Moral rights of actors

8/10/2019 Moral rights of actors

1/4

Conferring 'Moral Rights' on Actors: Copyright Act and Manisha Koirala CaseAuthor(s): Vinay Ganesh SitapatiSource: Economic and Political Weekly, Vol. 38, No. 14 (Apr. 5-11, 2003), pp. 1359-1361Published by: Economic and Political WeeklyStable URL: http://www.jstor.org/stable/4413397.

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2/4

evident

from a few

samples

of

commen-

taries

by

editors

and

columnists,

and

analytical

articles

by

defence

experts,

that

appeared

n the New Delhi-based

English

newspapers

during

the

war.

Even before the

US

troops

marched

into

Iraq,

the editor of

a

leading

Indian news-

paper

sought

to

jump

the

queue

of

Washington's sycophants,

by outlining

a

programme

s

to how the

Vajpayee

govern-

ment should behave

towards the US. He

echoed Bush

by approvingly pointing

out

the

"increasing

irrelevance

of the

UN".

Following

this,

he

advised

New Delhi

not

to

be

"pushedby entirely ignorant

and non-

serious

politicians,

and a

public opinion

determined

by touching

emotion rather

thancold reason"

(a

reference to the world-

wide anti-war

demonstrations?).

He

there-

fore warned our

government against

com-

mitting

itself "to

a

process

of

strengthen-

ing

the

UN" as that would introduce

"new

stresses on our relations with the US",

particularly

now

when

"our clever

new

positioning,

as

a

friend of

Washington,

has

come

very handy." ShekharGupta,

Indian

Express,

March

15,

2003).

A

week

later,

the

same

editor,

afterhemming

and

hawing

through

two-thirds of his column and scof-

fing

at calls

for

boycotting

American

goods,

finally

let

the

cat out of the

bag

-

"...the

larger point

is not

whether Bush

is

right

or

wrong,

but how well

we

serve ourselves...."

In

his

view,

we should not confuse "emo-

tional and

moral

outrage

with

global

re-

alities and national interest," and should

instead "mould our

responses

to these

realities."

(Indian

Express,

March

22).

This is

the

typical

ethos

of the new breed

of editors

and commentators

in

the na-

tional media.

They

are all

too keen to

'mould

their

responses'

to

the

US-led neo-

liberal

global

order

by

adhering

o

the 'me-

first-devil-take-the-hindmost'

principle,

and extend it to their

interpretation

of

national and

international

politics.

Con-

cepts

like

'right'

or

'wrong',

or

feelings

like 'moral

outrage'

are now

passe

Anti-

war

demonstrations are trivialised in

their

columns as

antiquated

oddities

indulged

in

by

a

bunch

of

eccentrics.

They

dismiss

ideological

beliefs

(in

human-

itarian

values)

or

ethical norms

(like

honesty

or

non-violence)

in favour

of

whatever

opportunities

(irrespective

of

their moral

implications)

that come their

way.

So,

Shekhar

Gupta

does

not care

two hoots for the

Iraqi

victims

of

US

bombing,

as

long

as

the

Indian

government

can

figure

out a

"strategy

to

profit

from

this"

(March 15).

Some

among

these Indian

commentators,

who are known to have a crush on the US

proponents

of

neo-liberalisation,

pretend

to

be neutral on the

Iraq

issue and take on

a

cynical posture.

A

typical example

is a

column

called

'Swaminomics',

authored

by

a

well

known

journalist,

carried

by

the

Times

of

India

on March

23.

According

to

him,

"victorychanges

everything".

In

other

words,

if

the

US

wins the war

-

which

it

hopes

to

-

all the

present uproar by

the

peace-nicks

will

evaporate,

and

people

will come to

accept

the

reality.

It

may

happen.

I

have

no

dispute

with him on

that.

