Moral Rights Moral Rights — — A Comparative AnalysisA Comparative Analysis

Project ASSIGNMENTPost-GRADUATE DIPLOMA IN Intellectual property rights law

Submitted by:SACHIN GARG

1192/2006

Moral Rights — A Comparative Analysis

Project AssignmentPost-Graduate Diploma in Intellectual Property Rights Law

Sachin Garg1192/2006

DECLARATION

Certified that this project report titled “Moral Rights — A Comparative Analysis” is my original work and that I have not taken or borrowed any material from others' work nor have I presented this partly or fully to any other Institution/College/University.

I have complied with all the formalities in this regard.

Date: 8 June, 2007 Sachin Garg1192/2006

Contents

1 Introduction 6

2 Intellectual Property 82.1 Brief History of Intellectual Property . . . . . . . . . . . . . . 92.2 Intellectual Property Rights Laws . . . . . . . . . . . . . . . . 11

2.2.1 Salient Characteristics of Intellectual Property RightsLaws . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

2.2.2 Indian Intellectual Property Rights Laws . . . . . . . 12

3 The Law of Copyright 133.1 Idea versus Expression . . . . . . . . . . . . . . . . . . . . . . 133.2 History of Copyright Law . . . . . . . . . . . . . . . . . . . . 14

3.2.1 Statute of Anne . . . . . . . . . . . . . . . . . . . . . . 153.2.2 Internationalisation of Copyright . . . . . . . . . . . . 15

3.3 Rights under Copyright Law . . . . . . . . . . . . . . . . . . . 183.3.1 How do the Rights work? . . . . . . . . . . . . . . . . 19

4 A Survey of Moral Rights 204.1 Civil Law Concept of Moral Rights . . . . . . . . . . . . . . . 214.2 International Acceptance of Moral Rights . . . . . . . . . . . . 22

4.2.1 Moral Rights under the Berne Convention . . . . . . . 224.2.2 Moral Rights under TRIPS . . . . . . . . . . . . . . . 23

4.3 What Constitutes Moral Rights? . . . . . . . . . . . . . . . . 234.3.1 Right of Disclosure . . . . . . . . . . . . . . . . . . . . 24

4.3.1.1 Civil Law Jurisdictions . . . . . . . . . . . . . 244.3.1.2 Common Law Jurisdictions . . . . . . . . . . 25

4.3.2 Right of Withdrawal . . . . . . . . . . . . . . . . . . . 264.3.2.1 Civil Law Jurisdictions . . . . . . . . . . . . . 264.3.2.2 Common Law Jurisdictions . . . . . . . . . . 26

4.3.3 Right of Attribution . . . . . . . . . . . . . . . . . . . 264.3.3.1 Civil Law Jurisdictions . . . . . . . . . . . . . 27

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4.3.3.2 Common Law Jurisdictions . . . . . . . . . . 284.3.4 Right of Integrity . . . . . . . . . . . . . . . . . . . . . 29

4.3.4.1 Civil Law Jurisdictions . . . . . . . . . . . . . 304.3.4.2 Common Law Jurisdictions . . . . . . . . . . 31

4.3.5 Visual Artists Rights Act (VARA) . . . . . . . . . . . . 324.4 Exceptions to,Waivers and Duration of Moral Rights . . . . . 32

4.4.1 Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . 334.4.2 Waivers and Transfers . . . . . . . . . . . . . . . . . . 334.4.3 Works Made for Hire . . . . . . . . . . . . . . . . . . . 344.4.4 Duration . . . . . . . . . . . . . . . . . . . . . . . . . . 35

4.5 Moral Rights in India . . . . . . . . . . . . . . . . . . . . . . . 354.5.1 Case Law . . . . . . . . . . . . . . . . . . . . . . . . . 364.5.2 Mannu Bhandari Case . . . . . . . . . . . . . . . . . . 364.5.3 Amar Nath Sehgal Case . . . . . . . . . . . . . . . . . 37

5 Whither Moral Rights? 39

Bibliography 43

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Preface

This project report titled “Moral rights” is being submitted as a part ofthe requirements for the Post Graduate Diploma in Intellectual PropertyRights Law programme offered by the Distance Education Department ofthe National Law School of India University, Bangalore.

The topic has been chosen as it is interesting to look at the possible chal-lenges that intersection of Information Technology, Digital Media, ComputerSoftware and Copyright Law will bring. I have looked at but a narrow partof the story — Moral Rights or Droit Moral, a set of rights which prima faciego against the avowed reasons for copyright’s stated purposes — enrichmentof the Public Domain. The immediate impetus for this topic came when Ilooked at the Employment Agreement for one of my friends, which stated:

You also hereby irrevocably transfer and assign to [Employer]1,and waive and agree never to assert, any and all Moral Rightsyou may have in or with respect to any work, documentation,designs and materials, patents, copyright or any other form ofintellectual property, whether protected under law or not, evenafter termination of your work during or after the tenure of youremployment.

This clause got me thinking about the supposed inalienability and non-waiverof the Moral Rights and what is the exact Indian position on waiver of suchrights (whether these rights can be waived in a Indian context), and exactly(since this was for a software development job), what could be the impactof Droit Moral on software development and especially for the world of Freeand Open Source Software.

I have tried to do some research into these topics by looking at the avail-able research and also attempted an Indian perspective on the same.

1name deleted

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Acknowledgements

At the outset, I would like to record my gratitude to the Free and Open SourceSoftware community for introducing me to the idea of Free Software. Thisidea and the interesting concept of “copyleft”made me realise how interestinga study of Law could be. Hearing Prof. Eben Moglen speak in August, makeme do this course even more.

I wish to thank Dr. T. Ramakrishna, Co-ordinator, CIPRA, NLSIU forinfusing me with the spirit of discovery and making me look into these obscurequestions. I would like to thank my friend, Aman Shahi, whose employmentcontract gave me the spark I wanted. I also wish to thank my fellow course-mates for being so inquisitive and interested in the contact classes, whichhelped us shed light on some of the more obscure questions of law.

Many thanks are due to my family – my parents and siblings for sup-porting me through this course and egging me on to complete it. I wouldespecially like to thank my sister-in-law Payal Agarwal, for helping me pro-cure some important research material from her university library. I haveto specially mention the contribution of my wife Kshma who constantly mo-tivated me, accepted the busy schedule with equanimity and sacrificed herweekends for my studies.

I apologise to my little bundle of sunshine, Sameeksha who couldn’t un-derstand why her father was cross with her and bore it all in stride.

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Chapter 1

Introduction

The world of Intellectual Property Rights (IPR) law is at a crossroads. Thepervasive use of digital technologies is making us question the basic premisesunderlying Intellectual Property Rights and how it should be managed so asto ensure that “Free Culture” remains free, the public domain continues tobe enriched, while ensuring creativity gets due returns.

In this work, we will look at the other, often overlooked aspect of copyrightlaw — “Moral Rights” and how they may work in the context of the digitalage. The concept of Moral Rights or Droit Moral, the foundation of which liesin the concept of “author’s right”—upon which the copyright of continentalEurope is built, are a set of rights which persist with the author even afterhe has transferred his economic rights to another. Prima facie, this wouldseem to hinder the exploitation of said work and also be at conflict with oneof the avowed reasons for copyright’s stated purposes — enrichment of thePublic Domain.

We will try to understand whether this is really the case by looking at

• the underpinnings of Intellectual Property and Copyright Law,

• a detailed analysis of what Moral Rights are,

• how Moral Rights work around the world,

• Moral Rights in India,

• finish off with some open questions, especially with regards to the po-tential impact of Moral Rights on software development

This work has been organised as follows:

• Chapter 2 looks at the basic premises behind Intellectual PropertyRights and a brief history of the same

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• Chapter 3 looks at Copyright Law in detail — history, rights associatedwith Copyrights and a fuller treatment of Moral Rights

• Chapter 4 is a brief survey of Moral Rights, comparing and contrastingthe application of this doctrine amongst the Civil Law and CommonLaw jurisdictions. It also looks at the state of Moral Rights in India.

• We end up by discussing the future of Moral Rights and ask certainquestions in Chapter 5.

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Chapter 2

Intellectual Property

Intellectual Property Rights is an umbrella term used for a bundle of exclusiveand negative rights vested in relation to “property” created by the labours ofthe mind. These are in relation to the particular form or manner in whichideas or information are expressed or manifested, and not in relation to theideas or concepts themselves.

