gain from the exploitation of his work they are termed as
economic rights. Under the Copyright Act, 1957 economic rights are not available to all the
works in the same manner. In other words, these rights are classified in accordance with
categories of copyright works. Thus, economic rights available to films are different from
those available in respect of books. Following is an enumeration of various economic rights
granted to the owner of copyright.

1.1 The Right of Reproduction

Right of reproduction is the most basic of the rights under the umbrella of copyright and is
available to all the works that are subject to copyright protection. The right of reproduction
commonly means that no person shall make one or more copies of a work or of a substantial
part of it in any material form including sound and film recording without the permission of
the copyright owner. The right of reproduction is the legal basis for many forms of
exploitation of copyright works. For example, the printing of books by a publisher or the
cutting of music CDs by a producer depends on this right of reproduction.

Reproduction does not mean exact reproduction alone but includes any copy of the work
which may be considered an infringement of the copyright therein. “It may be that
reproduction has much the same meaning as ‘copy’, and that it suffices for a reproduction if it
makes a substantial use of the features of the original work in which copyright subsists.”1
Examples of reproduction acts which require permission under this right include
photocopying a book, copying a computer programme, using a cartoon character on a coffee-
mug, and incorporating a portion of another's song into a new song.

1.2 The Right of Distribution

An owner of copyright enjoys an exclusive right over the initial distribution of copies of his
work. This right flows logically from the right of reproduction. Naturally, reproduction right
would be of little value if the owner could not authorise the distribution of copies of his work
made by him or his consent. Like the right of reproduction, the right of distribution is
available to all the works that are subject to copyright protection.

1
British Northrop v. Texteam Blackburn [1974] RPC 57.

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After the first sale of a particular copy this right is normally said to have been ‘exhausted’.
That means the purchaser is free to resell or otherwise dispose of the copy he has bought. For
example a person may sell as second hand a copy of a book he bought from the market
without the consent of the owner of copyright therein.

1.3 Rental Right

The right of rental stems out of the right of distribution. ‘Rental’ means making available for
use for a limited period of time and for direct or indirect economic or commercial advantage.
Historically rental rights were not part of the bundle of rights within copyright. Lately, this
right has been made available to only three classes of works, viz. computer programmes,
sound recordings and cinematograph films. Thus, after a book has been purchased at a book
store, the copyright owner has no say over how that copy of book is further distributed. Thus,
the book could be rented without the permission of the copyright holder. The same would not
be the case for computer programmes, films and sound recordings.

The introduction of rental rights marked a departure from the old exhaustion doctrine which
had been necessitated by the ease with which the works to which it applies can be copied and
illegal copies put to profitable use. This became necessary for preventing abuse of the
owner’s right of reproduction when technological advances made it easy for a hiring customer
to copy such works.

Rental right connotes that the rental of copies of any of these categories of works, or the
original, to the public is a restricted act and the owner has the exclusive right to authorize or
prohibit the commercial rental to the public of originals or copies of their copyright works. It
means that a person who has lawfully purchased a copy of a film, sound recording or
computer programme will require the permission of the owner of copyright for resale to the
public as this right belongs exclusively to the copyright owner. Under a rental right, the
copyright owner may collect royalties from third parties engaged in the commercial rental of
his copyrighted works.

1.4 The Right of Public Performance

The exclusive right to authorise the public performance of a work is of very basic importance
to the copyright owner. The right of public performance is available for literary, dramatic and
musical works but it is of seminal importance for dramatic, dramatico-musical or musical
works which are created primarily for such performance. The right of public performance
entitles the owner to authorise live performances of a work such as a play, a dance or an
orchestra performance.

The question as to what constitutes a ‘public performance’ becomes very important, as

logically there is no restriction on private performance of a work. Generally, a private
performance would constitute a performance before an essentially domestic circle of family
and social acquaintances. On the contrary, a public performance would include the
performance of a work at a place where the public is or can be present, or at a place not open
to public but still a substantial number of persons outside the normal circle of family and
close friends is present. The mere fact that the public does not have free access to the venue
of the performance is not sufficient to characterise it as a private performance. For example,
the case of a hotel, or a hostel making a performance available through video to its guests or
inmates, even in the privacy of their rooms, would not be treated as a private performance.

1.5 Right to Communicate the Work to Public

The right to communicate the work to public is available for all the categories of protected
works. ‘Communication to the public’ means making any work or performance available for

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being seen or heard or otherwise enjoyed by the public directly or by any means of display or
diffusion other than by issuing copies of such work. It is not necessary that any member of the
public actually sees, hears or otherwise enjoys the work so made available.2 For example, a
cable operator may transmit a cinematograph film, which no member of the public may see;
still, it is a communication to the public. The fact that the work in question is accessible to the
public is enough to say that the work is communicated to the public.