But what

surprised

me

was that while

labouring

his

point,

he came

out

with an

astounding

piece

of information. Accord-

ing

to

him,

after the US

signed

a

peace

agreement

with

North

Vietnam,

the

latter

"violated the

peace agreement,

invaded

and took over South Vietnam".

Quite

a

striking

tribute

to the

strength

of

a false

mythology

-

and that

also

coming

from

someone who claims to be an

expert

in

international

politics

But

while we

at the moment can

afford

to

laugh

at

Bush's

speeches,

or at editors

who combine scant

knowledge

with ex-

cessive

gullibility,

the

American

people

are

being

reduced

by

their

president

to

a

besieged

nation,

to remain

perpetually

doomed

under the threat of terrorist

attacks. Even if

Saddam

is

'decapitated'

(the

term

used

by

Bush),

he

may

have

the

last

laugh, leaving

behind a

legacy

of

vengeance

against

the

US,

which

may

not remain confined

only

to his Arabcom-

patriots,

but

spread

far and

wide

-

from

the

poor people

of the third

world who are

victims of

Washington's global

economic

policies

on

the one

hand,

to the

govern-

ments

of the

developed

nations who feel

threatened

by

Washington's political

hegemony

over them

on the other.

[1

onferring Mora l Rights

o

Actors

Copyright

Act and

ManishaKoiralaCase

The

Manisha

Koirala

case has served to

highlight

the

absence of protectiontofilm actors in the IndianCopyrightAct.

Indian

ilm

stars have a

global fan-following

which translates

into

considerable commercialvalue. It

is

important

hat their

on-screen

image

be

protected.

Such

legal protection

can be

afforded

by conferring

'moral

rights'

-

the

right

to

be

acknowledged

as the creator

of

a work and the

right

to

prevent

distortion/mutilation

f

one's work.

VINAY

GANESH

SITAPATI

T

he

Manisha

Koirala ase

(Manisha

Koirala

vs Shashilal

Nair,

2003

(I)

AIIMR

426),

so full of

juristic pos-

sibilities,

ended

with

a

whimper

rather

than

the

expected

bang. Though

the

pub-

licity

for the case was

connected to

its

sensation

value

(which

contributed in no

small measure to the film's

subsequent

box

office

success),

the

case itself

was

emblematic of a

serious lacuna n the Indian

Copyright

law that

needs to be

addressed.

Manisha

Koirala,

a

well known

actress

from the

Bombay

film

industry,

approached

the

Bombay

High

Court

praying

for

an

injunction against

the release of the film

'Ek

Chhoti Si Love

Story'

in

which she

was

the heroine. Koirala's contention was

that

the unauthorised

use

by

the director

of a

body

double

resembling

her to

play

sexually explicit

scenes violated her

legal

rights.

Such

unauthorised use

presents

a

Gordian knot

requiring judicial,

and

leg-

islative

untangling.

The court

agreed

that

there

existed

a

prima

facie case of

defa-

mation and

granted

a

temporary

in-

junction

pending

the

hearing

of the suit. 1

The court was

to hear the substantive

arguments

on both sides.

But

by

resorting

to extra

judicial

adjudication,

Koirala

provoked

the court

into

declining

to

pronounce

on the

matter. The suit was

dismissed.

Economic and Political

Weekly April

5,

2003

1359

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3/4

It

was

a lost

opportunity

because an

examination of

the

protection

that Indian

law accords to

actors

in films

remained

unexplored.

Koirala

had

very

few

legal

remedies available under

existing

Indian

law tocombatthe

blatantly nequitable

and

unjust

use of a

body

double.

Indian

law

does not

protect

the

commercial

image

of

an actor or her

creative

input.

Koirala

was

not

prevent

all

forms

of

distortion

to an

on-screen character.

Keeping

in mind

this

background,

this

article

argues

that

the

Indian

Copyright

Act,

1957

[henceforth

Copyright

Act]

be

amended

to confer

'moral

rights'

on

actors

in

films.

