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INTRODUCTION

The rights of an author of a copyrightable work can be broadly classified into: (i) Economic rights, and (ii) Moral rights Moral rights are those special rights of an author in his work which cannot betransferred and which will continue to vest in the author for the whole of the copyright term. These rights which originated in France are recognised by the general law of the land in almost all civilised nations. The generally accepted moral rights are: (i) the right of paternity ( droit a la paternite) (ii) the right of integrity ( droit au respect de loeuvre)
(iii)

the right of disclosure (droit de divulgation) the right of non-attribution

(iv)

Article VI-A of the Berne convention, to which India is a signatory, recognizes moral rights. Member states have been directed to provide authors the rights: (i) to claim authorship; and (ii) to object to alterations In India, the Copyrights Act, 1957 (the Act) gives statutory recognition to the following moral rights :(i) Right to claim authorship of the work. (ii) Right 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, if such distortion, mutilation, etc would be prejudicial to his honour or reputation. (S.57 of the Act.)
These moral rights of the author are perpetual, inalienable, and descend to the heirs of the author, even after the author transfers the economic rights.

The Origin of Moral Rights


"Moral rights" is the English translation of the French phrase droit moral. Moral rights differ from copyright. Copyright protects property rights, which entitles authors to publish and economically benefit from their published works. Moral rights safeguard personal and reputational rights, which permit authors to defend both the integrity of their works and the use of their names. In countries that legally recognize moral rights, authors have redress to protect any distortion, misrepresentation, or interference of their works that could negatively affect their honor. Moral rights are often described as "inalienable." French law recognizes perpetual moral rights. In Germany, moral rights end when the author's copyright expires while in other countries, moral rights terminate with the author's death. For a span of years, various authors and artists have filed law suits regarding the use of their works or, in the case of Samuel Clemens, the use of their names on works they did not authorize. The first legal international treaty to recognize the concept of moral rights was The Rome Act of 1928. Article 6bis(1) of the current Berne Convention treaty includes a moral rights clause that protects authors' rights to decide whether and when to publish works, claims of authorship after the work is published, and preservation of the works' integrity.

Copyright and Moral Rights


Moral rights differ from copyright. Whereas copyright protects property rights, which entitles authors to economically benefit from the reproduction of their work, moral rights safeguard personal and reputation rights, which permits authors to defend both the integrity of their work and the use of their names. Many European countries provide for moral rights in addition to copyright held by an author. While copyright may be bought, sold or licensed, authors generally retain their moral rights, which cannot be transferred to third parties. The author and his/her heirs (in most countries) are the only ones who can be holders of the moral rights originally bestowed to the author. In the United Kingdom, Ireland, Holland, United States and Canada the author can, under certain conditions, waive his/her moral rights.4

Economic Rights

Rights

and

Moral

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 honor or reputation. Moral rights are non-economic rights, as they do not directly confer a financial return on copyright creators or owners. They may not be traded, sold or bequeathed in a will, although when the creator dies the rights may be exercised by his or her legal personal representatives.5

Who has moral rights?


Individual creators have moral rights in relation to their work. Examples of such creators are: the writer of a novel; the writer of a screenplay; the architect of a building; the composer of a song melody and the writer of the lyrics; the painter of a picture; the choreographer of a ballet. In the case of films the following people have moral rights: the principal director; the principal producer (provided the producer is a natural person and not a company); and the principal screen writer.6 It is noteworthy that in light of above only individuals (natural persons) have moral rights; therefore, Corporations/juristic persons do not have any moral rights.

