Waiver of Moral Right

Swagateeka Patel,
4th Year B.A.,LL.B.
Symbiosis Law School,
Symbiosis International University,
"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"
Moral rights stand for what are termed as "Author's Special Rights". Founded on Article 6bis of the Berne Convention, moral rights protect attribution and integrity, stating:
Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation.
The legislation of different countries varies on author's power to waive his moral rights. At one end, there are some civil law countries, like France, that impose a virtually absolute bar on transfer or the waiver of such rights. At the other end there are common law countries which freely allow the waiver of moral rights.
As a matter of practice, waiver of the moral rights is an inevitable element of the relationship between an author, his work and his publication. Since the production of a book, sound recording or motion picture will necessarily alter the author's original work to some degree, and thus by entering into such a relationship, the author effectively waives the right of integrity and disclosure, at least to the extent reasonably dictated by the terms of the relationship.
In the United States, the term ‘moral rights' typically refers to the right of an author to prevent revision, alteration, or distortion of his work, regardless of who owns the work. Moral rights as outlined in Visual Artists Rights Act, 1990 also allow an author of a visual work to avoid being associated with works that are not entirely his own, and to prevent defacements of his works. The Act provides for waiver of moral rights, but only by a signed, written agreement specifying the work and the precise uses to which a waiver applies. Section 106A of the American Copyright Act provides for waiver of moral rights.
It is also pertinent to note that the concept of moral rights is restricted by the Visual Artists Rights Act of 1990 and the Copyright Act to visual artists only.
Section 87, Copyrights, Designs, and Patents Act, 1988 of United Kingdom deals with the consent and waiver of moral rights. A waiver –
a)      May relate to a specific work, to works of a specified description or to works generally, and may relate to existing or future works, and
b)      May be conditional or unconditional and may be expressed to be subject of revocation;
And, if made in favour of the owner or prospective owner of the copyright in the work or works to which it relates, it shall be presumed to extend to his licensees and successors in title unless a contrary intention is expressed. Any of these rights may be waived by instrument in writing signed by the person giving up the right.
Relevant provisions of Indian Law
Section 57 of the Indian Copyright Act, 1957 provides for moral rights-
57. 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 which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation:
Is Waiver Possible under Indian Law?
A case decided not too long ago by the Delhi High Court, Amar Nath Seghal v. Union of Indiadiscusses the issue of moral rights in substantial detail. In this case, the plaintiff/author assigned his copyright in a bronze mural, to the Union of India. The mural was placed in Vigyan Bhavan, but was later pulled down and dumped. The author, Amar Nath Seghal, sued for violation of his moral rights.

The case was filed in the early 90's and an interim injunction was passed in favour of the Plaintiff. In response, the defendants made an application under the Arbitration Act, 1940 seeking stay of proceedings in the suit claiming that the dispute ought to be referred to arbitration in the light of a term in the assignment requiring arbitration of all disputes.

The defendants further argued that "the plaintiff had assigned his copyrights to the defendants and having purchased the same, the defendants are under no fetters while dealing with the mural in question."
The interim application was decided in 2002 and the case itself was finally decided in 2005. The court dismissed the claim under the Arbitration Act and further observed: "These [moral] rights are independent of the author's copyright. They exist even after the assignment of the copyright, either wholly or partially."
The court quoted from Smt. Mannu Bhandari v. Kala Vikash Pictures Pvt. Ltd. and Anr. (1986)

"Section 57 confers additional rights on the author of a literary work as compared to the owner of a general copyright. The special protection of the intellectual property is emphasised by the fact that the remedies of a restraint order or damages can be claimed "even after the assignment either wholly or partially of the said copyright..." Section 57 thus clearly overrides the terms of the Contract of assignment of the copyright. To put it differently, the contract of assignment would be read subject to the provisions of Section 57 and the terms of contract cannot negate the special rights and remedies guaranteed by Section 57. The Contract of Assignment will have to be so construed as to be consistent with Section 57. The assignee of a copyright cannot claim any rights or immunities based on the contract which are inconsistent with the provisions of Section 57."
From the above wording, it could be argued that "moral rights" are akin to the Fundamental Rights guaranteed under the Constitution, in that they cannot be waived.
Interestingly, Article 27 (2) of the Universal Declaration of Human Rights provides:

(2) everyone 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.
There is no express provision under Section 57 of the Indian Copyright Act, 1957 allowing authors to disclaim authorship. However, according to different statutes, the right to claim authorship also includes the right to disclaim authorship. Under the case Vishaka v. State of Rajasthan, the Supreme Court held that provisions of international conventions can be read into the Constitution where there is no contrary domestic law in the field.
Nations that are members of the Berne Convention for the Protection of Literary and artistic Works are required to meet a minimum level of protection, as set forth in the Berne convention's Article 6bis. The multilateral treaty does not address waiver of moral rights; waiver is neither sanctioned nor prohibited, and individual member nations may implement the Berne Convention in their own ways.
In India, practice shows that moral rights cannot be bought or sold. However they can be waived and it will often be the case that as a condition to any contract which a performer may enter into that employers or production companies will seek a waiver of those rights. Indian law probably permits waiver of moral rights if it is in writing and meets the ‘reasonableness' standard.  For example, a waiver is more likely to be upheld if it is revocable and applies to specific alterations or modifications of copyrighted work rather than an irrevocable blanket waiver, particularly if the author had no bargaining power when the waiver is granted.
        i.            Sonia Baldia, Intellectual Property in Global Sourcing: The Art of Transfer.
      ii.            38 Georgetown Journal of International Law 499, spring 2007.
    iii.            Mira T Sundara Rajan, Moral Rights in the Public Domain, 2003.

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