An

actor's

onscreen

image

is

protected

both

in

the UK as

well

as the

US. The

UK

already

has

statutory provisions

akin

to

those

being

sought

in

this article. The

UK

therefore

accords 'moral

rights'

to

actors.

Whilst

the US does

not have similar

statu-

tory provisions,

the

judiciary

has

evolved

theequitableremedy of 'righttopublicity'

that

protects

the

image

of an actor.

India

has neither.

According

'moral

rights'

to

actors will fill this

lacuna.

Post-WTO,

a

number

of

intellectual

property right

[henceforth

IPR]

issues

including

patents

have

been

reviewed. Such review

seeks to

ensure

uniformity

amongst

IPR

laws in

global

markets to

better

protect

the

com-

mercial value of

the intellectual

property.

In

a bid to be

compliant

a

committee has

been

appointed by

India

to

recommend

changes

to

the

Copyright

Act. This

article

urges hat hisopportunitybeused to amend

the

Copyright

Act

by

conferring

'moral

rights'

on actors.

Such a

need

to

amend

copyright

law is

being

articulated not

only

in

India,

but

also

in

several

global

fora.2

Copyright

and

'Moral

Rights'

A

copyright

is a

largely

negative

right

that,

simply put, prevents

the

copying

of

the

material form

of

another's

intellectual

expression.

For

example,

whilst the

idea

portrayed

in

a

film

(boy

meets

girl;

they

get

marriedamidst

parental opposition)

is

an

idea

that

s not

protected,

its

expression

in

material

form,

namely,

the film

itself

is

protected

as

a

copyright.

The

Copyright

Act

is

the sole

residuary

of all

copyright

provisions

under

Indian law. The

Copy-

right

Act

grants

certain

rights

to all

'works'

under

the

relevant

section

(S2(y)).

These

rights

are

known

as

copyright

and

consist

largely

of

economic

rights

such

as the

right

to

reproduce

and to

prevent

unauthorised

reproductions

(mentioned

in

S14).

Such

rights

can be

transferred

for example

such

rights

in a film

can

be

sold

by

the

pro-

ducer).

The

Copyright

Act also

provides

forcertain

'performers'

ights'

(S38).

These

rights

are

also economic

rights,

but

they

pertain

to

performers

whereas

copyright

pertains

only

to 'works'.

A

unique

feature of

copyrights

world-

wide is

the

provision

for

'moral

rights',

which are

inalienable

and

always

remain

with the

creator

of

the

work,

legally

known

as

the

'author'. 'Moral

rights'

are

broadly

divided into

the

right

to

integrity

and the

right

to

paternity.3

The

right

to

integrity

is

the

right

to

prevent

mutilation/distortion

of an

author's

work and

the

right

to

pa-

ternity

is the

right

to be

acknowledged

as

the

author

of the work.These

rights

cannot

be

transferred.

For

example,

the artist

Amar

Nath

Sehgal

could

prevent

mutilation of

his

painting

even after

selling

the same to

the

government.

(Amar

Nath

Sehgal

vs

Union of

India,

MANU/DE/0327/2002).

'Moral rights' have been defined in the

Berne

Convention to which

India

is a

signatory

(Article

6bis

of

the

Berne Con-

vention for

Protection of

Literary

and

Artistic

Works

(Paris

Revision,

1971)).

It

has

accordingly

been

incorporated

into

Indian

law in the

form of

S57 of the

Copyright

Act,

which

confers these

rights

on authors.

As of

today,

the

Copyright

Act does not

confer

any

rights

on actors in

films. There

are

only

three

conceivable

ways

in

which

rights

can

be

granted

by

the

Copyright

Act.

(i) If acting in a film qualifies as a 'work'

(as

defined

in

S2(y))

of

the

Copyright

Act,

it would be

entitled

to

a

copyright (by

virtue of

S13(1)).

However,

a

division

bench of the

Bombay

High

Court has held

in

Fortune Films

v

Dev Anand

that

acting

in

a

cinematograph

ilm does

not fall under

any

of

the

enumerated

ypes

of

'works'

and

is therefore not entitled

to a

separate

copyright

(AIR

1979 Bom

17).

