AMAR NATH SEHGAL v. UNION OF INDIA: INTERPLAY BETWEEN ECONOMIC AND MORAL RIGHTS UNDER COPYRIGHTS, ALONG WITH COMPARATIVE ANALYSIS

INTRODUCTION

This case of Amar Nath Sehgal v. Union of India is one of great significance, so much so, that the WIPO Magazine even termed it as the Battle of the Mural.[1] The case was filed in 1992, only to be fought for the next 13 years, and was finally settled in 2005. The case gained significant attraction and importance all over the world, especially since the question about the extent of the moral rights of an artist was considered in this case.

FACTS

The plaintiff, Mr. Amar Nath Sehgal is a sculpturist known all over the world for his works, and has even been conferred many awards for his contribution to the Indian Heritage. In 1957, the Ministry of Works, Housing and Supplies of the Union Government of India commissioned the plaintiff to create a Mural made out of bronze, to be put in the lobby of Vigyan Bhawan, India’s most prominent International Convention Hall, in Delhi. This mural measured 140 feet wide and 40 feet long, and took more than five years to complete. It is safe to assume that this piece of art subsequently became a significant part of India’s Cultural Heritage.

The Dispute arose in 1979, when the Government of India decided to renovate Vigyan Bhawan, as a result of which the Mural was stripped off the walls of the Convention Hall and whatever remained was dumped into an unknown store room of the Government, without the permission or authorization of the plaintiff, Mr. Amar Nath Sehgal. When he came to know of this situation, he made several representations to the relevant authorities, but to no avail.

Aggrieved by the actions of the Government, Mr. Amar Nath Sehgal decided to take relief under Section 57 of the Copyright Act, 1957. He thus, filed a petition in the High Court of Delhi, in 1992, praying for:

· An Apology from the Defendants; and

· A permanent injunction on the defendants to restrain them from distorting, mutilating or damaging the plaintiff’s work of art; and

· Damages of ₹50 Lakhs.

ISSUES INVOLVED

The Main issues to be determined by the High Court of Delhi were:

· Whether the suit was barred by limitation

· Whether the plaintiff had moral right over the mural even when the copyright vested with the Government of India

· The extent of damage suffered by the plaintiff and the subsequent relief to be granted.

RULES INVOLVED

Section 57 of the Copyright Act, 1957:

Author’s special rights.— (1) Independently of the author’s copyright and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right—

(a) to claim authorship of the work; and

(b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation:

Provided that the author shall not have any right to restrain or claim damages in respect of any adaptation of a computer programme to which clause (aa) of sub-section (1) of section 52 applies.

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) The right conferred upon an author of a work by sub-section (1) may be exercised by the legal representatives of the author.

ANALYSIS

WHETHER THE SUIT WAS BARRED BY LIMITATION

It was argued by the Government of India that the suit is barred by the Statute of Limitation, since the limitation period to bring a suit is three years, while the suit was brought in 1992 after the mutilation of the mural occurred in 1979. The court, on the other hand, held that the period of limitation would begin from 1991, when the letter, recognising the respect refused to the mural, was sent to the plaintiff by the defendants. Thus, the suit is not barred by limitation.

WHETHER THE PLAINTIFF HAD MORAL RIGHTS OVER THE MURAL EVEN WHEN THE COPYRIGHT VESTED WITH THE GOVERNMENT OF INDIA

In dealing with this issue, the court examined both, the national and international framework, at length, in order to decide this issue properly. The court stated that the Paternity Right and Right to Integrity automatically flow from the creation of any work, apart from economic rights. While both, the national and international framework state that a negative impact on the author’s reputation is an essential aspect of the violation of the Right to Integrity, this view is too narrow.

It was contended by the plaintiff that, mutilation with respect to a creative work means alteration of the work so as to render it imperfect, while destruction is the ultimate form of mutilation. Further, it was also contended that such mutilation and destruction cause harm to the fame and reputation of the author by reducing his or her “creative corpus”.

The Union of India, on the other hand, contended that while there was some mutilation of the plaintiff’s work, there was no harm to the reputation of the plaintiff and thus, it could not have been said that the moral rights of the plaintiff were violated. Thus, the plaintiffs were proponents of a wider view, while the defendants were proponents of a narrower view.

The court stated that the mural was now considered as a national treasure, and enhanced the plaintiff’s reputation to that of a celebrity. Further, it was also stated that the mural was too precious to be reduced down to scrap and languish in some unknown storeroom of the Government. Thus, it had acquired the status of cultural heritage of the nation.

