Evolution of Moral Rights in India: Revisiting Amarnath Sehgal v. Union of India and Anr
“In a country rightly proud of its creativity and ingenuity, men who can hardly distinguish the heads of Venus from those of Mars cannot be allowed to decide the fate of artists who create our history and heritage.”– Justice Jaspal Singh
Amarnath Sehgal v. Union of India and Anrwas the first case involving the issue of moral rights in India. The case was first filed on 29thMay, 1992 before Jaspal Singh, J. wherein an interim injunction was awarded in favour of the petitioner. The case was then prolonged for 13 years before a single bench judgement by Pradeep Nandrajog J. conclusively disposed the matter on 21stFebruary, 2005. The case is regarded among the legal luminaries for the fact that it laid down the foundation stone of the jurisprudence of moral rights in India. The case was filed at a time when there was no real clarity on the ambit and scope of moral rights, that is to say, no precedents. The Delhi High Court, thus, exercised its discretion and broaden the ambit of moral rights existing under Section 57 of the Indian Copyright Act 1957, thereby setting a landmark precedent. Although the Indian copyright jurisprudence has evolved manifold since the Amarnath Sehgal case, however the ratio and dicta laid therein can never elapse. It is in this backdrop that the authors wish to revive the ratio behind moral rights in India, and leave it open for the readers to question the existing paradigm of moral rights prevalent in India.
# The present case is a reflection of the conundrum of cultural dilemmas surrounding modern India in the 21stcentury.These lines reconcile a creative artist’s“creativity and ingenuity” with that of India’s cultural heritage thereby recognizing the need to protect both. The historical development of natural rights can be traced back to morality.Lack of copyright protection has long been held to permit others to use the name of creative artists’ in copying, publishing or compiling their works. This case is regarding reinstatement of the soul of a mural and copyrights present in every creative artists’ work which have been overshadowed by the big economic picture of trademarks and patents. The present case fully justifies John Locke’s property theory of unilateral appropriation which states that ‘there is something individuals can do on their own to establish rights over natural resources that others have a moral duty to respect.’
# The concept of moral rights first emerged in a French precedent during the 19thcentury, a period when the rights of creative artists were greatly influenced by the personality doctrines.The basis of moral rights is to safeguard the interest of creative artists’ beyond mere economic and pecuniary interest of the society and creative artists’ themselves respectively. Thus, it is one of the aspects of these rights to help secure the artistic and natural interest of creative artists. As far as the utilitarian theory of jurisprudence is concerned, copyright was, more often than not, dealt with some ‘degree of bungling reluctance’. However, gradually the copyright theories have evolved over time.
# Copyright does not contain only one right but it is packed solidified version of all the rights, within which the moral rights of a creative artist are protected against the whole. Within the vast community of intellectual property rights, the main verse on the moral rights development is narration of copyright because since ages every invention has been recognised through its inventor and with the change in the socio-political structure which led to the change from laissez-faire to welfare state had seen a great involvement for securing the rights of the creative artist. A welfare state sees the protection and recognition of an individual intellectual labour. Copyright protection is the nexus of the individual interest as well as economic interest.
# As the world is on the circuit with the main objective of employing a standardised copyright norm, it has deviated the whole issue of protecting the moral rights which was until then in the first place.A number of international documents have come about in order to put an end to this lacunae. With their functional structure relating to the Berne Convention 1886, various international copyright standards have been developed, that is to say, TRIPs/WTO system and World Intellectual Property System (WIPO). However, owing to the lack of enforcement standards and political will, such systems had been a near failure in India especially with respect to the issue of moral rights. The aforesaid views of the authors could be best put in a chronological sense by saying that,
‘Attempts, if any, made by the international agreements to develop a watertight narrative of moral rights (grounded in positive law) have mostly failed. It can in fact be shown that in years since the Berne Convention there has been a counterproductive tendency to water down obligations.’
# The present case was a significant attempt by the Delhi High Court to overcome the differences in the underlying philosophies among several school of thoughts by creating a uniform, comprehensive and nationally accepted copyright regime in which morality is equally synergized.