(ii)

An

acor as a

performer might

be

entitled to

certain

rights

S38

of

the

Copy-

right

Act

even

grants

certain

'performer's

rights'

to

'performers'.

However

actors

in

cinematograph

films cannot

avail of the

same

unlike

musicians,

dancers

and the-

atre

actors. This is because

S38(4)

ex-

pressly

bars

actors

who

have

'consented

to their

performance'

in

films from

being

accorded

any rights

as

performers.

(iii)

The

Copyright

Act confers

special

rights

or

'moral

rights'

on

'authors'

(S57).

If an actor

can

be

termed

an

'author',

he

would be

entitled to certain

'special

rights'

popularly

known

as 'moral

rights'.

How-

ever,

actors are not

listed

in

the definition

of

'authors'

(defined

in

S2(d)).

It is

thus

clear

that

the

framers

of the act did not

confer

'authorship'

on

actors.

Further,

ndia

intends to

be

a

signatory

to

the

WIPO

Performances

and

Phonograms

Treaty

(henceforth

WPPT)

as can be

evidenced

from

the committee set

up by

the

govern-

ment to

change

Indian laws

in

this

regard.

However,

the

WPPT

has

expressly

denied

'moral

rights'

to

audio-visual

performers

such

as

actors,4

partly

due to

India's in-

sistence

during negotiations,

leading

sev-

eral

commentators

to

opine

that this

was

due

to the

powerful

producer's

lobby

in

both

Hollywood

as well as

Bollywood

which seeks

to

deny

actors

any rights.5

It

is thus clear that

even

today,

the

legislature

is

against

conferring

'authorshiprights'

to

actors.

Thus actors can

neither avail of

copy-

right,

nor author's

special rights

(moral

rights),

nor indeed

performer's

rights.

It

is thusamply clearthatactors areconferred

no

rights by

virtue

of

the

Copyright

Act,

and

that the

position

of Indian law

in

this

regard

is

unambiguously explicit.

Conferring

an

entire

'copyright'

or

'performer's rights'

to

actors

is

impracti-

cal. The

copyright

in the film vests

in

the

producer.

'Copyright'

and

'performers

rights'

being

essentially

economic,

accord-

ing

these

rights

to

actors would create an

overlapping

of

rights

and a

conceptual

as

well

as

practical

aberration. However

conferring

'moral

rights'

to

actors

would

merely give them basic rights (the rightof

paternity

and

integrity)

and would not in

any

way

inhibit the

economic

rights

vested

in the

producer.

Need to

Accord

Actors

with

'Moral

Rights'

As stated

above,

actors are not

accorded

any rights

under

the

Copyright

Act.

But

such a

position

clearly

conflicts

with

the

Centre

for

Culture and

Development,

Vadodara,

invites

applications

from

researchers

with Ph.D

in

social

sciences

as research

associates,

on tenure

basis.

Applications

should reachthe

director, CCD,

XTI

campus,

SevasiPost,Vadodara391

101,

latest

by April

end.

1360

Economic and Political

Weekly April

5,

2003



4/4

founding rationale,

or to

use

ajurispruden-

tial

expression,

the

grund

norm

behind

copyright

law -

namely,

protection

of

creativity.6

In

addition,

with enormous

commercial

value

being

attached to

actors,

and such

value

being

a

creation

of

the

actor's on-screen

image,

the

principle

of

equity

demands

especially

in the absence

of other

protective

laws,7

the

conferring

of

copyright

to

actors.

There are

two broad reasons

why

actors

must be

accorded

'moral

rights'.

The

first

is embedded

in

the

very

rationale behind

copyright

tself: to

protect

the

creativity

of

individuals and to

provide

economic

in-

centive

for further

such

creativity.8

It

is

obvious that

actors are

creators

-

never

mind what

passes

for

'acting'

in most

mainstream

Bollywood

films

- who cre-

atively

contribute

to

the

development

of

their characters.

