The general notion, I’m sure is that copyright is a bundle of rights which is primarily an economic right (unless you are Gandhi, who resisted to enforce the copyright in his work for economic gain as economic rights) more than it being an indicator of the source of origin of the goods as in the case of trademarks. So what happens after you have assigned, either wholly or partially, the copyright in your work to someone else? Does that mean you have lost all your rights in the work that you have created or still have some form of ownership in it?

Well, if you are an artist who has created some work or the other, you will know of the moral rights that subsists in the work is independent of the economic rights that you have. For those of you who aren’t aware of the concept of moral rights, it is when even after the ownership in a work has been transferred or assigned, you have right to claim authorship of the work, and to retaining the work’s integrity. Before explaining the different rights that the author still has, let’s first take a look at the relevant provision of the law and what the Courts have held in this matter.

Moral rights and copyright as per the law:

Moral rights finds expression in Section 57 of the Copyright Act, 1957 (in accordance with Article 6bis of the Berne Convention). Initially, this section was applicable only to literary works, thus leaving authors of other works in an empty hole. However, after a judgment in 1987, the Court widened the scope of Section 57 to include authors of other works as well. Now, moral rights apply to literary, artistic, musical, dramatic and cinematograph films.

Special rights – rights to paternity and integrity

Section 57 lays down the author’s special right which includes what is commonly called as the right to paternity and the right to integrity. The right to paternity is essentially the right of an author to claim authorship of his work and have it attributed to him, while the right to integrity allows an author to restrain or claim damages in respect of any distortion, mutilation, modification or other act done to his work which (i) would prejudice honour or reputation and (ii) is done before the expiration of the term of copyright in the work.

Exception in the form of explanation is stated in Section 57 which states that 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. Also, when it comes to software, the authors of computer programmes cannot restrain those who lawfully possess a copy of their programmes from making backup copies as temporary protection against loss or from adapting the programmes to use them for the purpose for which they are supplied, or claim damages from lawful possessors for these acts.

Can moral rights be transferred or waived?

No, moral rights cannot be transferred but can the author relinquish his/her rights in the work under Section 21 of the Copyright Act? Since the Statute is silent and very few cases deal with this, this question is debatable. It is not legally possible to waiver moral rights nor is it possible to include a clause in the agreement stating that the publisher will not sue or take any action against the author (as it will be hit by certain sections of the Indian Contract Act). The best bet would be to draft an agreement with a decent severability clause.

Moral rights? Yae, says the Courts

In a landmark judgement on moral rights a few years ago, the Court took into consideration not only the national framework for protection of moral rights, but also the international framework in this regard. In that dispute, a sculptor who had sculpted a sculpture for the Indian Government filed an action against the Government for having “mutilated” the sculpture he made by removing it from the heritage and storing it in a store room. The Court held that the sculpture ought to have returned to the sculptor and also directed the Government to pay compensation to him.

Though moral rights in India has a wide meaning attached to it, it hasn’t been defined to include certain rights like the right to publicity or the right against false attribution like in the UK. Though right to publicity would fall under the laws of defamation, it hasn’t been included as a moral right for Indian authors. Nevertheless, the authors should be aware of whatever their moral rights might be in an era where piracy is at its peak.

This article has been authored by Durga Bhatt, an IP Law practitioner.