The charter of the World Intellectual Property Organization (WIPO) says 2:

“intellectual property” shall include the rights relating to:

• literary, artistic and scientific works,

• performances of performing artists, phonograms, and broad-casts,

• inventions in all fields of human endeavor,

• scientific discoveries,

• industrial designs,

• trademarks, service marks, and commercial names and des-ignations,

• protection against unfair competition,

• and all other rights resulting from intellectual activity in theindustrial, scientific, literary or artistic fields

The above list includes a number of fields of endeavour and the types of“prop-erty” they seek to protect. Hence, the protection mechanisms are also diverse

2Article 2 (viii) of the “Convention Establishing the World Intellectual Property Or-ganization, Signed at Stockholm on July 14, 1967”. Available at http://www.wipo.int/treaties/en/convention/trtdocs_wo029.html#P50_1504(Retrieved: 3 June, 2007)

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covering “copyright” (the first in the list above), “related rights” (second inthe list) and the rest governed by “industrial property” laws.

The term “Intellectual Property” itself has been much criticised 3:

The term “intellectual property” is at best a catch-all to lumptogether disparate laws. Non-lawyers who hear one term appliedto these various laws tend to assume they are based on a commonprinciple, and function similarly.

Nothing could be further from the case. These laws originatedseparately, evolved differently, cover different activities, have dif-ferent rules, and raise different public policy issues. as These lawsoriginated separately, evolved differently, cover different activi-ties, have different rules, and raise different public policy issues.

Nevertheless, we will continue to use this term for lack of a better or rathermore pervasive term for the same. In this report we will be concentratingon Copyright, especially the concept of “Moral Rights” as associated withCopyright.

2.1 Brief History of Intellectual Property

The concept of intellectual property–the idea that an idea can beowned–is a child of the European Enlightenment4.

The ancients believed in the free flow of knowledge, on the premise thatknowledge was sacred and handed down by the Gods, with humans beingmere disemminators of the same. In the 16th Century, Martin Luther wouldsay

Freely have I received, freely I have given, and I want nothing inreturn5.

Still, ideas did not flow freely and were still subject to state censorship in theguise of a grant of Royal “privileges” (monopolies) in exchange for submissionto state censorship and control6. Over the years, a view started pervading

3Richard Stallman, Did You Say “Intellectual Property”? It’s a Seductive Mirage.Available at: http://www.gnu.org/philosophy/not-ipr.xhtml (Retrieved: 3 June,2007)

4Hesse, 2002, p. 26.5Hesse, 2002, p. 28.6Hesse, 2002, pp. 29–31.

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that talked about a “natural property right” of authors in their intellectualwork. Two key works that were proponents of this was the 1690 “SecondTreatise”of John Locke’s and Edward Young’s“Conjectures on Original Com-position” published in 1759. John Locke wrote in the Second Treatise:

every Man has a Property in his own Person. This no Body hasany right to but himself. The Labour of his Body, and the Workof his Hands, we may say, are properly his7.

A Germal philospher Johann Gottlieb Fichte suggested in an essay titled“Proof of the Illegality of Reprinting: A Rationale and a Parable (1791)”that for an idea to be regarded as a piece of real property, it had to beassigned some unique distinguishing characteristic that allowed one person,and no other, to claim it as his own. He said that this unique quality lay notin the ideas per se, but rather in the manner in they were expressed.

Fichte’s distinctions – between the material and the immaterialbook, and between the content and form of ideas – were to becritical in establishing a new theory of copyright based on thenatural right to property in the unique expressions of ideas, ratherthan in the ideas themselves 8.

But, on the other hand we had people who were arguing against this sortof treatment to the “nascent” concept of Intellectual Property. In 1776, theFrench mathematician and philosopher Condorcet expressed deep reserva-tions on a philosophical plain. He disputed the Lockean line of argument:

There can be no relationship between property in ideas and [prop-erty] in a field, which can serve only one man. [Literary property]is not a property derived from the natural order and defended bysocial force; it is a property founded in society itself. It is not atrue right; it is a privilege9.

According to Condorcet, ideas exist because of the interaction of man and hissociety. They are intrinsically “social” and the “fruit of a collective process ofexperience”. He said that “if ideas, as social creations, were to be recognizedas a form of property, it must not be on the basis of an individual naturalright but rather on the basis of the social utility of a property-based regime”.Thus Condorcet erected a second, alternative pillar for the modern notion ofintellectual property: social utilitarianism10.

7Hesse, 2002, p. 33.8Woodmansee, 1984 cited in Hesse, 2002, p. 35. This is termed as the “Idea–

Expression Dichotomy” of Copyright (§3.1).9Hesse, 2002, p. 35.

10Hesse, 2002, p. 36.

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2.2 Intellectual Property Rights Laws

We see that Locke’s Personality Theory is pitted against Condorcet’s viewof Social Utilitarianism. Over the years, many points of view have emergedin favour of either of these two camps and Intellectual Property (or Rights)Laws have tried to strike a fine balance these two conflicting views, with thetwin motives of

• ensuring the public domain is enriched

• incentivising producers to contribute to the common stock,

by providing certain monopolies for a limited period. These laws aim toreduce hoarding of knowledge and ensure freer and wider dissemination ofthe same.

The so-called “Copyright Clause” (Article I, Section 8, Clause 8) of theUnited States Constitution empowers Congress

To promote the Progress of Science and useful Arts, by securingfor limited Times to Authors and Inventors the exclusive Rightto their respective Writings and Discoveries 11.

This has been interpreted to mean that the public good is the primary reasonfor such power, while still ensuring that the author has a “fundamental,eclusive right to control his work”12. James Madison, the framer of the USConstitution’s Copyright Clause stated 13:

The utility of the power will scarcely be questioned. The copy-right of authors has been solemnly adjudged, in Great Britain, tobe a right of common law. The right to useful inventions seemswith equal reason to belong to the inventors. The public goodfully coincides in both cases with the claims of individuals.

2.2.1 Salient Characteristics of Intellectual PropertyRights Laws

Some of the salient features of laws relating to Intellectual Property are:

11Wikipedia article at: http://en.wikipedia.org/wiki/Copyright_Clause retrieved7 June, 2007.

12Gunlicks, 2001, pp. 602–603.13Gunlicks, 2001, p. 603. For a fuller treatment and a contextual analysis of this

statement see Bell, 2002

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• Territorial in nature14,

• Time limited monopolies,

• Bundle of negative rights15, and

• Not absolute. Certain “fair use” provisions exist.

2.2.2 Indian Intellectual Property Rights Laws

Towards this end, we have a number of laws that address different typesof knowledge (the Indian Acts that correspond to the same are given inparantheses):

• Copyrights (Copyright Act, 1957 (amended 1994))

• Patents (Patents Act, 1970 (amended 2002))

• Trademarks (Trademarks Act, 1999 (replaces Trade and MerchandiseMarks Act, 1958))

• Plant Varieties (Protection of Plant Varieties and Farmers’ Rights Act,2001)

• Geographical Indications (The Geographical Indications of Goods (Reg-istration and Protection) Act, 1999)

• Biodiversity (the Biological Diversity Act, 2002)

• Industrial Designs (The Designs Act, 2000 (replaces the Designs Act,1911))

• Integrated Circuits Layout (The Semiconductor IC Layout-Design Act,2000)

• Trade Secrets (No Indian law for this, comes under purview of Contractlaw, Torts etc.)

• Traditional Knowledge (comes under the combined purview of Patents,Plan Varieties and Bio-diversity etc.)

In this work, we will be only looking in detail at Copyright Law in Chapter3.

14Certain international treaties and conventions exist so as to attempt to harmonisesome of the features of various jurisdictions and offer extra-territorial protection. See§3.2.2

15A negative right helps the holder of the right to prevent others from doing somethingthat only the right holder is entitled to

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Chapter 3

The Law of Copyright

Copyright is a right given by the law to creators of literary, dra-matic, musical and artistic works and producers of cinematographfilms and sound recordings. In fact, it is a bundle of rights in-cluding, inter alia, rights of reproduction, communication to thepublic, adaptation and translation of the work. There could beslight variations in the composition of the rights depending onthe work 16.

3.1 Idea versus Expression

The Idea–Expression dichotomy is an integral part of copyright. As discussedin § 2.1, Fitche suggested that the precise way in which ideas were expressedwas important, rather than the idea itself. This has been taken forward andCopyright specifically requires the “fixation” of an idea to a concrete mediumbefore it can get protection. This implies that the same idea can be expressedby different people in different ways and would be considered distinct 17.

