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Published : August 30, 2011 | Author : alokllm
Category : Intellectual Property | Total Views : 13031 | Rating :

Alok Kumar yadav Assistant Professor in law at IMS Dehradun

 Author's Moral Rights

When an artist creates, he expresses an opinion. Whether it is in the form of a painting, a photograph, a motion picture or in any written form, that opinion is of the artist, by the artist, and must be protected. In this, who and what entity financed or provided the means for its production should have no bearing and no relevance to the determination of ownership in the opinion produced.

Moral rights are representative of social values concerning authorship, creativity and artistic work. They are based on a belief that artistic creation is something more than an attempt to earn a livelihood.[2] Moral rights flow from the fact that a literary or artistic work reflects the personality of the creator, just as much as the economic rights reflect the author's need to keep body and soul together.[3] The creativity impulse and the work are of value to society, through his work, the artist provides an important service to society. By recognizing these aspects of artistic life, moral rights bring a culture focus to copyright law.[4]

Moral rights or 'droit moral' originated in French law. The Rome Act of 1928 added the droit moral to the Bern convention of 1886.[5]

Definition of moral rights-:
Relating to duty or obligation; pertaining to those intentions and actions of which right and wrong, virtue and vice, are predicated, or to the rules by which such intentions and actions ought to be directed; relating to the practice, manners, or conduct of men as social beings in relation to each other, as respects right and wrong, so far as they are properly subject to rules.

The definition of moral rights is given under many laws. Moral rights are the embodiment of the natural rights of an artist has over what he has created.[6] Moral rights are personal legal rights belonging to the creator of copyright works and not be transferred, assigned or sold. [7]

Moral in other words-"Moral rights are the rights individual creators have in relation to copyright works or films they have created. Moral rights are separate from the economic rights of the copyright owner, such as the rights to reproduce the work or communicate it to the public."[8]

Moral rights apply to:
" Literary works such as most written material and including computer programs
" Artistic works such as photographs, sketches, plans, maps, paintings, three dimensional works from pottery to statuary and buildings, craft work and murals
" Musical works
" Dramatic works such as plays and screenplays
" Cinematograph films both feature films and documentaries, as well as television programs, commercials, and music videos.

Moral rights last for the same period as copyright protection. Generally that is for the lifetime of the author plus 70 years. For films, copyright lasts for 70 years after first publication but the right of integrity expires on the death of the authors.

The author of a film is deemed to be the director, the screen writer, and the producer. If the producer is a company and there is no individual producer, the producer has no moral rights.

Kinds of Moral Rights:-

Moral rights are continental European concept. According to this concept there are mainly three rights:-
1. Droit the Divulgation (Right to Publication) this is the first moral right of an author. The right gives author the right to decide whether he is going to publish or not to publish his artistic or literary work.
2. Droit a law Paternity (The right to Paternity):- this right gives author the right of authorship of his artistic or literary work. Author can also prevent others from using his name in their works.
3. Droit Respect de l' oeuvre (The right of integrity):- it gives the author the right to prevent alternation, mutilation or distortion and other action that may damage the author's honour or reputation. This right arises in the case of assignment and after assignment when any one creates such type of distortion or mutilation which is against author's reputation or honour.

Moral Right in Different Laws
Being a member of Bern, WTO a country aromatically becomes the member of TRIPs Agreement. TRIPs Agreement does not compel the member's country to protect moral rights of the author as it has been given under Bern Convention.

The Bern Convention for the protection of literary and Artistic works talks about author's moral rights. It provides that "the right of paternity and the right of integrity are available to the author in his work.[9]
Moral rights have always been controversial in committed states. They raised a host of difficult philosophical and implementation questions. The most obvious among them is the issue of the interference of moral rights with the free editing and publication.[10]

Before 1990 the protection of moral rights was not available in U.S. American copyright does not recognize moral rights to author. But in 1990 moral rights were protected under visual Artistic Rights Act, 1990 (VARA)

Indian Position on moral Rights:-
In Indian copyright Act, 1957, the provision related to moral rights has been given. Indian copyright does not directly provides moral rights to the author but it provides special right to author, that are moral rights.[11] These rights are independent and parallel of the author's economic rights. This provision is based on Article 6 bis of Bern Convention.

The language of section 57 is of wide aptitude and includes not just literary works but also visual and audio manifestations. The moral rights are as follows:-
1. Paternity right (right to claim authorship of the work)
2. The integrity right (the right to protect his honour and reputation)
3. A general right (not to have a work falsely attributed to him)

The commissioner's right of privacy in respect of photograph or film made fir private and domestic purpose.

Under section 57 of Indian copyright, on author has the right to claim the authorship of the work. He has also right to for restraining the infringement or to claim damages under section55. The special protection of the copyright can be claimed even after the assignment of the copyright.