The court relied on various international conventions, such as, The Declaration of Principles of International Cultural Co-operation[2] and the International Covenant on Economic, Social and Cultural Rights[3], all of which called for protection and preservation of cultural rights. It further relied on the case of Vishaka v. State of Rajasthan[4], where it was held that international covenants can be enforced in the country by courts of law.

In the end the court reached the finding that the moral rights of the plaintiff had been violated. The court was also in support of the wider view, which propounded that a negative impact on the reputation and honour of the author. It was thus held that only the plaintiff has the right to recreate the mural which entitles him to the right to compensation and return of his work for the loss caused to his reputation and honour.

THE EXTENT OF DAMAGE SUFFERED BY THE PLAINTIFF AND THE SUBSEQUENT RELIEF TO BE GRANTED.

Based on the findings in the previous issue, the court ruled that there was a violation of section 57 of the Copyright Act, 1957 and granted the following prayers in favour of the plaintiff:

· Mandatory Injunction to return to the plaintiff the mural.

· All rights with respect to the mural are now vested with the plaintiff and not the defendant.

· Absolute Rights granted to the plaintiff to recreate the mural.

· Compensation of ₹5 Lakhs with Interest @ 9% p.a.

· All costs to be borne by the defendants.

CONCLUSION

The finding of the court led to many debates across the world, as this was a landmark decision related to the significance of moral rights. The court, contrary to the principles in the Berne Convention, as well as the Copyright Act, held that the view that there must be a negative impact on the reputation and honour of the author in order to prove a violation of moral rights of the author. It further held that even a destruction of a work of art can cause violation of moral rights.

Further, the court even set a new precedent in awarding damages for the violation of moral rights, as well as transferring the economic rights back to the plaintiff for violation of his moral rights. This gives rise to the question as to whether economic rights can be affected by a violation of moral rights. This interim order passed by Jaspal Singh, J. in favour of the plaintiff also led to an amendment in the Copyright Act in 1994[5], which brought the provision under Section 57 of the main Act in line with Article 6bis of the Berne Convention.[6]

In light of this amendment in 1994, an important question that Justice Nandrajog needed to address was that of which law would be applicable to the final ruling, the pre amendment or post amendment Copyright Act. There were compelling arguments for both the sides, as the old provisions of the Copyright Act would apply because they governed the time when the acts of destruction occurred, and when the case was actually filed before the court. On the other hand, he could have said that the post amended provisions should apply because they reflected the currently policy of the Govt. and were actually in force at the time of the judgment. However, he sidestepped the question and chose neither of the paths, arguing that the law must be read to fulfil the higher objective of protecting our cultural heritage, in light of the many international treaties on cultural heritage that India is a signatory to. The artwork in question constituted an ‘outstanding work of art’ and in such cases there is an overriding obligation to protect their integrity, no matter which law is applied.

STATE THE SIGNIFICANCE AND VIEWS ON THE INTERPLAY BETWEEN ECONOMIC AND MORAL RIGHTS UNDER COPYRIGHT LAW

The ruling in the case of Amar Nath Sehgal v. Union of India[7] led to many debates, about the interplay of economic and moral rights, across the world. This is because this landmark case marked the first time when a remedy in the form of damages was awarded for a violation of moral rights under Section 57 of the Copyright Act.

The expression of moral rights can be found under section 57 of the Copyright Act, 1957.[8] The Section divides these moral rights into 2 parts, namely:

· Right of Paternity, where the author has the right to claim authorship of the work, even though the copyright may be assigned to someone else; and

· Right to Integrity, which allows the author to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation.

Section 14 of the Copyright Act, 1957 on the other hand, expresses the Economic Rights of the author in the form of restrictions on activities related to unauthorized reproduction and distribution of an original work.[9]

While section 55 of the Act provides for civil remedies, including damages, for the infringement of any of the rights of the author, even moral rights, this had never been done before the case of Amar Nath Sehgal.

The question that arises here is that since it is only the economic rights which allow an author to derive financial benefits from their work[10], is it fit to award damages in the cases where moral rights of an author are violated, especially since the moral rights only allow authors to protect their link with a work.[11]

The answer to this question lies in the interpretation of the object behind economic and moral rights. Economic rights allow anyone who owns the copyright to derive economic benefits by reproducing or distributing the original work of an author. While the author is the first owner of these economic rights, they can be transferred or assigned to another person as well, is the condition laid down under Section 19 of the Copyright Act, 1957 are met with.[12]

Moral rights, on the other hand, cannot be assigned to any person. They remain with the author for his lifetime and are applicable even 70 years after the death of the author, which is the same as the period of a copyright. In many circumstances, authors waive their moral rights, but there can be no transfer of the same.[13]

This leads to the interplay between moral and economic rights, where even though the economic rights may be licensed or assigned to another person, the acknowledgement has to be given to the author for creating the work. A violation of this would result in a possibility of damages as well.