At times it becomes tough to be able to separate precisely what consti-tutes the “idea” and what is the “expression”. Also, in some cases, there arevery few ways of expressing a particular idea, the idea and expression areintertwined to an extent it is impossible to demerge them. In such a casethe “Merger Doctrine” takes hold and the “Idea–Expression” itself becomesuncopyrightable.

16“A Handbook of Copyright Law”published by the Department of Secondary Educationand Higher Education, Ministry of Human Resource Development, India . Available athttp://www.copyright.gov.in/handbook.htm (Retrieved: 6 June, 2007)

17Subject to there being sufficient difference between the two expressions, so that one isnot the mere reproduction of the other.

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3.2 History of Copyright Law

The London guild of printers, bookbinders, and booksellers known as theStationers’ Company was created by Royal charter in 1557 by the En-glish monarch, Mary I. The Guild was organised as a monopoly such thatonly Guild members were allowed to practice the art of printing. The masterand wardens of the society were empowered to search, seize, and burn allprohibited books, and to imprison any person found to be printing withouta license. From 1557 to 1641, the English Crown exercised authority overprinting and the Stationers’ Company through the Star Chamber. Afterthe abolition of the Star Chamber in 1641, the English Parliament contin-ued to extend the Stationers’ Company’s censorship/monopoly arrangementthrough a series of ordinances and Licensing Acts between 1643 and 1692.

During its time, the Stationers’ Company developed a private systemfor handling disputes between its members (sometimes referred to as a Sta-tioner’s Copyright). Under this system, specific Guild members held monopolyrights in a particular work that were treated as being perpetual. AlthoughGuild members could purchase a manuscript from an author, authors couldnot become members of the Guild and were not entitled to any royalties oradditional payments after purchase. Members were allowed to buy and sellrights over particular works to each other. As a method to keep track of whichmembers claimed rights in what works, the Guild required that copyrightsbe recorded in a registration book at the Guild’s Hall. The Licensing Act of1662 also required printers to deposit a copy of each work with the Guild toprevent changes to the work after it was reviewed by censors. Many aspectsof the Stationers’ system were later incorporated into modern copyright laws.

Following the English Civil War, which was partly fought over the Crown’sabuse of monopolies, the Stationers’ power was threatened when the last Li-censing Act expired in 1694. Without their monopolies, London’s booksellersfaced an unregulated influx of cheap texts printed outside Britain, and inScotland, that began flooding the English market.

Finally, in 1710, the world’s first modern copyright statute was enacted—The Statute of Anne, 8 Anne, ch. 19 (1710)18.

18See the Wikipedia article on ”History of copyright law” at http://en.wikipedia.org/wiki/History_of_copyright_law (Retrieved 7 June, 2007)

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3.2.1 Statute of Anne

The Statute of Anne19 is considred to be the world’s first modern copyrightstatute. Although, the statute created a system of monopoly rights, it made3 major changes in the way these rights came about and who enjoyed them:

1. it directly outlined a public copyright system that applied to the publicin general

2. recognized a copyright as originating in the author

3. placed a time limitation on the monopoly enjoyed by holders of a copy-right. Specifically, the Act provided that an owner of the copyright inany book already printed should have the exclusive right of publishingit for twenty-one years. For works not yet published, the act providedan exclusive right to publish for 14 years from the time of first pub-lication, with the stipulation that the right could be extended by anauthor for another 14 years.

It took some time for the concept of the “public domain” free of monopolyrights, wherein works whose copyright had expired would fall into, and ittook the landmark case of Donaldson v. Beckett (1774) to reject the notionof a perpetual common-law copyright.

3.2.2 Internationalisation of Copyright

There have been various traties and conventions signed amingst the countriesof the world to attempt to harmonise their laws and regulations so as toafford some amount of protection to works in each other’s countries. India isa signatory to the following:

1. Berne Convention (Berne Convention for the Protection of Literary andArtistic Works) first adopted in Berne, Switzerland in 1886. It was re-vised in Paris in 1896 and in Berlin in 1908, completed in Berne in 1914,revised in Rome in 1928, in Brussels in 1948, in Stockholm in 1967 andin Paris in 1971, and was amended in 1979. It set up a bureau to handle

19 Short title “Copyright Act 1709 8 Anne c.19”. Long title: “An Act for the En-couragement of Learning, by vesting the Copies of Printed Books in the Authors or pur-chasers of such Copies, during the Times therein mentioned”. See the Wikipedia articleat: http://en.wikipedia.org/wiki/Statute_of_Anne (Retrieved: 7 June 2007)

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the administrative tasks, which subsequently became the WIPO–WorldIntellectual Property Organisation (now a UN agency)2021.

2. Universal Copyright Convention (or UCC), adopted at Geneva in 1952,is the other principal international convention protecting copyright. Setup under the aegis of the UNESCO–United Nations Educational, Scien-tific and Cultural Organization as an alternative to the Berne Conven-tion for those states which disagreed with aspects of the Berne Con-vention, but still wished to participate in some form of multilateralcopyright protection. With the growth of the WTO and TRIPS (seebelow), the UCC has lost significance22.

3. Rome Convention (Rome Convention for the Protection of Perform-ers, Producers of Phonograms and Broadcasting Organisations) wasaccepted by WIPO members on October 26, 1961. It was drawn upin response to new technologies like tape recorders that made the re-production of sounds and images easier and cheaper than ever before.Whereas earlier copyright law, including international agreements likethe 1886 Berne Convention, had been written to regulate the circulationof printed materials, this Convention covered performers and producersof recordings under copyright—for the first time, copyright protectionwas extended from the author of a work to the creators and ownersof particular, physical manifestations of intellectual property, such asaudiocassettes or DVDs23.

4. Agreement on Trade-Related Aspects of Intellectual Property Rights(TRIPS)24 is an international agreement administered by the WorldTrade Organization (WTO) that sets down minimum standards formany forms of intellectual property (IP) regulation. It was negotiatedat the end of the Uruguay Round of the General Agreement on Tariffsand Trade (GATT) in 1994. It is a comprehensive agreement, not

20See the Berne Convention at the WIPO website: http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html (Retrieved: 7 June, 2007)

21Read the Wikipedia article on Berne Convention at: http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works (Retrieved: 7 June, 2007)

22The Wikipedia article on UCC is at: http://en.wikipedia.org/wiki/Universal_Copyright_Convention (Retrieved: 7 June, 2007)

23Read theWikipedia article at: http://en.wikipedia.org/wiki/Rome_Convention (Retrieved: 7 June, 2007)

24Read the TRIPS Wikipedia article at: http://en.wikipedia.org/wiki/Agreement_on_Trade-Related_Aspects_of_Intellectual_Property_Rights

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covering only copyright, but rather contains requirements that nations’IPR laws must meet

copyrights including the rights of performers, producers of soundrecordings and broadcasting organisations

Geographical Indications including appellations of origin

Industrial Designs

Integrated Circuit layout-designs

Patents

Plant Varieties protection

Trademarks and trade dress

Undisclosed or confidential information.

It also specifies enforcement procedures, remedies, and dispute resolu-tion procedures.

For copyright it stipulates

• Copyright terms must extend to 50 years after the death of theauthor, although films and photographs are only required to havefixed 50 and 25 year terms, respectively.

• Copyright must be granted automatically, and not based upon any”formality”, such as registrations or systems of renewal.

• Computer programs must be regarded as ”literary works” undercopyright law and receive the same terms of protection.

• National exceptions to copyright (such as ”fair use” in the UnitedStates) must be tightly constrained.