Ø Brief facts of the case
# Way back in the year 1962, the entrance wall of Vigyan Bhawanwas blessed with a forty feet high and one hundred forty feet long bronze mural sculpture of Norse God, which had taken about half a decade to complete. It was not long before the ‘bronze’ mural became an essential part of India’s ‘golden’ art heritage.The mural was inaugurated at the Vigyan Bhawan, in 1962 which was themed on and was supposed to depict the science of rural and modern India. The sculpture was important for the public interest.The mural which spell bound the poetic eyes of Pundit Jawaharlal Nehru; the mural which was approved by the scholarly Dr. Raj Anand and Dr. M.S Randhawa; that mural was pulled down without the consent of the artist and dumped in a store house in the year 1979, left only for the ‘tiny particles of Earth’ to appreciate. Consequently, it was not before the year 1992 that the petitioner gathered evidence and courage to initiate a legal battle against the Union of India, which eventually stretched for more than a decade; the legal battle to fight for his moral rights; the legal battle which left no stones unturned in recognising moral rights of creative artists’ under the Copyright Act, 1957.
# The procedural posture of the case involved an interim order being passed by Jaspal Singh, J. which epitomized issues in the dealing of the case and quoted the report by Ministry of Human Resources Development which was observed in the present case: ‘Although it is possible to advise Shri Amar Nath Sehgal to go to Court, I do feel that when the Government had commissioned an important work from a well-known artist, it would be appropriate for the Government to try to deal with the artist's work fairly.’ These words fell on deaf ears.
# But, during the procedural purpose by a quirk of fate, Jaspal Singh, J. being an art aficionado with a flair of poetic justice handed down the restraining order to the defendants after which the issues were framed for the final hearing.
# Suit was decreed in favour of the plaintiff and the moral rights was identified as the soul of the author’s works. It was also held that the mutilation of a work is biased to the author's notoriety and reputation and in an indirect way influences the social legacy of the nation. Knowledge about authorship not just recognizes the creator, it likewise distinguishes his commitment to national culture. It likewise makes possible to comprehend the course of social advancement in a nation.
Ø Issues raised
The Hon’ble High Court framed four issues in the year 2003 which were as follows:-
Whether the suit is maintainable under the Limitation Act, 1963?
Whether special rights of authors under Section 57 of the Copyright Act, 1957 have greater standing than the assigned exclusive rights of the respondents?
Whether the act of respondents violate petitioner’s special right under Section 57 of the Copyright Act, 1957?
Whether the petitioner has suffered any damage by the act of respondents?
Ø Contentions of parties
# The petitioner contended that with the destruction of his mural, his identity, repute and handwork was distorted since the mural was of national importance and a symbol of cultural heritage. In relief he prayed for permanent injunction to bar the government from further demolishing and asked for monetary compensation of INR 50 lac for restoration of the article and for the mental injury caused to him due to this case.
# On the counterpart the other party contended that with the assignment of the article, they had the privilege to decide the fate of the article and none act of the respondents infringe any of the rights of the artist. They also pointed out that the terms of the contract were not in infraction with Section 57 of the Copyright Act, 1957.
Ø Analysis of judgment
# The first issue which related to the period of limitation was adjudged by the Court in favour of petitioner on the basis that moral rights as provided under Section 57 of the Copyright Act, 1957 lasts for the lifetime of the creative artists’. The Court while holding that the suit was not barred by limitation took cognizance of the correspondence between the parties that had taken place in the year 1991. The Court observed that period of limitation started after the petitioner received a letter from the Government of India dated 6/6/1991, recognising the dismantled condition of the mural. After which the petitioner sent a legal notice to the respondents dated 1/9/1991.
# Additionally, the Court elaborated Section 57 by defining the scope of moral rights as consisting essentially of four types of rights i.e. Paternity right, Dissemination right, Moral right of Integrity and Right to Retraction.Paternity right is the right to be associated with the work. Dissemination right is the economic right to sell the work for valuable consideration. Moral right of Integrity incorporates the right to maintain purity in the work. Right to Retraction bestows power on the creative artists’ to withdraw their work from publication. The aforesaid is the riposte of second and third issue.
# The Court appreciated the celebrity status of petitioner by acknowledging his national and international accolades, in order to address the core of the fourth issue.The Court was well satisfied with the eminent stature of the petitioner and this was reflected when Justice Nandrajog said, ‘Who does not know Amarnath Sehgal in India? I am sure that if a survey was carried out, every literate person in India would respond that he has heard about the petitioner and his works.’The Court also appreciated the fact that the respondents, at no stage of proceedings, refused the vesting of moral rights in the petitioner. Thus, the court awarded the fourth issue in favour of petitioner.