In the case of Amar Nath Sehgal v. Union of India[14], damages were awarded to the plaintiff because of the mutilation of his work that caused significant damage to his reputation and fame. Further, the court even granted the economic rights back to the plaintiff, from the defendant because the moral rights of the defendant were violated. Following this, many people have filed cases demanding compensation for violation of their moral rights. The most recent case is that of Javed Akhtar, where he issued a legal notice to the famous, Malik Brothers and Super Cassettes Limited for using a part of the song he had written long ago, in a reprised version of the same. In this legal notice he has demanded a sum of ₹10 Crores as compensation as well.[15]

While it may seem that Javed Akhtar’s right to Paternity has been violated above, it must also be noted that the song was a modification of the original song, to which Javed Akhtar did not own the economic rights. Thus, following the rule laid down in the Act, as well as the case of Manu Bhandari v. Kala Vikas Pictures Ltd.[16], the modification must result in damage to the reputation and fame of Javed Akhtar as well. This factor must also be considered in deciding the amount of compensation to be awarded.

The above scenario is a classic example of the interplay between economic and moral rights related to a copyright. Even though the economic rights were licensed to another party, there was a violation of moral rights which may entitle the author to compensation in the form of damages. Thus, even though the economic rights may be assigned to another party, it is not possible to take away the original work from the author, due to the existence of moral rights.

ANALYSIS OF THE POSITION OF ECONOMIC RIGHTS AND MORAL RIGHTS IN THE JURISDICTIONS NAMELY, USA, EU, INDIA AND ANY ONE SOUTHEAST ASIAN COUNTRY.

Name of Country

Economic Right

Moral Right

Remarks/Issues

The United States of America

Copyright includes a bundle of economic rights, which provide protection to the owner’s creative work. The Copyright Act, 1976[17] gives the owner exclusive rights to control the commercial exploitation. The following are the commercial rights of the creator:

For a copyright owner of literary, dramatic and musical works, the exclusive rights refer to the following acts:

1. Reproduction of the work in material form;

2. Publication;

3. Communication to the public;

4. Performance in public; and

5. Adaptation.

Owners of artistic works are limited to the following rights:

1. Reproduction;

2. Publication; and

3. Communication.

The exclusive rights concerning subject matter other than works consist of the rights to:

1. Reproduction;

2. Publication; and

3. Communication (except for broadcasts and published editions).

There are two major rights under the U.S. Copyright Act.[18] These are (1) the right of attribution, also known as the right of paternity; and (2) the right of integrity.

The moral rights related to visual works are granted in section 106A[19], and

Moral rights are very rarely asserted in the U.S., and even more rarely is such as assertion given any weight by a court. Part of the reason for this is that any decently drafted legal document that grants a copyright license will include a waiver of all moral rights, even for works (like books) for which U.S. law doesn’t protect moral rights.[20]

It is pertinent to note that Moral Rights were not a part of the American IP Regime until recently, when they became signatories to the Berne Convention in 1989.[21]

European Union

Some of the commercial rights available to creators under the EU Law are[22]:

Right to reproduce;

Right of communication;

Right of distribution;

Right of fixation;

Right of rental;

Right of broadcasting (for performers);

Moral rights in the EU are guaranteed under the Berne Convention.[23] Some of these are:

Be identified as the author of a work

Object to derogatory treatment of a work

Publish a work anonymously or pseudononymously

The right to not be attributed for works that you no longer wish to claim

The concept of moral rights originated in Europe, more particularly, France and Germany. From there, moral rights were signed into the Berne Convention of 1928, which has since been signed by most nations, including the United States.

In the European Union, the Moral rights are not necessarily determined by a single law laying it down, like in India, or the USA, but a number of laws, including:

India

Economic rights are granted to creators under section 14 of the Indian Copyright Act,[27] and contain the following.

Right of Reproduction;

Right to Distribute;

Right to make Derivative Works;

Right to Perform Publicly;

Right to Follow (Right to obtain percentage of the subsequent sales of their work. Right generally only given to authors and artists.)