Moral Rights in International Law


Although the protection of moral rights is chiefly a matter of national law, a brief review of the international basis of national moral rights statutes is helpful in understanding the common core of transnational moral rights law. The primary international reference for moral rights is the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention)7, which has contained a moral rights provision since 1928. Article 6bis(1) of Berne Convention, which is universally understood as codifying the moral rights of attribution and integrity, reads: 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 honor or reputation. In 1996 that moral rights again became the object of international regulation, when Article 6bis of the Berne Convention was incorporated by reference into the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT) and expanded to apply to performing artists by the WIPO Performances and Phonograms Treaty (WPPT), with a slight, but significant, modification. Article 5(1) of the WPPT reads: "Independently of a performer's economic rights, and even after the transfer of those rights, the performer shall, as regards his live aural performances or performances fixed in phonograms, have the right to claim to be identified as the performer of his performances, except where omission is dictated by the manner of the use of the performance, and to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation." Currently, Article 5 of the WPPT and Article 6bis of the Berne Convention are the only relevant moral rights provisions on the international level. Unfortunately, The Berne Convention is silent on the question on whether moral rights can be waived or alienated. It is for this reason some member countries allow the moral rights waiver.

Moral Rights; Perspective

Indian

The Copyright Act, 1957 recognizes the moral rights of an author as enunciated in Berne Convention and WPPT, Section 57 reads as follows: Author's special rights:[ (1) Independently of the author's copyright and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right (a) to claim the authorship of the work ;and (b) to restrain, or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work which is done before the expiration of the term of copyright if such distortion , mutiliationor other act would be prejudicial to his honor or reputation: Provided that the author shall not have any right to restrain or claim damages in respect of nay adaptation of a computer programme to which clause (aa) of sub-section (1) of section 52 applies.

Explanation-failure to display a work or to display it to the satisfaction of the author shall not be deemed to be an infringement of the rights confer by this section.] (2) The right conferred upon an author of a work by sub-section (1), other than the right to claim authorship of the work, may be exercised by the legal representative of the author.

Section 57 falls in Chapter XII of the Act concerning civil remedies. It is a statutory recognition of the special care with which the intellectual property is protected. The proviso to section 57 states that the author will not have the right to restrain of claim damages in respect of any adaptation of a computer programme by a lawful possessor of a copy of a computer programme, to utilise the computer programme for which it was supplied and to make backup copies as a temporary protection against loss. By the proviso, this section also confers the special rights on the authors of computer programmes. A computer programme is defined to mean a set of instructions expressed in words, codes, scheme, or in any other form including a machine, or recordable medium capable of causing a computer to perform a particular task or achieve a particular result. Under section 57, the author has a right to restrain infringement or claim damages for infringement of the copyright. This section provides an exception to the rule that after an author has parted with his rights in favour of a publisher or other person, the latter alone is entitled to sue in respect of infringement. These rights are independent of the authors copyright and the remedies open to the author under section 55 (relating to infringement of a copyright). 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 and remedies 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. This section prohibits any distortion, mutilation or other modification of the authors work. The words other modification are ejusdem generis with the word distortion and mutilation. The modification should not be so serious that the modified form of the work looks quite different work from the original. Modification in the sense of the perversion of the original, will amount to distortion or mutilation.

Judicial Precedents by Indian courts on Moral Right


The courts in India have been very cautious and sensitive as far as the cases on violation of moral rights are concerned. Time and time again they have proved that they are responsive to protecting the moral rights of an author.

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 else where. 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.
High Court of Delhi in its judgment in CS(OS) 2074/1992, Amar Nath Sehgal vs. Union of India decided on 21.02.2005 by Hon'ble Mr.Justice Pradeep Nandrajog have acknowledged the moral rights of plaintiff (author) even after transfer of economic rights. In this case the plaintiff was a renowned artist who was chosen to create a mural to decorate the wall of the lobby of Vigyan Bhawan. The artist, after extensive research and hard work of over half a decade, created a mural which was soon recognised as an important part of Indian cultural heritage. However, unfortunately the mural was removed from its place and was kept in a warehouse. This resulted in extreme anxiety for the artist and he brought an action seeking: Return of the work; declaration that all rights in mural vest in favour of author; declaration that the author (Mr Seghal) will have absolute right to recreate the mural at any place and sell the work; and damages and costs of the suit.