# The judgment also straightforwardly responds to the query, whether destruction of creation is the extreme form of mutilation by indicating importance of national cultural heritage for maintaining the integrity of the nation. The reason for preserving the Patents, copyrights and letting them go into public domain after certain period is that the release of these article builds and escalates public knowledge which is indicative of the fact that destruction of national treasure result in destruction knowledge and heritage. The judgement not only weighed the individual moral rights of the creative artists’ but also the public interest involved, by linking and accounting it to the cultural heritage of the nation.
# The judgment entails far wider implication than what is reflected from its first reading. Through the judgment Hon’ble Delhi High Court widened the scope of moral rights so as to link it to the protection of cultural heritage. Thus, as per the interpretation of the Court, moral rights as under Section 57 can also be legally used to protect cultural heritage of the nation. Furthermore, several international conventions relating to protection and recognition of cultural art and heritage were mentioned in the judgment. The Court while placing its reliance on the dicta of Vishakha v State of Rajasthan observed that in absence of domestic law occupying a field, international conventions can be read into domestic laws, provided that they are not inconsistent with the domestic laws. Therefore, if we read Section 57 with these international conventions we can legally protect our national cultural heritage. Additionally, in order to impose liability on the State, the Court widened the scope of Section 57(1) thereby justifying the ‘policy’of protection of Indian cultural heritage.
# The present case goes beyond material aspects of the world, for the ambit of moral rights is at issue. While defining the ambit of moral rights, the Court weighed the ethical and equitable aspects of the word ‘rights’. The judgment reinforces the idea that ‘a right without enforcement is no real right at all’. Moral rights exist in the nucleus of the work produced where the whole crux lies. The substantial involvement of the question of moral rights in this case has made the matter come up to surface which can help give creative artists’ more respect and powers to protect their work against everybody. The judgment iterates the idea that moral rights are exclusive to creative artists’ and distinguish them from the commons, and serves them with a stage to exclude themselves from entire world.
# In his one of a kind judgment, Justice P. Nandrajog has articulated and appreciated the very soul of copyright law i.e. moral rights in an extremely creative and artistic manner. The judgment opens with its second paragraph referring copyright as ‘the Cinderella of the family of intellectual property’. A similar approach of Justice Jaspal Singh, regarding moral rights, is also reflected though every word of his interim order. The judgment, simply by the mere use of words and phrases, left no stones unturned in reflecting that the status of moral rights is unparalleled. Period. The authors feel that the judgment in itself is a piece of art. The frequent use of phrases are in contrast to any ‘day-to-day’ judgment, for instance, in the judgment a reference was made to Act II Scene III of Shakespeare’s Othello. All said and done, this judgment is a ‘chicken soup’ for the mind.
# Though the judgment covers almost all the aspects of the domain of moral rights, however certain unfilled spaces were felt by the authors. Firstly, the authors are of the view that the Court, in addition to quoting several international conventions, could have also made a reference to Article 49 of the Constitution of India which imposes a duty on the State ‘to protect every monument or place or object of artistic or historic importance from spoliation, disfigurement, destruction, removal, disposal or export’. The authors believe that the present judgement could have had a far wider implication and could have satisfactorily justified imposing liability on the State if such reference was made.
# Secondly, the Court failed to clear the air around the issue that bridges the right of assignee and the moral rights of the creative artists’. The Court in para 16 of the judgment took into evidence the fact that moral rights were not waived off by the petitioner. Therefore, from reasonable interpretation of the dicta in para 16 it is seems as if moral rights can be waived off through assignment, which contravenes the very basis of the entire judgment. The Court failed to acknowledge the lacunae that ‘moral rights are independent of a creative artist’s copyright. They exist even after the assignment of the copyright, either wholly or partially.’
# Thirdly, although the Court reasoned the petitioner’s award of INR 5 lac on the basis of ‘loss of reputation, honour and mental injury due to the offending acts of the respondents’, however the authors believe that the Court could have further justified the said award, for the petitioner had demanded INR 50 lac ‘for humiliation, injury, insult and loss of his reputation’. The authors are of the view that the Court failed to answer the basic question that would strike every layman person’s mind i.e. how to account monetary damages for moral rights? The authors believe that the Court could have formulated a set of guidelines for computing the damages in case of infringement of moral rights because the question that still remains unanswered is, ‘How can you quantify something which does not exist objectively?’
# The present case, by affording recourse to authors, has presumably been interpreted as granting moral rights to authors, in particular, moral rights of integrity. Therefore, in a way we can say that the Indian Copyright legislation has moved further on, or at the very least broadened the scope of a creative artist's’ reputation even for the work which has not given him that much fame to distinguish it from his other arts and notwithstanding with presence of the above eminence, every artist has the right to protect his work.