The copyright provisions of TRIPS are tied intimately to the BerneConvention25

Members are obliged to comply with the substantive provi-sions of the Paris Act of 1971 of the Berne Convention, i.e.Articles 1 through 21 of the Berne Convention (1971) andthe Appendix thereto.

with the following exception

25Overview of TRIPS copyright provision at the WTO website: http://www.wto.org/english/tratop_e/trips_e/intel2_e.htm#copyright (Retrieved: 7 June, 2007)

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However, Members do not have rights or obligations underthe TRIPS Agreement in respect of the rights conferred underArticle 6bis of that Convention, i.e. the moral rights (theright to claim authorship and to object to any derogatoryaction in relation to a work, which would be prejudicial tothe author’s honour or reputation), or of the rights derivedtherefrom. 26

3.3 Rights under Copyright Law

The “bundle of rights” that the holder of the copyright gets under the IndianCopyright Act, 1957 (as amended in 1994) include two types of rights:

Economic Rights: those rights whose exploitation may bring economicbenefits to the copyright holder. These rights can be exploited either bythe author, or they can partially or wholly assigned or licensed. Theserights include the right

• to reproduction

• to issue copies

• of performance

• of communication to the public

• to make any cinematograph film or sound recording in respect ofthe work

• to translation

• to adaptation

Moral Rights or (Droit Moral) are special rights vested in the author be-cause he is the creator. They are independent of the Economic Rightsand run parallel to them. Article 6bis of the Berne Convention hasrecognised these rights and require member countries to provide themto the author. In India, these rights are inalienable and cannot bewaived. These rights include

• Right to Paternity

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See §4.2.1 for more on Moral Rights under the Berne Convention.

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• Right to Integrity

This work will look in greater detail at the Moral Rights: what theyare, why they exist and how they exist in various jurisdictions startingfrom Chapter 4.

3.3.1 How do the Rights work?

As already stated, these rights serve as a bundle of negative rights, thatis prevent others from enjoying the fruit that comes from exploiting theserights. For example, only the copyright holder can issue copies (publish) orget published a particular work. If someone else tries to publish said workwithout permission of the copyright holder, then he can be enjoined fromdoing so.

Also, no one can coerce the copyright holder into exploiting said work.As with all systems, these monopoly rights are not absolute and have

certain checks and balances built in, especially considering the “public good”theory of Intellectual Property (see §2.2). Exceptions exist in the form of“fairuse” provisions and certain uses (compulsory licensing) in the public interest.

Both civil and criminal remedies are available for instances of infringe-ment. The civil remedies include injunctions and damages. In India copy-right infringment is a cognizable offence punishable by imprisonment rangingfrom 6 months to 3 years and/or a fine ranging from Rs. 50,000/= to Rs.2,00,000/=.

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Chapter 4

A Survey of Moral Rights

The “Moral Rights” theory grants authors of copyrightable works certaininalienable rights in their works that supplement the set of economic rightstraditionally granted to copyright holders in all jurisdictions. Such rights aresupposed to protect their moral or personal, non-economic interests. Thereasoning behind protecting such interests is the presumed intimate bondbetween authors and their works, which are almost universally understoodto be an extension of the author’s personhood27.

The term “moral right” derives from the French expression “droit moral”and is a misnomer in the sense that moral rights are neither the opposite ofimmoral rights nor of legal rights. Instead, moral rights are meant to be theopposite of economic rights, which is what the traditional set of copyrightentitlements is often called in Continental Europe2829. The four basic rightsthat are understood to form the core of the droit moral suite according toFrench and German law are30313233:

1. Right to publish – the right to decide whether, when, how and by whomthe work will be made public

2. Right to retract – the right to prevent a public dissemination of thework prior to or after publication, provided the author meets certainconditions

27Rigamonti, 2006, p. 355.28See note 11 in Rigamonti, 2006, p. 355 and also note 15 in Gunlicks, 2001, p. 604 .29See note 15 in Rigamonti, 2006, p. 356 for the German term which translates to

“author’s right of personality”.30Gunlicks, 2001, p. 608.31Vetter, 2004, p. 650.32Rigamonti, 2006, p. 356.33Hansmann and Santilli, 1997, pp. 95–96.

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3. Right of attribution – the right to receive credit for a published work inthe fashion that the author wishes

4. Right of integrity – the right to prevent or be compensated for any ac-tions that mutilate, damage, or materially alter the substance of theauthor’s original work and that do harm to the authors honor or repu-tation; and

These rights are generally inalienable and not waivable34.

4.1 Civil Law Concept of Moral Rights

As discussed above, and considering the “personhood” basis, moral rights arerights of authors, which is to say that only those human beings who actuallycreate the work in question qualify as owners of moral rights. This excludescorporate entities and employers who hire third parties to create works fromthe ambit of moral right holders35. These rights are meant to protect authorswho actually create the work in question as opposed to those who finance orcommission the creation of such work and who may qualify as initial copyrightowners under the work-for-hire doctrine36. Interestingly, some regimes incontinental Europe do not recognise the work-for-hire doctrine37.

In civil law jurisdictions, moral rights are treated as structurally similar toeconomic rights and considered an integral part of copyright law. This is theessence of the “droit d’auteur”(right of the author)38 approach to copyright,which is generally viewed as the defining feature of Continental Europeancopyright theory.

Moral rights are inalienable in the sense that they can be neither trans-ferred to third parties nor relinquished altogether. They are personal tothe author. If they extend beyond the life of the author (See Paragraph 2,§4.2.1), they are passed on to the author’s heirs upon the author’s death inaccordance with the applicable local rules. This element of inalienability isby far the most controversial characteristic of the civil law concept of moralrights, because it interferes with the principle of freedom of contract betweenauthors and users of copyrightable works39.

34The UK allows waivers of the moral rights. For a fuller discussion, see Rigamonti,2006, pp. 402–403

35Rigamonti, 2006, p. 359.36Rigamonti, 2006, p. 360.37See note 44 at Rigamonti, 2006, p. 36038See Wikipedia article on French copyright law at: http://en.wikipedia.org/wiki/

French_copyright_law (Retrieved: 7 June, 2007)39Rigamonti, 2006, p. 361.

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4.2 International Acceptance of Moral Rights

There is a significant schism in the way moral rights have been treated incountries adopting the Common Law or“Anglo-American”legal systems (UK,USA and derived legal systems) and those following the Civil Law or“Romano-Germanic” systems (Continental Europe, notably France and Germany)40.The Civil Law countries have followed the Moral Rights orthodox view thatthese rights are inalienable and non-waiveable, even perpetual in some juris-dictions (France and Italy)41, while the Common Law countries have beenhesistant in accepting them at all in their legal systems.

Classic examples of this are the UK, which despite being a signatory tothe Berne Convention42 since 1886, added statutory moral rights protectiononly with the passing of the Copyright, Designs and Patents Act in 198843.The USA acceded to the Berne Convention only in 1988, a hundred yearsafter it was established. One of the reasons for not signing was objections tothe moral rights clause4445. The US has a moral rights regime only for theVisual Arts by virtue of the Visual Artists Rights Act enacted in 1990.

We will do some amount of comparison between how the rights that con-stitute the “droit moral”work in both civil law and common law jurisdictionsin §4.3.

India, as a possible exception to the Common Law countries has hadmoral rights on its statute for a long time.

4.2.1 Moral Rights under the Berne Convention

The Rome revision conference of 1928 added Article 6bis Moral Rights46 tothe Berne Convention (§3.2.2, Item 1), which reads as:

1. To claim authorship; to object to certain modifications and other deroga-tory actions

Independently of the author’s economic rights, and even after the trans-fer of the said rights, the author shall have the right to claim authorship

40Gunlicks, 2001, p. 602.41Rigamonti, 2006, p. 361.42See 143Rigamonti, 2006, p. 400.44Hansmann and Santilli, 1997, p. 97.45Vetter, 2004, pp. 656–659.46See: http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P123_

20726 (Retrieved: 7 June, 2007)

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of the work and to object to any distortion, mutilation or other mod-ification of, or other derogatory action in relation to, the said work,which would be prejudicial to his honor or reputation.

2. After the author’s death

The rights granted to the author in accordance with the preceding para-graph shall, after his death, be maintained, at least until the expiry ofthe economic rights, and shall be exercisable by the persons or institu-tions authorized by the legislation of the country where protection isclaimed. However, those countries whose legislation, at the moment oftheir ratification of or accession to this Act, does not provide for theprotection after the death of the author of all the rights set out in thepreceding paragraph may provide that some of these rights may, afterhis death, cease to be maintained.

3. Means of redress

The means of redress for safeguarding the rights granted by this Articleshall be governed by the legislation of the country where protection isclaimed.

Paragraph 1 talks about the rights of Paternity and Integrity and also ensuresthat the moral rights are independent of the economic rights and continue tovest with the author even after the transfer of the same. Paragraph 2 saysthat the protection term for the 2 moral rights be atleast as long as that forthe economic rights, with the caveat that countries whose legislation doesnot provide protection (of moral rights) post the author’s death need notcontinue to protect these rights. Paragraph 3 puts moral rights on an equalfooting with economic rights in the event of any infringement.