The Moral Rights are granted under section 57 of the Copyright Act.[28] These are majorly:

The Right to Paternity;

The Right to Integrity;

The Right to Disseminate;

The Right of Retraction.

The courts had never dealt, a significant manner, with Moral rights in India until Amar Nath Sehgal v. Union of India. There were cases earlier, which had held that until the final disposal of the suit, the publishers cannot print or publish the books written by the author.[29] There was also a judgement where it was held that modifications, which are permissible, such as those which do no convert the film into an entirely new version from the novel, and be made.[30] And finally, films showing indignities, torture, and feeling of guilt towards the illiterate plaintiff who dictated the story for a novel, cannot be exhibited.[31]

Singapore

The Commercial Rights available to creators under the Singapore act are[32]:

The Right to Reproduce your work;

The Right to Perform Publicly;

The Right to Publish;

The Right to make adaptation of your work;

The Right to communicate your work;

The right to enter into commercial rental arrangement in respect of recording;

The right to cause the film based on your works to seen in public.

The moral rights available to the creator are:

Right of Attribution; and

Right of integrity.

Copyright Act (Cap. 63) of Singapore was passed in 1987 and is based on Australian legislation. The original Copyright Act 1911[33] of United Kingdom remains relevant in relation to copyright material made before the current Act came into effect. In Singapore, an author automatically enjoys copyright protection as soon as he creates and expresses his work in a tangible form. There is no need to file for registration to get copyright protection.

The Copyright Act does not expressly make any reference to moral rights, and given the commercial justification approach to its construction, it appears at legislators intended for there to be no moral rights in Singapore. However, there are provisions within the Copyright Act and other areas of Singaporean law that allow for some possibility of the protection moral rights within Singapore.

[1]Binny Kalra, Copyright in the Courts: How Moral Rights Won the Battle of the Mural, Issue 2, 2007, https://www.wipo.int/wipo_magazine/en/2007/02/article_0001.html (last visited 27/8/19)

[2] Article IV, The Declaration of Principles of International Cultural Co-operation, http://portal.unesco.org/en/ev.php-URL_ID=13147&URL_DO=DO_TOPIC&URL_SECTION=201.html

[3] Article 15, International Covenant on Economic, Social and Cultural Rights, https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx

[4] Vishaka & Ors. v. State of Rajasthan & Ors., (1997) 6 SCC 241

[6] Article 6, Berne Convention, https://www.wipo.int/treaties/en/ip/berne/summary_berne.html

[7] Amar Nath Sehgal v. Union of India, (2005) 5 30 PTC 253 Del.

[8] Section 57, Copyright Act, 1957

[9] Section 14, Copyright Act, 1957

[10] WIPO, Understanding Copyrights & Related Rights, https://www.wipo.int/edocs/pubdocs/en/wipo_pub_909_2016.pdf (last visited 28/8/19)

[11] Ibid

[12] Section 19, Copyright Act, 1957.

[13] Supra, note 4.

[14] Supra, note 1

[15] Khurana & Khurana, Violation Of Moral Right In Light Of ‘Ghar Se Nikalte Hi’- Will This Be An Eye Opener For The Trend Of Remixes? https://www.khuranaandkhurana.com/2018/04/26/violation-of-moral-right-in-light-of-ghar-se-nikalte-hi-will-this-be-an-eye-opener-for-the-trend-of-remixes/

[16] Smt. Mannu Bhandari v. Kala Vikas Pictures Pvt. Ltd., AIR 1987 Delhi 13

[17] The Copyright Act, 1976

[18] Section 106, The Copyright Act, 1976

[19] Section 106A, The Copyright Act, 1976

[20] Moral Rights in U.S. Copyright Law - Copyrightlaws.com: Copyright courses and education in plain English Copyrightlaws.com: Copyright courses and education in plain English, https://www.copyrightlaws.com/moral-rights-in-u-s-copyright-law/ (last visited 28/8/2019)

[21] Ibid

[23] Art. 6bis, Berne Convention, 1886

[25] The Agreement on Trade-Related Aspects of Intellectual Property Rights, 1995

[26] WIPO Performances and Phonograms Treaty, 1996

[27] Section 14, Copyright Act, 1957

[28] Section 57, Copyright Act, 1957

[29] KPM Sobharam v. M/s Rattan Prakashan Mandir, AIR 1983 Del. 461

[30] Smt. Mannu Bhandari v. Kala Vikas Pictures Pvt. Ltd., AIR 1987 Delhi 13

[31] Phoolan Devi v. Shekhar Kapoor (1995-PTC Del)

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