# The question which still remains uncertain in India is, ‘whether there can be moral rights pertaining to non-existent works, that is to say, works in a nascent stage of production?’, for countries like France adhere to a copyright regime which puts alienable and perpetual riddance on moral rights. The authors are of the view that the copyright regime owing to the divide between economic and moral rights, allows for greater room to counter-balance such uncertainties. The waiver clauses in the copyright agreements are only acceptable when it is in writing and has the nature of reasonable character. Only those waiver are upheld which are revocable and applies to modification of work in which copyright subsists but not those which appears to have straight jacket formula for waiver.
# The Indian Judiciary system has to be praised for its effort in making a hybrid copyright structure that has been sharply drafted to bridge the Kantian with the Hegelian model. But it may put one in a position to think that balancing of such a distant regime to be not in harmonization with the globalised copyright rights which in turn can have more negative effects.Today also the world is working on the wanton methods, which are vicious and deliberately wicked, rather than developing the understanding and instilling of sound models.
# Therefore, from the present case it is clear that ‘once vested, the bundle of rights known collectively as “the copyright” gives the author the exclusive rights to reproduce, to adapt, to distribute, to perform publicly and to display the copyrighted work’
# Amar Nath Sehgal v Union of India,2005 (30) PTC 253 Del,112 (Jaspal Singh, J).
# Throughout the analysis, the authors have employed the term ‘creative artist’ to refer broadly to all authors as defined under Section 2(d) of the Copyright Act, 1957.
# Adeney Elizabeth,The Moral Rights of Authors and Performers: An international and Comparative Analysis(OUP 2006).
# Karl Widerquist, ‘Lockean Theories of Property: Justifications for Unilateral Appropriation’ (2010) 2(1) PublicReason <http://www.publicreason.ro/articol/21> accessed 29thApril, 2017.
# Graham Dutfield and Uma Suthersanen,Global Intellectual Property Law(Edward Elgar Publishing 2008) 75.
# Manu Chaturvedi, ‘Moral Rights in India: A Call for Holistic Review’ (2011) 4 Indian Journal of Intellectual Property Law 52 <http://www.commonlii.org/in/journals/INJlIPLaw/2011/3.html> accessed 29thApril, 2017.
# AK Agarwal and SS Priyatham, ‘Moral Rights in Copyright Law’ (2003) 8 SCC (Jour) 3 <http://www.ebc-india.com/lawyer/articles/2003v8a3.htm> accessed 29thApril, 2017.
# Chaturvedi, ‘Moral Rights in in India’ (n 7) (emphasis added).
# Constructed in 1956, Vigyan Bhawan is the premier centre for National and International conferences and various other meetings organized by various Ministries and Departments of Government of India. It is being managed by the Directorate of Estates, Ministry of Urban Development Government of India.
# Amar Nath Sehgal v Union of India,2005 SCC OnLine Del 209, – .
# Ibid .
# Amar Nath Sehgal(n 11)  – .
# (1997) 6 SCC 241.
# Article 49 of the Constitution of India, which imposes a duty on the State to ‘protect monuments and places and objects of national importance’.
# Ibid (n 1).
# Amar Nath Sehgal(n 11) .
# Amar Nath Sehgal(n 11)  – .
# Mannu Bhandari v Kala Vikas Pictures Pvt. Ltd., AIR 1987 Del 13,  (emphasis added).
# Sonia Baldia ‘Intellectual Property in Global Sourcing: The Art of Transfer’ (2007) 38 Georgetown Journal of International Law 499; Mira T Sundara Rajan, ‘Moral Rights in the Public Domain: Copyright Matters in the Works of Indian National Poet C Subramania Bharati’ (2001) Singapore Journal of Legal Studies 161, 175.
# Agarwal and Priyatham, ‘Moral Rights in Copyright Law’ (n 8).
# Chaturvedi, ‘Moral Rights in in India’ (n 7).
# DS Ciolino, ‘Why Copyrights are not Community Property’ (1999) 60 Louisiana Law Review 127, 133 <http://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=5803&context=lalrev> accessed 10thMay, 2017.
*Candidate, B.tech LL.B (Hons.) IPR, UPES Dehradun, Batch 2012-18. The author may be reached via mail firstname.lastname@example.org.
**Candidate, B.tech LL.B (Hons.) IPR, UPES Dehradun, Batch 2012-18. The author may be reached via mail email@example.com.
||This article has been Awarded Certificate of Excellence for Original Legal Research work by our Penal of Judges