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Where Does Moral Right Of An Author Of A Work Fit In A Conventionally Free-Market Society?

Objective: This article aims to understand the jurisprudence of moral rights of an author and the legal anomalies which the provision of S/57 of The Copyright Act, 1957 presents.

If on a sale of any article of commerce, (e.g., Paper, hat or shoe) vendor loses all ownership or authority on such goods but then how in case of transfer of dominion of copyrightable work, the purchaser cannot deal with the thing so purchased in any way they chooses? This question is worth asking, because in its answer our basic logic for treating Moral Rights as something sacrilegious to Author's identity is hidden.

It will be appropriate to quote Canada's Supreme Court in Théberge v. Galerie d'Art du Petit Champlain Inc.:

The economic rights are based on a conception of artistic and literary works essentially as articles of commerce ... .Moral rights, by contrast, descend from the civil law tradition. They adopt a more elevated and less dollars and cents view of the relationship between an artist and his or her work. They treat the artist's [art] as an extension of his or her personality, possessing a dignity which is deserving of protection.

They focus on the artist's protect throughout the duration of the economic rights (even where these have been assigned elsewhere) both the integrity of the work and his or her authorship of it (or anonymity, as the author wishes).1

To address the question posed in the article about why, in the transfer of copyright ownership, the buyer cannot exercise unrestricted control over the acquired work. For instance, the owner of copyright cannot describe himself as "co-author" of a work, when he is in fact not the author.2

For moral rights are such collections of rights which acknowledge the author's contribution to his work. Author imbibes his personality and identity in his work, and nobody can own that. An author is nothing but the sum total of his work, hence the law honour's the connection of work and its creator by making certain rights inviolable. We will discuss what these rights are and the provision which contains them in the next section of the article.

In a free-market setup a right inviolable is an anomaly. Capitalistic legal system has been criticised for commodifying even the person of a human3, for example the labour of a human is a commodity which can be transacted. Therefore, when everything can be transacted and alienated (assigned, leased and so forth) moral rights become a black sheep in the world of no sheep.

Analysis of S/57 of The Copyright Act, 1957

57. Author's special rights.
  1. Independently of the authors copyright and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right:
    1. to claim authorship of the work; and
    2.  to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work 2*** if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation:

      Explanation.-- Failure to display a work or to display it to the satisfaction of the author shall not be deemed to be an infringement of the rights conferred by this section.
  2. Can the Author waive his Moral Right?
    The right conferred upon an author of a work by sub-section (1), may be exercised by the legal representatives of the author.

Moral right is of the author and not the owner
The provision starts with words "Independently of authors copyright", which means moral rights are for the author and not the owner of the work and this is also evident from the marginal heading. According to section 2(d) "author" means:
  1. ��, the author of the work;

    Which does not give away much information on how to identify the author within the potential group of copyright holders. However common sense dictates the author is essentially the individual responsible for creating or producing the work, basically who actually authored the work. Section 17 also gives some information as to the identity of the author. It reads;
17. First owner of copyright.
�.the author of a work shall be the first owner of the copyright therein�.

Two conclusions can be drawn, first what the author can transfer is ownership and not authorship of the work. Thus authorship which is a right according to S/57 becomes an inviolable and indivisible right that no one other than an author can possess.

What are the Rights?
From the clause (a) & (b) of subsection (1) we can construe two rights:
  • The right to claim authorship of published or exhibited works (the right of paternity).
  • The right to prevent alteration and other actions that may damage the author's honour or reputation (the right of integrity) and claim damages for such acts.
Damage to the reputation of an author is distinct from infringement.
Subsection (2) is clear that only the author has the right to claim damages or restrain or their legal representative on the instance of their death, the owner (who may so ever be) can not bring action for such reasons.

Is it possible for an author to waive his Moral Right?
Provisions of the The Copyright act are silent on this. If the answer is in affirmative, then how does it differ from an author's economic right, such as ownership which can be sold and bought. The inviolability of the moral right, being deeply personal goes to the core of the very personhood of the author, it ties the creator to the creation. Where everything is a commodity in the market place the author's moral right must take a sacred position in the copyright framework.

The present writer would also add that when an author chooses to remain anonymous, that can be seen to be a waiver of his right nevertheless such an interpretation is erroneous as S/57 does not duty-bound author to claim his moral rights in all instances of its violation. While waiver would be giving away a right, which does not seem possible in the current copyright setup. The difference between waiver and sleeping on rights (by not claiming) may appear subtle, but holds seminal importance.

Can the author himself distort, mutilate or modify his work?
The writer asks this question because in Delhi High Court's verdict in Amar Nath Sehgal v Union of India (2005) 4 the court interpreted the integrity right liberally to include within its fold the protection of India's cultural heritage. What if the author himself wants to modify such an art which has assumed the position of a cultural heritage in the eyes of citizens.

Can the sculptor (artist) of the statue of unity dedicated to Sardar Vallabhbhai Patel be said to have a sole right to destroy such a nationally important heritage? The court did not appear to pursue such a line of questioning. However, justice is nothing but balancing of competing interests, and it would be interesting to observe how the interest of a country's cultural heritage fares when weighed against an author's right to destroy their own art.

  • 2002 SCC 34, [2002] 2 SCR 336 [12]�[14] (Théberge).
  • Moral Rights, (2007) PL Aug 5
  • Bhikhu Parekh in Upendra Baxi (ed.), The Right to be Human 1-22 (1987).
  • Amar Nath Sehgal v. Union of India, 2005 SCC OnLine Del 209

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