LAW TEACHING

SESSION: 2022-23

SUBJECT: LAW OF COPYRIGHT AND

DESIGN

TOPIC: MORAL RIGHTS

SUBJECT CODE: ML105-IP

SUBMITTED BY:-
SARTHAK SOLANKI
LLM (IPR) 1 YEAR
ENROLL NUMBER-20220231

INDEX
1. ACKNOWLEDGEMENT

2. INTRODUCTION

3. WHAT ARE MORAL RIGHTS

4. APPLICABILITY OF MORAL RIGHTS

5. ISSUES WITH MORAL RIGHTS

6. WAIVER

7. INFRINGEMENT

8. CONCEPT OF MORAL RIGHTS IN

VARIOUS COUNTRIES

9. MORAL RIGHTS IN INDIA

10. LANDMARK JUDGEMENTS

11. CONCLUSION
 ACKNOWLEDGEMENT
The success and final outcome of this project required a lot of guidance and assistance from
many people and I am extremely privileged to have got this all along the completion of my
project.

Working on this topic was a very knowledgeable experience and we owe our deep thanks to sir
for allowing us to work on this interesting topic.

At the end I would like to express my deep and sincere gratitude to the above mentioned whose
guidance, encouragement and constructive criticism have contributed immensely to the evolution
of our ideas

INRODUCTION
1 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.

1.1THE 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.

1.2TYPES OF MORAL RIGHTS

There are three types of moral rights:

1.2.1 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. 
1.2.1.1 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.

1.2.2 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.

1.2.3 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.

2 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. 
3 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.

4 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.
5 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.

6 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. 

6.1REMEDY 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:

1. 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.

2. 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.

3. 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.

4. Imprisonment – Depending upon the amount of infringement, the court

can also prescribe a fine and punishment to the defendant.

5. 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.
 6. 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.

7. 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.

6.2DEFENCES 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.  

7 THE CONCEPT OF MORAL RIGHTS IN VARIOUS COUNTRIES

Different countries have different provisions and acts regarding moral rights.
Such provisions are stated below:

1. 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.
2. 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. 
 3. 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.
4. 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. 

8 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.

9 LANDMARK JUDGEMENTS ON MORAL RIGHTS IN INDIA

9.1AMARNATH SEHGAL V. UNION OF INDIA

9.1.1 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. 
9.1.2 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

9.1.3 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.

9.2MANNU BHANDARI V. KALA VIKAS PICTURES LTD.

9.2.1 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.

9.2.2 Issues
 Whether the appellant can be restricted to those contractual terms
which are contrary to Section 57? 
9.2.3 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.

10 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.