The court has taken view in the case of Mannu Bhandari vs. Kala Vikas Pictures Ltd.[12] and in Willey Eastern Ltd vs. Indian institutes of management.[13]

In Manu Bhandari case,[14] the dispute related to author's moral right came before the court. In this case the plaintiff, Mannu Bhandare is author of Hindi novel 'Aap ka Bunty' she assigned her some rights in raised objection about the title of the film which was resolved by the parties and the end of the film. In the end of the novel the child was admitted in hostel by his natural father while in the film it was showed that the child died of starvation, the author said that it was against her integrity and honour. It was held that the contract of assignment has to be read subject to the provisions of section 5. It held that the remedy of a restraint order or damages can be claimed even after the assignment either wholly or partially of the said damages further it was held that the section57. Clearly overrides the terms of the contract of assignment of the copyright.

Section 57(I) (c) prohibits any mutilation or distortion of the authors work. Section 27 provides the bundle of rights, which are in tune with the international agreements and the treaties.
In the case K.P.M.Sundaram Vs. Rattan Prakashan Mandir[15], the plaintiff had instituted the suit against the defendant's for injunction restraining them from prompting, publishing and the specified books, rendition and accounts for the illegal gains made by the defendants for all unauthorized publications and for damages under the provisions of section 5 and 57. The plaintiff had granted sole and exclusive right to print, publish and exclusive right to print, publish and sell the work. In last clause it was further sole and exclusive right to print, publish and sell the work. Prima facie it was held that it did not assignee the copyright but created a revocable license in favour of defendants to publish and sell the works and the balance of favour to show the same. The defendant was restrained from printing. Publishing and selling the plaintiff till the disposal of suit.

Infringement of Moral Rights:-
Rights, or authorizes another to so such type of mistreats. The Courts have discretion it choose remedies for that infringement and also can prescribe damages, ordering public apology and reversal of a mistreatment of a work, film or performance.

In Australian copyright, if a creator makes a claim for infringement of moral rights, the remedies a Court can grant include[16] -
Financial compensation (damages)
An order to prevent or stop a particular activity (an injunction),
An order that any false attribution of authorship, or derogatory treatment of the work, be reversed or removed.

In third way there are a number of factors which the court can take into consideration at the time of deciding the appropriate remedy, such as anything done by the defendant to reduce the effects of infringement. If contemplating the granting of an injunction, a Court must first look at ways to give the parties an opportunity to negotiate a settlement.

Visual Artiste Rights (VARA) grants two rights to authors of visual works. The right of attribution and the right of integrity. The right of attribution provides author for preventing misattribution of a work, and to require that the authorship of the work not be disclosed. Author can take an action for defamation if the authors' help of a work is attributed to an author against his/her will, or misattributed.
Amarnath Sehgal vs. Union of Indian & Another[17] the court provided remedy for infringement of his special rights or moral rights.

The plaintiff created a bronze mural for display at Vigyan Bhawan, New Delhi After extensive preparation and research, plaintiff's untiring and stressful concentrated hard work, spanning over a period of five years, eventually produced an acclaimed piece of artistic work manifesting itself in the form of a 14 feet long and 40 feet high mural, demonstrating a delectate balance between cultural and material aspects in national perspective essence of rural and modern India being its them. The mural so created found its rightful place in Vigyan Bhawan lobby right at its entrance, in the year 1962 and in due course of time acquired the reputation of being one of the important historical murals representing essential part of India's best art heritage. The plaintiff sought the following relief in the nature of:

A decree for declaration that the defendant has violated the plaintiff's special rights under section 57 of the copyright Act, 1957 and the defendant is liable to be directed to tender an apology,
A decree for permanent injunction restraining the defendant from, further distortion, mutilation or damage the plaintiff's mural;
A decree for damages of Rs. 50, 00,000 the compensate the plaintiff for the loss, injury, insult and humiliation caused by the defendant to the plaintiff's reputation and honour and
A decree for delivery-up directing the plaintiff to return the plaintiff's mural to the defendant for restoration at the defendant's cost and or return to the same to the plaintiff.

It was held by the court that copy right is a bundle of rights, which the author can exploit, independently for economic benefit any exercising these rights. A copyright owner may exploit his work himself or license others to exploit any one or more of the rights for a consideration, which may be in the form of royalty or a lump sum. Payment copyright apart, the author of a work has certain moral rights as well.


Describing the aspects of moral rights protect the interest of author in maintain their standing and reputation. In India, the statues and the ruling of the courts indicate only integrity right and paternity rights as moral rights as far as India alone is concerned, though the legislation in this regard has been limited in the India statute on copyright but the courts are favouring a wider interpretation of these rights. ______________________________________
[1] LL.M. IIIrd Sem. Dr. Ram Manohar Lohiya National Law University, Lucknow
[2] Anurag k.Agrawal & S.S.Sagar Priyathan, Moral Rights in Copyright Law
[3] Stephen M.Stewart, International Copyright & Neighbouring Rights (1983), P.59
[4] Supra note,2
[5] Supra note,3
[6] http://www.lowyzucker.com/page2/copyr.htm (accessed on 15-10-07)
[9] Art.6 bis Bern Convention 1886
[10] Supra note,2
[11] Section57 Indian Copyright Act, 1957
[12] AIR.1987 Del 13
[13](1995) 58D.L.T.449
[14] Supra note,12
[15] AIR.1983 Del. 461
[16] Supra note, 7
[17] 2000 DLT 439

Authors contact info - articles The  author can be reached at: alokllm@legalserviceindia.com

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