It is

only

reasonable

to

expect

that as

creative

components

within

a film, they must be accorded separate

rights.

In

fact,

S

13(4)

of

the

Copyright

Act

recognises

such a

possibility

by

envisag-

ing

an

independent copyrightable

exist-

ence in

"any

work in

respect

of which...the

film...is

made". The

Supreme

Court has

reiterated

this

conceptual

possibility

in

Indian

Performing

Rights

Society

vs East-

ern India

Motion Pictures Association.

(AIR

1977

SC

1443).

But while

accepting

that a

copyright

can be vested

in

creative

components

of films.

The

Copyright

Act

curiously

denies actors such

rights.

En-

glish common law on the other hand

expressly

grants copyright

to

acting

in

cinematograph

ilms.

In

the celebrated

case

of

Norowzian

vs

Arks

(1998

FSR

394)

the

English

courts

recognised

that

acting

in an

advertisement

ilm

is a dramatic

work

that

is

capable

of

an

independent

copyrightable

existence.

The second reason

for

according

copy-

right

to actors

is one of need.

It

would be

stating

the

obvious to

point

out

that

the

legislature

and

in its

absence

the

judiciary

must

evolve

law

to deal with

contemporary

issues in

society.

For

example,

in

accom-

modating

the need to confer

authorship

on

computer

programmers

an

unknown

spe-

cies when

the

US

Copyright

Act was

framed)

he US courts n

Apple

Computers

vs Franklin

Computer

Corp

(714

F 2d

1240

(3d/Circ

1983)

reinterpreted

he definition

of

'literary

work' and

read

the literal

computer

code

into

the definition.

In

doing

so,

copyright

was

conferred on

computer

programmers.

Today,

actorsearncolossal amounts

rom

appearances

in

films. Such commercial

value

to their

image

is as coloured

by

their

on-screen

depictions

(the

perpetually

he-

roic

MGR

being

a

case

in

point)

as

it

is

by

their off-screen

exploits.

The

principle

of

equity

demand,

that such a commer-

cially

viable

on-screen

image

be

protected.

Conferring

'moral

rights'

on actors will

ensure

that there is no 'distortion mutila-

tion,

modification' to their

on-screen

image

which

is

prejudicial

to

the

actors'

'honour

or

reputation'

(S57(b)).

Further,

no

other law

in

India accords

protection

to the

image

of

an

actor. The

'right

to

publicity'

is

not

a

copyright,

but

a US

case law evolved

equitable remedy.

Evolved as an extension

of the

right

to

privacy

in Haelan

Lab,

Inc

vs

Topps

Chewing

Gum,

Inc,

202F.2d

866

at

868,

(2d Cir),

cert

denied,

346

US816

(1953)

the

right

also

protects

the 'unauthorised

commercial

use of a

public figure's

im-

age.9

Had the Manisha Koirala case arisen

in America, undoubtedly she would have

made use of

the

right

to

publicity

doctrine

and

the

case

would have

been

decided

in

her favour.

Unfortunately,

the

right

to

publicity

has not been

recognised

in

com-

mon

law,

nor indeed

in Indian law. The

R R

Gopal

case

(MANU/SC/0056/1995)

and

the

Phoolan Devi

case

(MANU/DE/

0486/1994)

both of

which

extensively

deal

with

the

right

to

privacy

do not

even

in

passing

extend it to

a

public figure's

image.

It is

of course

possible

for

Indian

courts

to

recognise

the

right

to

publicity

and thus accord actors with rights. But

such

a

case

law evolved

remedy

is

a

substantial

change

in

law and

should

not

be introduced

by

the

judiciary,

without

enactment.

Further,

apart

rom

possessing

a

commercially

viable

image,

an

actor

is

a creator.

As

a

creator,

s/he is

entitled

to

copyright.