4.2.2 Moral Rights under TRIPS

As already discussed in §3.2.2, Para 4, the “Agreement on Trade-Related As-pects of Intellectual Property Rights (TRIPS) while asking its members tocomply with the substantive provisions (Articles 1 through 21) of the BerneConvention (1971), explicitly removed references to the moral rights obliga-tions of the Berne Convention.

4.3 What Constitutes Moral Rights?

In the following sections, we look at closer detail at the four rights discussed inthe beginning. Side-by-side, we also look at how Common Law jurisdictions

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that do not implement the specific moral rights also tend to give the sameeffect as the droit moral.

4.3.1 Right of Disclosure

The right of disclosure entitles authors to decide when their works are com-plete and when they are ready for publication and commercialization47.

4.3.1.1 Civil Law Jurisdictions

The French author is at complete liberty to control the manner and conditionsof publication and to avoid any non-consensual publication, courtesy Article19 of the French copyright law which grants the sole right to publish thework to the author. Hence, the right to publish is dependent on the author’sexpress or implied (from the circumstances) consent.

Authors maintain a host of rights under French law and cannot be coercedinto publishing their work, for example, creditors are prohibited from seizingan unpublished work without the author’s consent4849, public lectures do notin and of themselves constitute publication. The author also has a stronginterest in protecting his right to review and correct his work.

An abandonment of a work does not permit a third party to publish it.An example is the case that involved an artists who became dissatisfied withseveral painting and threw them out. They were recovered by someone, andput up for sale, after being identified as the artist’s work. The artist suedto prohibit the sale , and won on the argument that he had the sole right todecide whether the artistic work could be disclosed to the public50.

French copyright law allows an author to refuse to deliver his work to apurchaser despite contractual obligations, though the author will be liablefor restitution and damages. The case of Whistler v. Eden, wherein theAmerican painter James McNeill Whistler, who had been commissioned bySir William Eden to paint a portrait of his wife, refused to hand it over after adisagreement about the proper price, and Sir Eden sued for the painting.Thecase went up to the highest court in France, the Cour de Cassation, whichaffirmed the appellate court’s decision that Whistler could not be forced tosurrender the painting, that he was obliged to return the payment he hadalready received, and that he was enjoined from using the painting without

47Rigamonti, 2006, pp. 362–263.48Gunlicks, 2001, p. 614.49Rigamonti, 2006, p. 362.50Hansmann and Santilli, 1997, pp. 136—137.

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rendering the face of Sir Eden’s wife unrecognizable5152.Also, the moment of delivery is not determined by actual delivery of the

work, but by the author’s decision that the work is completed.In Germany, the right to publish is protected by Article 12 of the copyright

law and Article 6 reinforces the notion that a publication can occur only withthe author’s consent. No one can publish the work or a description thereofwithout the author’s consent. This consent can also be implied, for examplea communication to a broad public audience can constitute a consensualpublication53

4.3.1.2 Common Law Jurisdictions

The “Right of Disclosure” also has parallels in Common Law copyright law,having been protected in the UK since 173254. Rigamonti in DeconstructingMoral Rights , at 381:

One of the first known judicial statements mentioning the inter-ests underlying moral rights in a common law context was madeby Lord Mansfield when he argued in favor of common law pro-tection “of the copy prior to publication” in the 1769 landmarkcase of Millar v. Taylor :

[B]ecause it is just, that an author should reap the pe-cuniary profits of his own ingenuity and labour. It isjust, that another should not use his name, without hisconsent. It is fit, that he should judge when to pub-lish, or whether he ever will publish. It is fit he shouldnot only choose the time, but the manner of publica-tion; how many; what volume; what print. It is fit, heshould choose to whose care he will trust the accuracyand correctness of the impression; to whose honesty hewill confide, not to foist in additions.

The right has also had statutory protection under various US CopyrightActs55 and other“unnamed common law right and a vague notion of propertyto breach of confidence and trust. American courts followed the Englishcourts in applying the decisional rule underlying the right of disclosure by

51Rigamonti, 2006, p. 373.52Hansmann and Santilli, 1997, p. 136.53Gunlicks, 2001, pp. 615—661.54Gunlicks, 2001, p. 609.55Gunlicks, 2001, p. 611.

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acknowledging a right to prevent the unauthorized publication of a work”56.It was explicitly incorporated in 1976 so as to make American law conformto the Berne Convention57.

4.3.2 Right of Withdrawal

The right of withdrawal empowers authors to retract the economic rightsthat they may have assigned or licensed to a third party in order to enablethat third party to exploit the work58.

4.3.2.1 Civil Law Jurisdictions

In the Civil Law Jurisdictions, this may only happen if the authors indem-nify the other party to the contract in advance. This right is only availableto authors of published works and not to visual artists59. Also, the right ofwithdrawal may not be exercised for just any reason. The German copy-right statute specifically states that the right of withdrawal can be exercisedonly if authors can no longer reconcile the contents of their works with theirpersonal convictions, and the Italian copyright statute explicitly requires “se-rious moral reasons”.

4.3.2.2 Common Law Jurisdictions

A parallel in case of the United States is the limited right of retraction grantedby the Copyright Act that allows the author the right to void a contractwithout cause after thirty-five years6061.

4.3.3 Right of Attribution

The right of attribution entails three interrelated rights62:

1. the right to claim recognition as the author of a work

56Rigamonti, 2006, p. 383.57Till 1978, the economic rights available under American statutory copyright law were

limited to published works Rigamonti, 2006, p. 38258Rigamonti, 2006, pp. 362–263.59See Hansmann and Santilli, 1997, p. 139 and Hansmann and Santilli, 1997,

p. 141 for a possible explanation of why this is so.60Gunlicks, 2001, p. 648.61But, see Rigamonti, 2006, pp. 388—389 for a discussion on why both are not the

same.62Gunlicks, 2001, pp. 620–630.

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2. the right to use an alternative attribution—to remain anonymous or touse a pseudonym

3. the right to prevent a false attribution, i.e., to prevent others frominaccurately describing the author’s contribution to a certain work.

4.3.3.1 Civil Law Jurisdictions

Right to claim recognition as the author of a work French lawrequires that the author’s name appear on every copy of the work. It alsocontains further and stricter attribution requirements like all advertisementsand publicity materials related to a work must give the author credit. Evenif he contracts to use a pseudonym or remain anonymous, the author can de-mand recognition under his own name at any time and is entitled to damagesif the demand is ignored.

German copyright law provides that the “author shall have the right ofrecognition of his authorship of the work” and that the author determines“whether the work is to bear an author’s designation and what designationis to be used.”

Both laws also require that the author must receive recognition every timehis work is quoted.

These provisions have certain limitations limitations. In Germany, whenthe author has not expressly contracted to protect the right to attribution,the right can be limited under certain circumstances–the author is precludedfrom claiming authorship if the custom and usage of the industry, good faith,or the nature of an employment relationship weigh against attribution.

French law limits the author’s his means of redress. In general, Frenchlaw gives a “broad right to sue, but a limited right to recover”. Often, theauthor is entitled only to damages for a failure to attribute.

Right to use an alternative attribution Though French law doesnot expressly protect the right to alternative attribution, certain provisions ofthe French Copyright law make clear the author’s right to use a pseudonym orto remain anonymous. This right is expressly protected under German law.Both laws prevent the publisher from revealing the author’s true identity,against his will, on the work or any copy.

Unlike French law, the German law binds the author to the terms of thecontract if an author expressly contracts to use an alternative attribution. Anexception applies to this scenario if the author must prove his authorship inresponse to attacks on it, or if the work enjoys unforeseeable success. Absent

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any express provision, the law will imply the right of an author to use hisreal name instead of an alternative attribution whenever he wishes to do so.

Right to prevent a false attribution Both French and German copy-right law grant an author the right to prevent the use of his name in con-nection with a substantially altered work. However, neither country’s lawprotects the right to prevent attribution for a work the author did not cre-ate. This right is protected by the more general “law of personality”, similarin some respects to the common law right to privacy.

4.3.3.2 Common Law Jurisdictions

Right to claim recognition as the author of a work American lawprotects the right to claim authorship in a number of ways starting from theCopyright Act. After a transfer of copyright, the author maintains his rightto claim attribution, either through explicit contract clause(s) or impliedthrough absence of any contractual attribution clause(s)63.