The right to communicate the work to public includes the right to broadcast a work. The
owner of a work has the exclusive right to authorise the broadcasting of his work by radio or
television, or its communication to the public by wire or wireless whether by radio, television
or satellite.3 This right extends to rebroadcasting and communication of the broadcast to the
public by other means like loudspeakers and webcasts. Thus, the fact that an owner has
authorised a broadcast does not authorise, say, a shopkeeper or restaurant owner to attract
customers by making the broadcast available by such means.

1.6 Right of Adaptation and Translation

The right of adaptation is available for literary, dramatic, musical and artistic works. As per
Copyright Act ‘adaptation’ means:
(i) in relation to a dramatic work, the conversion of the work into a non-dramatic
work;
(ii) in relation to a literary work or an artistic work, the conversion of the work into a
dramatic work by way of performance in public or otherwise;
(iii) in relation to a literary or dramatic work, any abridgement of the work or any
version of the work in which the story or action is conveyed wholly or mainly by
means of pictures in a form suitable for reproduction in a book, or in a newspaper,
magazine or similar periodical;
(iv) in relation to a musical work, any arrangement or transcription of the work; and
(v) in relation to any work, any use of such work involving its re-arrangement or
alteration.
Adaptation involves the preparation of a new work in the same or different form based upon
an already existing work. Amending a textbook which was originally written for senior
students of university into a book suitable for junior students is a example of adaptation. The
making of a cinematograph film of a literary or dramatic or musical work is also an
adaptation.

Similarly, the owner of a literary, dramatic or musical work has the exclusive right to
authorise the translation of his work. Translation means the expression of a work in a
language other than that of the original version. Translation and adaptations are, in
themselves, works protected under copyright law. Therefore, in order to publish an adaptation
or a translation, it is necessary to obtain the permission both from the owner of the copyright
in the original work and from the owner of copyright in such adaptation or translation.

2
See, s. 2(ff), Copyright Act, 1957.
3
See, s. 2(ff) (Explanation), Copyright Act, 1957.

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 Transcription

Re-
Abridgement
arrangement

Conversion Adaptation Alteration

2. Moral Rights

Moral Rights of the author are the soul of his works. They are aptly described as the spiritual
ties that bind a creator with his creation. “The author has a right to preserve, protect and
nurture his creations through his moral rights”. 4 Moral rights protect the personal and
reputational rather than monetary aspect of a work vis-a-vis its creator. The term ‘moral
rights’ is a translation of the French term ‘droit moral’ but does not refer to ‘morals’ as
dictated in a religious order, rather it refers to the ability of an author to control the eventual
fate of his works. These rights allow the author to take certain actions to preserve the personal
link between himself and his work.

In India moral rights are protected by the Copyright Act under the concept of Author’s
Special Rights.5 Moral rights are independent of economic rights and remain with the author
even after he has transferred all his economic rights to someone else through license or
assignment. That means these rights cannot be a subject matter of transfer and they always
remain with the author. Section 57 clearly overrides the terms of the contract of assignment of
the copyright. The contract of assignment would be read subject to the provisions of section
57 and the terms of contract cannot negate the special rights guaranteed by section 57. The
assignee of a copyright cannot claim any rights or immunities based on the contract, which
are inconsistent with the provisions of section 57.6 The law in United States7 permits waiver
of moral rights by a signed, written agreement specifying the work and the precise uses to
which a waiver applies. However, Indian law is silent on the possibility of waiver of moral
rights. In industry practices often publishers ask for a partial waiver of the right of integrity.
This is reasonable if the waiver extends only to changes necessary for the work to be adapted,
e.g. a novel in a film. There should, however, not be a blanket waiver of the right of integrity
without strong reasons.

2.1 Right of Paternity/Attribution

4
Amar Nath Seghal v. Union of India 2005 (30) PTC 253 (Del).
5
See, s. 57, Copyright Act 1957.
6
Smt. Mannu Bhandari v. Kala Vikash Pictures Pvt. Ltd. and Anr., AIR 1987 Delhi 13.
7
See, Visual Artists Rights Act of USA.

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The right to paternity is essentially the right of an author to claim authorship of his work and
have it attributed to him. It is the right of an author to be identified whenever a work is
published, performed or broadcast. This means authors, scriptwriters, playwrights, painters,
sculptors, illustrators and translators must be properly credited for their works.

