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What constitutes moral rights of an author or a performer?

Updated: Jul 6, 2021

As a concept - 'moral rights' have been controversial and continue to evoke discussions and debates regarding their precise scope and their enforceability. Moral rights were first recognized in the German and French civil law tradition before they were adopted into the Berne Convention for the Protection of Literary and Artistic Works, 1886 ("Berne Convention").

Statutory Recognition under Indian Copyright Act, 1957

Moral rights have been recognized at two places in the Indian Copyright Act, 1957 ("the Act")

(i) Section 57 - Moral Rights of Authors

Section 57 recognizes moral rights of authors as a special right. As per section 2(d) of the Act, Authors refer to scriptwriters, novelists, music composers, lyricists, sculptors, painters, photographers and such other individuals who create copyrightable works that are capable of copyright protection.

(ii) Section 38B - Moral Rights of Performers

Section 38B was a new section introduced under the Copyright (Amendment) Act, 2012 which amended the Act. Under this section, moral rights are available to performers. As per section 2(qq) of the Act, performers refer to actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance.

Interestingly, Section 57 makes no mention of the phrase, 'moral rights', whereas Section 38B explicitly makes a mention of the said phrase in its heading. Moral rights haven't been defined anywhere explicitly in any statute. The Berne Convention also does not title Article 6bis under the heading of moral rights.

Moral Rights is a Bundle of Rights

The term moral rights does not allude to a single special right. It is quite like copyright, in the sense, that it is also a bundle of rights. It is therefore an umbrella term, and it constitutes the following individual special rights of authors and performers. For each of the right, I have used 'authors' below, although each of these rights may be asserted by performers also, depending on the context.

(i) Right of Attribution: This right refers to an author's right to assert authorship of a work. It means that an author can stop someone else from passing off the author's work as their own.

Illustration: Haruki Murakami has written, "The hard boiled wonderland and end of the world". This means that Haruki can legally prevent you from claiming to be that book's author. Only Haruki will have the right to publish that book under his name, to the exclusion of every one else in the world.

(ii) Right of Integrity: This right refers to an author's right to ensure that their work does not get distorted or mutilated or modified in a manner that is prejudicial to the author's honour or reputation. It means that an author can prevent others from modifying their work in a manner that may harm the author's reputation or honour.

Illustration: Subhash Ghai has produced a feature length film titled, "Mr. India" of 3 hours 01 minutes and has permitted Sony LIV to make the film available online on an on-demand basis without authorizing Sony LIV to make any cuts or edits. If Sony LIV makes any cuts, edits or alterations without Subhash Ghai's permission as a result of which the duration of film is reduced to 2 hours 40 minutes, then Subhash Ghai may claim that his special right of integrity has been violated.

(iii) Right of Disclosure: This right refers to the author's right in deciding when the author's work shall be disclosed or published. It means that an author can prevent others from publishing their work without their prior approval.

Illustration: Abhishek Upmanyu has written a new novel called, "Marathi Malady" and agreed with the book's publisher that the book will be published on 25th April, 2023. If the publisher publishes the book on 25th April, 2022, then Abhishek Upmanyu can sue the publisher for violating his special right of disclosure.

(iv) Right of Withdrawal: This right refers to the author's right to withdraw an already circulating work. It means that an author can prevent others from publishing their work once the author has withdrawn it from circulation.

Illustration: Yo Yo Honey Singh is known to have created the song "Choot Volume II" a highly misogynistic track that he made with his fellows from their rap group, 'Mafia Mundeer'. However, Yo Yo denies having authored that song, perhaps because he no longer wants to associate with a work which is not reflective of his current stature and size of his personality. Here, if Yo Yo does not want to be associated with that song and withdraws the song from the public sphere, then any one found publishing that song will be violating Yo Yo's special right to withdraw his works.

The above delineation of individual special rights is by no means an indication of the special rights recognized and enforceable under the Act. You should avail of independent legal advise if you as an author or a performer, want to determine whether you should be asserting your special rights, and if yes, then which one - considering all the circumstances of your project, or the manner in which you or your heirs, relatives or successors may be able to enforce your special rights.

Also, if this caught your curiosity, then here is something that you can do for whetting your curiosity further. I invite you to participate in crowd-researching for a query that I have made in our discussion forum. The query seeks to determine the first instance of someone asserting any of the above special right or any other right which have been treated as part of authors' and performers' special rights.

Important Disclaimer: The information provided herein this article is our interpretation and understanding of the law. The legal analysis presented hereinabove is not given for application to any specific set of facts or circumstances peculiar to you or your organization. You may rely on the write-up for your peculiar facts or circumstances at your sole risk only. We will not be liable, answerable or responsible to you under any client-attorney relationship.


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