Even in the absence of claims under both copyright and contract, theauthor can pursue a claim under the theory of unfair competition—“passing-off” and “reverse passing-off”64. Section 43(a) of the Lanham (Trademark)Act65 can be used for this purpose6667.

Right to use an alternative attribution The Copyright Act takesfor granted that an author can publish his work under an alternative desig-nation, but the author does not have any express right to use a pseudonym

63The failure to attribute can constitute a breach of contract, because attribution “nec-essarily affects [the author’s] reputation and standing, and thus impairs or increases hisfuture earning capacity”: the author’s reputation is his “stock in trade” and the failure toattribute can cause him “irreparable injury”Gunlicks, 2001, p. 621.

64These terms are more often utilised in Trademarks rather in Copyright.6515 U.S.C. §1125(a) (1997)66Gunlicks, 2001, p. 622-624.67Given the need to keep separate the various fields of Intellectual Property Rights Law

(see various criticisms of the term“Intellectual Property”, e.g. 3), it may seem strange thatTrademark Law is being used to serve what is a function of Copyright Law (in the “droitmoral” regime). Though the use of Trademark in some cases could suffice (as Rigamontipoints out inDeconstructing Moral Rights, at 384-386 “To the extent that one accepts theright of non-attribution as a moral right, however, English and American cases on pointare easy to find since the author’s right to object to false attribution of authorship iswidely recognized on the grounds of libel, passing off, invasion of privacy, and trademarklaw.” arguing against the need for moral rights in the US), the consequences of the mergerof two different branches of IPR need to be analysed.

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or remain anonymous68. The author can control the manner of publishingthe work, including the attribution used, if he maintains the copyright. Else,he can gurantee alternative attribution by express contract provisions. Hisright to use a particular pseudonym will be protected under common lawand statutory unfair competition. It is unclear whether the author can pre-vent a transferee from using his real name gainst his wishes, absent specificcontractual provisions69.

Right to prevent a false attribution Under American law an authorcan prevent the attribution to him of a work:

• that he did not create

• which departs substantially from his original work

• which inaccurately describes the author’s connection to the work

Originally common law enforced these protections as “independent, authors’rights” and “to prevent fraud upon the purchasers”. Now, these independentauthors’ rights have been absorbed by the common law of unfair competi-tion70.

4.3.4 Right of Integrity

The right of integrity is often considered the most essential element of moralrights. It protects two interrelated concerns7172:

1. the author’s interest in preserving the integrity of his work, and

2. the author’s interest in preserving his reputation–a major factor in themarketability of his works

These acts to prohibit modifications to the work in question without theauthor’s consent. The Berne Convention (§4.2.1, Para 1) words this right as“the author shall have the right . . . to object to any distortion, mutilationor other modification of, or other derogatory action in relation to, the saidwork, which would be prejudicial to his honor or reputation”.

68Gunlicks, 2001, p. 626.69Gunlicks, 2001, p. 626.70Gunlicks, 2001, p. 628-629.71Gunlicks, 2001, p. 630.72Rigamonti, 2006, p. 364.

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4.3.4.1 Civil Law Jurisdictions

Both France and Germany go beyond the requirements of Article 6bis ofthe Berne Convention in that the modification in question does not have tobe detrimental to the author’s honor or reputation in order to qualify as aviolation of the right of integrity73. But even here, it is tempered by practicaleconomic concerns. The laws in both countries require an author to acceptreasonable, good faith alterations necessitated by the medium in which thework is presented. In essence, only unauthorized and unreasonable changesto the substance of the work will incur liability.

French law generally obligates publishers to reproduce and present orig-inal works faithfully and strictly, including the title and any prefaces or in-troductions. But it also takes the interests of publishers into account byallowing them to make necessary changes required by the medium of repro-duction. Contracts between the author and the publisher must be interpretedin good faith, an an author cannot make unreasonable demands based solelyon his moral right. The law also grants greater flexibility for derivative works.By their nature, derivative works require independent creative effort by theadapter and require alterations to the original work. Thus, the technologicalnature of the medium and the creative rights of the adapter should be evalu-ated when judging alterations. The law will allow changes that are necessaryto the adaptation as long as the substance of the work is not harmed74.

German copyright law provides the author with the general right to pre-vent “any distortion or any other mutilation of [the] work which would preju-dice [the author’s] lawful intellectual or personal interests in the work.” Thestatute also stipulates without the author’s consent, a licensee can not al-ter a work, its title, or the designation of the author. But, it also providesthat the author is bound by good faith to accept necessary alterations. Thelaw makes no distinction between original and derivative works, thereby in-dicating that any alterations made necessary by the authorized use of thework are allowed. Also, the terminology used in the German provisions onthe right to integrity, consisting of words like “justified interests”, “consent”,“good faith”, “necessary alterations”, “interests of others” etc. clarify thatthe “author’s interests should be weighed against possibly opposing equallyjustified interests”, and also take into account the custom and usage of therespective industry75.

73Rigamonti, 2006, p. 364.74Gunlicks, 2001, pp. 638—641.75Gunlicks, 2001, pp. 641—642.

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4.3.4.2 Common Law Jurisdictions

The Copyright Act protects the whole work, and also protects against anyunauthorized use of a substantial part of the work. This prohibition of copy-ing another’s work has also served to protect the integrity of a work in Com-mon Law copyright systems. Also, the copyright owner has the sole right tomake derivative works. Though these provisions can serve to protect the in-tegrity of the work with regards to third-party infringements (cases of tort),this right is not protected with regards to a contract scenario7677.

In such a scenario, one can take recourse to the law of unfair competitionif “the use being made of her literary production [is] such as to injure thereputation of the work and of the author” and amounts to a deception of thepublic78.

In Gilliam v. ABC 79, the Second Circuit determined that Section 43(a)applies when a work crediting an author has been altered “into a form thatdeparts substantially from the original work” without the author’s consent.Furthermore, the court found that Monty Python had a viable claim for the“mutilation” of its work. The court reasoned that authors must be able toprevent “the mutilation or misrepresentation of their work,” because to holdotherwise would contradict “the economic incentive . . . that serves as thefoundation of American copyright law”. Under Section 43(a), an author can“vindicate [his] personal right to prevent the presentation of his work to thepublic in a distorted form”80.

Other claims like defamation (if the alterations are substantial and injurethe author’s reputation) and breach of contract (“the established rule is that,even if the contract with the artist expressly authorizes reasonable modifi-cations . . . it is an actionable wrong to hold out the artist as author of aversion which substantially departs from the original”81.) can also arise.

76Gunlicks, 2001, pp. 631—634.77Cyrill P. Rigamonti, Deconstructing Moral Rights. Harvard International Law

Journal , 47 Summer 2006:2 〈URL: http://www.harvardilj.org/print/58〉, pp. 386—387.

78Gunlicks, 2001, p. 635.79Gilliam vs. ABC, 538 F.2nd cited at Rigamonti, 2006, pp. 386—387Gunlicks, 2001,

pp. 636—63780Gunlicks, 2001, pp. 636—637.81Gunlicks, 2001, p. 638.

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4.3.5 Visual Artists Rights Act (VARA)

The Visual Artists Rights Act (VARA)82, promulgated in 1990 is limitedto “visual art” which in this context “means a painting, drawing, print orsculpture existing in at least one original and at most two hundred signedand numbered copies”83.

VARA allows the author to assert the right “to claim authorship”. It alsogrants the author the right to “to prevent the use of his or her name” on awork the author did not create or in the event of a “distortion, mutilation, orother modification of the work which would be prejudicial to his or her honoror reputation . . . ”. The Act does not provide a right to remain anonymousor use a pseudonym84.

The rights of integrity are provided as prevention of “any intentional dis-tortion, mutilation, or other modification of [the] work which would be prej-udicial to his or her honor or reputation. . . ”85. The author also has the rightto prevent the destruction of “a work of recognized stature” incorporatedinto a building, whether or not the destruction injures the author’s honor orreputation86.

The rights contained in VARA are personal to the author and non-transferable. The author may however waive them be way of a signed, writteninstrument. The instrument must specifically identify the work and the usesof that work that are to be covered by the waiver. A mere transfer in own-ership of the work does not constitute a waiver of the author’s rights. Thus,unless waived, the author’s VARA rights remain vested in the work no matterhow often ownership is transferred. A broad limitation of the scope of the actresults from the exclusion of “works made for hire”. As with the copyright,the rights rest with the employer87.