The Court noted that the work was too precious to be reduced to scrap and languish in a warehouse. It thus granted all of the above relieves in favour of the author. In fact, the Court went a step further and not only provided an injunction but also awarded damages of Rs. 500,000/- (US$11,000 approximately) to the artist, holding that he not only lost his reputation but also his peace of mind due to mutilation of the mural. The Court also held that all the rights in the mural vested in the plaintiff and he has absolute right to recreate the mural at any place and to sell the same. The Court rejected contentions raised by the Union of India, which mostly revolved round the assignment of the copyright and the contractual terms that were agreed by both parties, holding that moral rights are independent of author's copyright. They exist even after the assignment either wholly or partially. In Mannu Bhandari vs. Kala Vikas Pictures (Pvt) Ltd, The plaintiff had an objection to screening of the motion picture on the grounds that the picture was a distorted version of her novel that would undermine her reputation before students, research scholars and the literary world if it was allowed to be presented in its present form. The author objected to the change in name, modifications/ alterations in character and dialogues, and the climax of the movie which according to the plaintiff was changed. Providing due respect to the moral rights of the author (even after economic rights were duly assigned), the Court held that the dialogues which had been deleted from the film could not be described as necessary variations for the change in the medium ie, from literary to audio-visual. Additionally, the Court agreed that the novel's name should find a place in the title of the film. In doing so the Court upheld the moral rights of the author. The decision also vindicated the view that a film producer cannot make such alterations/ modifications in the original work of the author which will result in distortion of original work without the author's consent. In K.P.M. Sundhram vs. Rattan Prakashan Mandir the plaintiff, with his co-authors, licensed the economic rights in their works to the defendant to print and publish their works. However, after the sole and exclusive license was created, the plaintiff found that the defendant had been publishing their works in a modified form which mutilated and distorted the original works. Aggrieved by such modifications, the plaintiffs revoked the agreement to license the works to the defendant. The defendants still continued publishing the works and the dispute reached the court. Once again upholding the moral rights of an author even after licensing the economic rights, the Court held that after the revocation of agreement by the plaintiffs no right was left with the defendants to continue publishing and selling their works. It is worth mentioning here that the Indian Copyright Act, 1957 does not provide any mechanism of transfer of moral right rather it clearly distinguishes the rights under Section 57 from author's copyright.

Alienation of moral Rights


Moral rights are inalienable in the sense that they can be neither transferred to third parties nor relinquished altogether. They are personal to the author. To the extent that moral rights extend beyond the life of the author, they are passed on to the author's heirs upon the author's death in accordance with the applicable local rules. However, this does not mean that the author cannot authorize a third party to bring a moral rights claim in the author's name. More specifically, in addition to prohibiting an outright transfer of moral rights, it also sets a number of limits to the legally permissible content of copyright contracts.11

Can moral rights be sold or transferred?


No. Unlike copyright, moral rights cannot be transferred or sold. Berne Convention and WPPT clearly states Independently of the author's economic rights which shows that moral rights are different from copyright, which consists of economic rights (such as the right to reproduce the work), which can be assigned or licensed. Creators cannot assign, transfer or sell their moral rights. Creators can give consent for their work to be used in specific ways, but cannot assign the right to grant such consent. Where moral rights continue after the creator's death, they would be administered by the creator's legal personal representative.

Concluding Remarks
It is quiet clear from the above discussion that 'Moral Rights' noticeably diverse form the 'economic rights' of a creator(an author) and the 'Moral Rights' have not been given any monetary value these are "right of attribution" and "right of integrity" which can not be calculated in 'economic terms'. 'Economic rights' of an author vests in his/her copyright and copyright laws clearly provides different apparatus to transfer the copyright through assignment or license. Sale of author's 'Moral Rights' can not possible due to its clear distinction from 'economic rights' and 'sale' is purely an economic notion. Relying on the above judgments of Indian courts, it is note worthy that the 'moral rights' sustains even after the author transfers the economic rights. Therefore, it may not be possible for a 'buyer of moral rights' to claim "right of attribution and "right of integrity" as these rights perpetually vest in author only.