Had such

a

provision

existed in Indian

law,

it would have

given

Manisha Koirala

clear

protection.

Due

to the

lack of other

remedies,

Manisha

Koirala

was

forced

to

argue

that she had been defamed

by

the

use

of a

body

double

in

certain

objection-

able scenes.

Defamation

requires

injury

to

one's

'personal reputation'.

But

Manisha

Koirala was

far

more

worried at the

pos-

sible

injury

to

her

'public

image',

an

image

that

is hitherto

unprotected

in Indian

law.

It

is

unfortunate that

irked

by

her resort

to

extrajudicial authority

n

the form

of

Bal

Thackeray

and the

I and B

ministry,

the

court refused to

grant

an

injunction

and

misses

an

opportunity

to

point

out the

inadequate

protection

Indian law

accords

to an actor's

image.

Trends

in international

opinion

favour

the

conferring

of 'moral

rights'

on

actors.

Apart

from the

explicit

common

law rec-

ognition

of the

same,

the

WPPT

treaty

and

associated conventions

are orawheresuch

a need has been articulated on

several

occasions.

It is unfortunate thatthe WPPT

has not conferred 'moral

rights'

on actors.

It is indeed even more unfortunate that

opposition

from

India in tandem with the

US are

the

principal

reasons for

this situ-

ation. In

an

age

where an

'image'

is worth

crores

and

creativity

is

protected

through

a

plethora

of

laws;

deserving

creators

like

actors

must

be

protected.

It

is

thus

urged

that S57 of the

Copyright

Act be

amended

and

actors be conferred 'moral

rights'.

It

is believed that the

government

is indeed

contemplating

such

a

proposal.

If

this

actually happens,

film stars and their fans

have reason to cheer.

[C

Notes

[This

article s

adapted

rom the

topic

for the

2003

D M Harish

All

India Moot Court

Competition

held under

the

auspices

of Government Law

College,

Mumbai

Part of the research

has been

done

by

the

NLSIU

team for the

same,

and

s

duly

acknowledged.

The writer was a

member

of the

award

winning

NLSIU

team.]

1 A

temporary

njunction

is

granted

whilst

the

suit

is

being

heard.It is

however,

subject

to the

final

decision

of the court.

2

During

the

negotiations

for

the

WIPO

Performancesand

Phonograms

Treaty,

such

a

need was articulated but was withdrawn

following

much

protest.

See also Adler

Bernard,

"the

Proposed

New

WIPO

Treaty

or Increased

Protection

for

Audiovisual Performers: Its

Provisions andIts Domestic and International

Implications",

12

Fordhaml

ltell

Prop

Media

and

Ent

L

J,

1089

(2002).

3

The

English Copyright

Act

has

expanded

the

scope

of moral

rights

to include

for

example

the

right against

false

attribution

of creation.

But

IndianLaw

does

not

recognise

such

rights.

4

www.wipo.org/pressroom/en/releases/2002/p

302.htm.

5

Fiona Macmillan 'The

Cruel C:

Copyright

and

Film',

2002

Eur 1 P

R.

p

21.

6 Laddie,PrescottandVictoria,TheModernLaw

of

Copyright

and

Designs

671

(2000).

7 The

right

to

publicity,

so well

evolved in

US

law,

is

unrecognised

n Indian aw. The law of

defamation

protectsonly

'personal

reputation'.

As

such,

no law in India

protects

the

public

image

of actors.

8

Laddie,

Prescott and

Victoria,

op

cit.

9 Vanna

White

v

Samsung,

971 F

2d

1395,

at

1398-99

(1992);

Zachini vs

Scripps-Howard

Broadcasting

Co,

433 US

562,

at 569

(1977).

See also Kirsten

Anker,

'Possessing

Star

Qualities:

Celebrity Identity

as

Property',

11

Griffith LR 147

(2002).

Economic

and Political

Weekly April

5,

2003

1361


Moral rights of actors

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