4.4 Exceptions to,Waivers and Duration of

Moral Rights

In the preceding sections we have looked at the various rights and protectionsthat are considered part of the “droit moral” suite. We now look at whatspecific exceptions and waivers exist in various regimes and also how long do

8217 U.S.C. §106A (1997)83Gunlicks, 2001, p. 643.84Gunlicks, 2001, p. 644.85Gunlicks, 2001, p. 644.86Gunlicks, 2001, p. 644.87Gunlicks, 2001, p. 645.

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these rights subsist.

4.4.1 Exceptions

Gunlicks points out in A Balance of Interests: The Concordance of CopyrightLaw and Moral Rights in the Worldwide Economy , at 649, that members ofthe public in France and Germany have the absolute right to use the work asthey wish in private. It is only when a public use of the work is made thatthe moral rights protection kicks in. Both French and German law requireany public use of the work to give credit to the author, in keeping with theBerne Convention.

French law provides a number of fair-use exceptions with regards to theright of integrity. A work can be analyzed and quoted in various formsof abridgement such as criticism, review, academic presentations, as well asparody. Under German law fair uses under copyright must respect the right ofintegrity; however, mere extracts, as well as necessary, good faith alterationsare permitted.

In France, the scope of the right of integrity is reduced to the mere protec-tion of the author’s honor and reputation if the work is a computer program,while in Germany, a separate statutory regime was established for motion pic-tures and for works used in the production of motion pictures88. In the UK,the rights of attribution and integrity do not apply to computer programs, toworks made for hire, to works published in periodicals, or to collective worksof reference, and authors of musical works need not be named when the workis publicly performed89.

4.4.2 Waivers and Transfers

The Berne Convention is silent on the aspect of moral rights waivers. Hence,there is wide variation between the Convention’s member states regardingwaivers of such rights. Many states e.g. France allow no waivers, others haveno specific provisions.

A general set of rules that has emerged from the case law in France andGermany90:

• that authors cannot legally relinquish or abandon the rights of attribu-tion and integrity altogether,

88Rigamonti, 2006, p. 377.89Rigamonti, 2006, p. 402.90Rigamonti, 2006, p. 377.

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• that advance blanket waivers are unenforceable, and

• that narrowly tailored waivers that involve reasonably foreseeable en-croachments on the author’s moral rights are generally valid.

The United Kingdom, on the other hand has an exceptionally generous waiverregime. The CDPA91 allows authors and directors to validly consent to anyact that violates their moral rights. It also empowers them to fully waivetheir moral rights in advance with a signed written instrument92.

As per the Berne Convention “[i]ndependently of the author’s economicrights, and even after the transfer of the said rights. . . ”, countries do notallow these rights to be transferred.

4.4.3 Works Made for Hire

France and Germany do not generally apply the work-for-hire doctrine, ex-cept in the case of computer programs created in the scope of employment93.But, according to Gunlicks in A Balance of Interests: The Concordance ofCopyright Law and Moral Rights in the Worldwide Economy , at 651, the lawsdo allow a number of specific exceptions to moral rights for works-made-for-hire:

the moral rights of the employee are waived in favor of the em-ployer in certain circumstances. In France, moral rights auto-matically belong to the employer for many works made for hire.In Germany, the employer can reserve some moral rights for thework by contract. And in some instances, German law impliesthe consent of the employee to a waiver. Works prepared in thenormal course of business for the normal business purposes ofthe employer are treated like works-made-for-hire in the UnitedStates. And for motion pictures, German law deems the primaryauthors “to have granted to the producer the exclusive right toutilize” the work “in every known manner” and they can protestonly gross distortions of their contributions.

The UK too exempts works made from hire from the ambit of the rights ofattribution and integrity.

91The 1988 Copyright, Designs and Patents Act92Rigamonti, 2006, pp. 402—403.93Note 44 at Rigamonti, 2006, p. 360 and Gunlicks, 2001, p. 651

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4.4.4 Duration

Some European countries like France, Denmark, Italy and Portugal providefor perpetual protection for moral rights. Germany and the UK let the moralrights lapse with the economic rights94. The rights provided under the USVARA are only till the lifetime of the author95.

4.5 Moral Rights in India

Moral rights in India have been codified at §57 of the Copyright Act,195796, under the heading of “Author’s Special Rights”, which reads:

57. Author’s special rights—

1. Independently of the author’s copyright and even after the assignmenteither wholly or partially of the said copyright, the author of a workshall have the right —

(a) to claim authorship of the work; and

(b) to restrain or claim damages in respect of any distortion, mutila-tion, modification or other act in relation to the said work whichis done before the expiration of the term of copyright if such dis-tortion, mutilation, modification or other act would be prejudicialto his honour or reputation:

Provided that the author shall not have any right to restrain or claimdamages in respect of any adaptation of a computer programme towhich clause (aa) of sub-section (1) of section 52 97 applies. Explanation.—Failure to display a work or to display it to the satisfaction of the author

94Gunlicks, 2001, pp. 653–654.95Rigamonti, 2006, p. 405.96Indian Copyright Act at: http://copyright.gov.in/CprAct.pdf (Retrieved: 8

June, 2007)97§52 §§(1) clause (aa) reads as:

52. Certain acts not to be infringement of copyright.—The following acts shall not constitute an infringement of copyright, namely:(aa) the making of copies or adaptation of a computer programme by the lawful possessorof a copy of such computer programme, from such copy—(i) in order to utilise the computer programme for the purposes for which it was supplied;or(ii) to make back-up copies purely as a temporary protection against loss, destruction ordamage in order only to utilise the computer programme for the purpose for which it wassupplied;”

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shall not be deemed to be an infringement of the rights conferred bythis section.

2. The right conferred upon an author of a work by sub-section (1), otherthan the right to claim authorship of the work, may be exercised bythe legal representatives of the author.

Accordingly, India’s moral rights regime:

• confers the twin moral rights of attribution and integrity in conformitywith the Berne Convention (see §4.2.1),

• links the term with the term of the economic rights. The moral rightslapse along with the copyright,

• exclude computer programmes under certain conditions,

• allows legal reprsentatives to exercise the right of integrity

4.5.1 Case Law

There have been two notable cases under India’s moral rights regime

4.5.2 Mannu Bhandari Case

The case of Mannu Bhandari Vs. Kala Vikas Pictures Pvt. Ltd. and Anr.98,was amongst the first cases to discuss the author’s moral right of integrity.The appellant, Mannu Bhandari, held that the movie “Samay Ki Dhara”produced under assignment of filming rights of her Hindi novel “Aap KaBunty”, was a mutilation and distortion of her work. The appellant“submitsthat her image would be lowered down before the students, the researchscholars as also in the literary world and the public at large if distorted versionof her novel is allowed to be presented through the film”99. An objectionof the author “is to the name of the film, Samay Ki Dhara. From thecorrespondence between the parties it is prima facie clear that she had agreedto this name in desperation, as the matters were not moving. The titleSamay Ki Dhara is so general as to suggest any social problem that face theIndian society today”100. The author objected to changes in the charactersand theme of the movie101.

98AIR1987Delhi13 or MANU/DE/0319/198699AIR1987Delhi13, at §16

100AIR1987Delhi13, at §19101AIR1987Delhi13, at §20, 21

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Keeping the above in view, the court was holding on the view that ifcertain changes, that did not “distort” the storyline (but were necessary foradaptation to a new medium) were made and the title changed so as to giveattribution to the appellant, then the movie could be screened102. But, asettlement application was moved by which the respondents submitted thatthey103:

1. regret the changes made in the film and will delete the name of theappellant and her novel “Aap Ka Bunty” from the credit (title com-mercial and publicity) of the picture “Samay Ki Dhara”

2. That in the posters and other publicity of the said picture preparedor used hereafter, they will not refer to or mention the name of theappellant or her novel“Aap Ka Bunty” in any manner whatsoever.

The copyright in the novel “Aap Ka Bunty”, reverted to the appellant andthe appellant also relinquished any claims in the movie “Samay Ki Dhara”.