2.2 Right of Integrity

The law grants right to the author to object to any distortion, mutilation, modification or other
act which is prejudicial to his honour or reputation. The expression ‘other act’ is ejusdem
generis with the words ‘distortion’ and ‘mutilation’. The failure to display a work at all and
the failure to display it to the satisfaction of its author are not considered to be an
infringement of the right of integrity.

Amar Nath Seghal v. Union of India8 is an interesting case related to moral rights. In the year
1957, the Union of India commissioned the plaintiff, Amar Nath Sehgal, for creating a bronze
mural for Vigyan Bhawan in New Delhi. The Bronze sculpture of about 140ft. span and 40ft.
sweep took five years to complete and was placed on the wall of the lobby of Vigyan
Bhawan. For more than fifteen years the sculpture decorated the walls of Vigyan Bhawan but
in 1979 it was pulled down because the building required renovation. As the mural was so big
the only way to remove it was to break it into parts. The plaintiff contended that the
destruction of his work amounted to mutilation of his work and the same was prejudicial to
his reputation as it reduced the volume of the corpus of his work. The defendant, Union of
India, on the other hand, argued that it was the owner of the mural as the work was assigned
to it and hence it had the right to consign the work to the storeroom. The court held 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. The court passed injunction against the Union of
India directing it to return the remains of the mural to Mr. Sehgal and also transferred all the
rights over the mural to Mr. Sehgal and accorded him an absolute right to re-recreate the
mural and sell the same. The court also granted damages to the tune of five lac rupees.

3. Resale Share Right in Original Copies of Works

This right is a special right which has features of both economic and moral rights. This right
is economic in nature but available only to authors or their legal heirs. This is available in
respect of the resale of the original copy of a painting, sculpture, drawing or manuscript of a
literary, dramatic or musical work. If the resale price of such a work exceeds more than ten
thousand rupees then the author or his legal heirs, irrespective of any assignment of copyright
in such work, shall have a right to get a percentage of the resale price of such work. The
percentage of share is to be fixed by the Copyright Board but it cannot exceed ten percent of
the resale price.9 For instance, a painter in his youthful days sold one of his paintings for five
thousand rupees to a collector of art. After ten years, when the artist becomes famous, the
same paining commands a price of five lac rupees in the art market. If the art collector sells
the painting, the author of the painting shall have right to claim a share in the resale price.

4. General Character of Rights within Copyright

Copyright is a bundle of rights which are exclusive in nature meaning thereby that the owner
can exclude all others in the enjoyment of these rights. Because of this exclusivity copyright
along with other forms of IP are frequently termed as monopolies. However, the same
principle of exclusivity can be used by the owner to invite others to exploit his copyright in
return for consideration thereby maximising the returns from his property. These exclusive
rights can be independently exploited. For example, the owner of copyright in a novel may
8
Amar Nath Seghal v. Union of India 2005 (30) PTC 253 (Del).
9
See, s. 53A, Copyright Act, 1957.

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grant a license to reproduce the novel or translate it without granting rights to perform it in
public or to make a cinematograph film based on it. Further, these rights are automatic in
nature; that means the law does not expect the creator to do any formalities for protecting his
rights apart from creation of the work. The moment a work comes into existence, the rights
are born simultaneously.

The rights granted under copyright are negative rights instead of positive monopolies. That
means, the owner of copyright can stop others from exercising his exclusive rights but he has
not been granted by copyright law a positive right to exploit his works. This allows the
government to impose further regulatory controls on the exploitation of copyright protected
works. For example, a novel which is blasphemous may be legally restricted from being
distributed. This does not interfere with the exclusive right of the owner since law doesn’t
grant the owner of copyright a positive monopoly for exploitation but only a negative right.

Bundle

Fragment-
able General Negative

Nature of
Copyright
Rights

Transferable Exclusive

Summary

Economic, moral and resale share rights comprise the bundle of rights available under the
Copyright Act to authors and owners of various protected works. Economic rights allow the
owner to reap rewards for expending his labour, skill or investment in the work. Moral rights
protect the personal and reputational rather than monetary aspect of a work vis-a-vis its
creator. Economic rights include the exclusive rights of reproduction, distribution, public
performance, communication to public, adaptation translation together with rental rights.
Right of attribution and integrity are the components of moral rights. While economic rights
are transferrable by assignment and licenses, moral rights cannot be a subject of transfer nor
are they effected by a transfer of copyright.

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Self-check Exercises

 Copyright is a bundle of rights. Explain.

 Explain the various kinds of economic rights within the copyright system?
 What are moral rights? Explain the kinds of moral rights.

 How moral rights are different from economic rights?

 What is resale share right under copyright law?

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