Copyright, whatever may be said, is primarily an economic right which can be used to protect the monetary profits made of such things as literary, artistic, musical, dramatic, and cinematographic works. Moral rights are rights which exist independently of copyright. They were included in the Berne Convention as far back as 1928 and, in India, they are spoken of in Section 57 of the Indian Copyright Act as Special Rights. The Special Rights which Indian copyright law recognizes are basically the rights to paternity and 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. Special Rights continue to vest in an author even after the copyright in the work is assigned either wholly or partially, as the statute clearly states and as was held in Smt. Mannu Bhandari v. Kala Vikash Pictures Pvt. Ltd. and Anr., [AIR 1987 Delhi 13]. In addition to this, the right to integrity can be exercised by the legal representatives of the author.

 

There are exceptions though. The failure to display a work at all and the failure to display it to the satisfaction of its author are not considered to be an infringement of the rights conferred by Section 57. 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.

 

Justice Pradeep Nandrajog spelt out the rationale behind moral rights in Amar Nath Singh v. Union of India. [2002(2)ARBLR130(Delhi); 2005(30)PTC253(Del)] saying, “In the material world, laws are geared to protect the right to equitable remuneration. But life is beyond the material. It is temporal as well. Many of us believe in the soul. Moral Rights of the author are the soul of his works. The author has a right to preserve, protect and nurture his creations through his moral rights.”

 

It is fairly clear that Special Rights cannot be assigned. However, what is not quite as clear is whether Special Rights can be waived by an author under Indian law. Globally, the situation varies quite a bit with some countries such as England (in the Copyright, Designs and Patents Act, 1988) and the US (in the Visual Artists Rights Act, 1990) allowing waivers of moral rights in some circumstances. Also, some countries define moral rights quite a bit more widely than India does. For example, in the UK, the law defines four moral rights: the rights to paternity, integrity, publicity and against false attribution. The right to publicity ‘controls’ how a photographer may use photographs of other people by allowing his subjects to place certain restrictions on the use of their photos. And the right against false attribution enables persons to ensure that they are not falsely represented to be the authors of works they did not create. In India, presumably, if a person were to try to protect these rights, it would have to be under the law of torts — the right to publicity has been recognised by the Indian judiciary — or the law of defamation. (In India, defamation is both a criminal and a civil offence,)

 

But, coming back to the waiver of moral rights, in India, since the statute is silent and case law is not entirely clear, the question is debatable. It might be possible to argue that moral rights are analogous to Fundamental Rights since Article 27(2) of the Universal Declaration of Human Rights, 1948 says that every person has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author, and the Supreme Court of India has, in recent years, been willing to read the provisions of international conventions into the corpus juris of India where there are lacunae in municipal law. Considering that this has not actually been done in the case of moral rights though, one can only make an educated guess about whether or not it would be done.

 

This, however, is academic and is not especially helpful when it comes to understanding what to do in a contract such as an author-publisher contract. In some contracts, especially those with certain British publishers, there are clauses which not only say that the author assigns his copyright to the publisher in the territory — with the Territory somewhat incredibly being defined as the Universe — but also that the author waives his moral rights. Where the agreement is governed by English law, this isn’t difficult to do. It may be unfair to the author especially since publishers sometimes come up with the far-fetched explanations of why they desire authors to waive moral rights but it is, nonetheless, legal.

 

The picture changes though when it comes to contracts governed by Indian law. Considering that the Indian position is unclear, there are a few options one has. Firstly, one could simply say that the author agrees to waive his moral rights in the contract. Secondly, one could say in one clause that the author agrees to waive his moral rights and add that that clause will be governed by Section 87(2) of the PDCA, 1987 of the UK, Section 14.1 of the Copyright Act, Canada or some other law which allows waivers of moral rights. Thirdly, one could say that the author will not sue his publisher or some other person for the infringement of his moral rights. There are problems with all of these approaches though, and any agreement using any of them should contain a well-drafted severability clause. The problem with the first approach is clear enough — it may not be legally possible to waive moral rights. The second approach would, in all probability, result in an agreement with dual governing laws which may not be desirable and which the courts may not be enthusiastic about enforcing. And the third approach would probably be struck down in view of Sections 23 and 28 of the Indian Contract Act, 1872. So, these approaches may not create any legal restraints in the enforcement of moral rights although they may of some value as psychological restraints.

 

A fourth approach would be to draft an agreement with a severability clause inter alia saying that notwithstanding anything contained in Section 57 of the Indian Copyright Act, an author will not be entitled to any damages, compensation, or remuneration on account his Special Rights; and that the decision as to whether any distortion, mutilation, or modification of an author’s work is prejudicial to his honor or reputation will lie with some other person (such as the publisher) and that the author agrees not to protest against or resist the decision of that other person. This approach would probably not fall foul of the law but would, for all practical purposes, have the same effect as a waiver of moral rights.