4.5.3 Amar Nath Sehgal Case

The landmark case regarding the moral right of integrity and preventing suchdistortion and mutilation as would be prejudicial to the honour or reputa-tion of the artist is that of Amar Nath Sehgal Vs. Union of India (UOI) andAnr.104. The case related to a “bronze mural sculpture—manifesting itselfhaving 140 ft. span and 40 ft. sweep on . . . the lobby of Vigyan Bhawan”105,that the appellant had created under a commission from the respondent. Thesculpture was “pulled down and consigned to the store room of the Union ofIndia in the year 1979. This act of destruction of the mural was without thepermission, consent or authorization of the plaintiff”106. The plaintiff filedsuit under §57 of the Copyright Act, 1957, “praying for declaration that theplaintiff’s special rights under Section 57 of the Copyright Act, 1957 were vi-olated by the defendants, for which the defendants should tender an apology.A permanent injunction was prayed for to restrain the defendants from fur-ther distorting, mutilating or damaging the plaintiff’s mural. Damages in thesum of Rs.50 lacs towards compensation for humiliation, injury, insult andloss of plaintiff’s reputation were prayed for. Lastly, decree for delivery-up

102AIR1987Delhi13, at §26103AIR1987Delhi13, at §2710417(2005)DLT717 or MANU/DE/0216/200510517(2005)DLT717 , §710617(2005)DLT717 , §8

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directing the defendants to return to the plaintiff the mural for restorationat the cost of defendants was sought”107.

Two issues relating to §57 of the Copyright Act, 1957 were framed108:

2) Whether the plaintiff has rights under Section 57 of the Copy-right Act,1957 in the impugned work although the copyright inthe same has been vested to the defendant?

3) Has the defendant violated the plaintiff’s rights under Section57 of the said Act?

The court held109:

Issues No. 2 and 3 are accordingly decided in favour of the plain-tiff and against the defendants. It is held that the plaintiff hasa cause to maintain an action under Section 57 of the CopyrightAct, 1957 notwithstanding that the copyright in the mural standsvested in the defendants. It is further held that the defendantshave not only violated the plaintiff’s moral right of integrity in themural but have also violated the integrity of the work in relationto the cultural heritage of the nation.

This case has set a precedent for the moral right of integrity under §57 of theCopyright Act, 1957.

10717(2005)DLT717 , §1110817(2005)DLT717 , §1410917(2005)DLT717 , §59

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Chapter 5

Whither Moral Rights?

Rigamonti in Deconstructing Moral Rights does an interesting comparativeanalysis to conclude that the US need not follow the moral rights orthodoxy,saying that “the enactment of statutory moral rights in the spirit of the civillaw approach has done little to increase protection for authors in the UnitedKingdom and has done much to decrease the overall protection for authorsin the United States. Therefore, if the goal was to increase protection forauthors, it was a step in the wrong direction for common law countries tointroduce the civil law concept of moral rights into their legal systems”110.A similar analysis has been done by Gunlicks in A Balance of Interests: TheConcordance of Copyright Law and Moral Rights in the Worldwide Economy ,albiet 5 years earlier, and he reached the opposite conclusion, calling for largerharmonization between US law and moral rights.

Other studies on moral rights include Hansmann’s economic analysis ofmoral rights in Authors’ and Artists’ Moral Rights: A Comparative Legal andEconomic Analysis, Mira Sundara Rajan’s thoughts on how Moral Rights canhelp in democratising culture in the Digital Age111. Vetter talks about theimpact of moral rights on software development, especially on the develop-ment of Free and Open Source Software (FOSS) in The Collaborative Integrityof Open Source Software.

We see that Moral Rights are acquiring importance in the digital age,with countries like UK and US, which did not believe in the moral rightsorthodoxy enacting statutes to give some sort of moral rights protections,either to harmonise their legal systems with the rest of the world or otherwise.

110Rigamonti, 2006, p. 412.111Moral Rights in the Digital Age - New Possibilities for the Democratisation of Culture

http://www.bileta.ac.uk/Document%20Library/1/Moral%20Rights%20in%20the%20Digital%20Age%20-%20New%20Possibilities%20for%20the%20Democratisation%20of%20Culture.pdf

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But, champions of Free Culture and copyright reform may decry the con-cept of moral rights themselves, since the belief is on enrichment of the largerpublic domain and building on what’s available, which moral rights possiblytries to restrict. Moral rights concepts face challenges in the digital age,because it may be difficult not to infringe them, especially the rights of at-tribution and integrity, since digital works are “malleable” and easily altered.But, this could be also one of the reasons why moral rights could be cham-pioned. One of the ways in which some aspects of moral rights play a role isin some software being developed as—”here, take this, use it, modify it, giveit away. But if you change something, don’t call it by the name I called it,or don’t say I wrote all of it”. This is where rights of attribution, integrity,and protection against false attribution all come in.

These are some of the questions that do come to mind regarding thedebate on moral rights:

Questions

1. Perpetual duration for Moral Rights, and using moral rights for thepurpose of preserving culture?

Some jurisdictions grant perpetual moral rights protection (see §4.4.4).According to some studies112, it seems that the perpetual protectionfor moral rights seems to be for “safeguarding . . . the national culturalheritage in the public interest”. If that is the case, then it might not beadvisable to use copyright and the moral rights to that end, but ratherseparately as protection of cultural heritage. This could allow certainuses for the copyrighted work , uses that cannot be envisaged in the“droit moral” regime.

The case of Amar Nath Sehgal Vs. Union of India (UOI) and Anr. (§4.5.3)is interesting because it also used artists moral rights for the purpose ofpreserving cultural heritage. There have been arguments against whythis is not the right approach, e.g. Notes 107—108 at Rigamonti,ibid., pp. 371—372.

2. Use of Trademark Law for certain Moral Rights?

It is interesting to note the use of Trademark law to get the same effectas the “Right to Attribution”. This particular methodology commonin the US and UK, blurs the thin lines amongst the various types ofIntellectual Property Rights Laws, and it is instructive to consider the

112Gunlicks, 2001, p. 654.

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impact of this blurring on other related rights and also the concern of“intellectual property” naysayers. See also §67.

3. Moral Rights in Software?

Though most jurisdictions (including India) limit the applicability ofMoral Rights in software (see §4.4.1), it is interesting to note underwhat circumstances such suspensions occur. If they are only in thecontext of work-for-hire, then what about the world of Free and OpenSource Software (FOSS)?

Vetter in The Collaborative Integrity of Open Source Software, 662-669talks about why moral rights get attenuated in software— “software’sdual character as both an expressive and functional work implies thatmoral rights are less imperative. In the prevalent personality-theorybasis for moral rights, it is the expressive aspect of a work that embodiesthe creator’s personality. The intuition is that if software is primarily oreven substantially functional, there is less need for a right of attributionor integrity . . . software is inherently more malleable than traditionalworks fixated in physical form. Computer programs are designed to bemodified, or easily modifiable. A right of integrity, where the authorcan govern modifications, would be counterproductive to the sequentialand successive processes used to develop software.”113.

He points out how “Even in their attenuated form, moral rights, andspecifically the right of integrity in its classic form, can present problemsfor open-source software licenses”114. He also looks at the moral rightsfrom another angle as being a tool to preserve the integrity of the OpenSource Software licensing agreement.

4. Moral Rights and Free/Open Source Software in India?

Section 57 of the of the Copyright Act, 1957 that talks about moralrights in India makes a notable exception—not allowing moral rightswith regards to computer programs. But, how should the wording beinterpreted?

Does it include all computer programs or only the specific ones towhich “clause (aa) of sub-section (1) of section 52 (See footnote 97 onPage 35)”applies, namely“utilise the computer programme for the pur-poses for which it was supplied”. If it is only to to run the programfor supplied purposes, that runs counter to “Freedom 0: The freedom

113Vetter, 2004, p. 663.114Vetter, 2004, p. 664.

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to run the program for any purpose”115, the basic freedom enshrined inthe “The Free Software Definition”, one of the cornerstones of the FreeAnd Open Source Software movement.

It is an interesting question, anyways . . .

5. Treatment other than Copyright for Software and Digital Media . . .

As we are realising that traditional copyright protections need alot ofconditions and exceptions to be tagged on (for example, attenuatingmoral rights, even in those jurisdictions, whose copyright systems arebased on“authors’ rights”) so as to make them appropriate for software.It may be time to look at some other method for protecting software,possibly even a sui generis method.

Dan Burk points out some of the issues with current software protectionin Copyrightable functions and patentable speech, while Davis et al. talkabout a new frameowrk to protect software in A new view of intellectualproperty and software. This could be the basis for a copyright reformto set up a regime more suitable for the Information Age.

115The Free Software Definition: http://www.gnu.org/philosophy/free-sw.html

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